Said in CommitteeBeta

Exactly as spoken.

House Judiciary Committee

March 10, 2011
Video Transcript

Bills discussed (5)

Bill Title Sponsor Status
HB1352 · 3 mentions in transcript, chapter
Matched: “…ending time with us this morning. You are recognized to run House Bill 1352. Thank”
Pre-2017 bill
HB1021 · 2 mentions in transcript, chapter
Matched: “Vice Chair Wilkins. Members, this is House Bill 1021 for Representative Lee. place to concur in a Senate amendme…”
Pre-2017 bill
HB1817 · 2 mentions in chapter, transcript
Matched: “HB1817”
Pre-2017 bill
HB1410 · 1 mention in chapter
Matched: “HB1410”
Pre-2017 bill
SB750 · 1 mention in transcript
Matched: “Senate Bill 750, and that's the Prison Reform Bill, passed out of the”
Pre-2017 bill

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Speaker 1 0:00
We'll call this meeting to order. With no objection from the committee, we are going to go out of order. We're going to take House Bill 1817 by Representative Woods first today. And Representative Woods, if you will have a seat, you are recognized to present House Bill 1817 to the committee. Thank
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Representative Jon Woods Unverified 0:29
you, Mr. Chair, and thank you, committee members. And at this time, I'd like to request the Chair's permission, if I can allow the Mayor of Springdale, Doug Sprouse, to sit beside me while I do the presentation, also Mark Hayes with the Municipal League. That'll be fine. Those gentlemen will come forward and take a seat at the table. I promise to be brief. I would just like to just mention, you know, regarding the bill, I've made, you know, I've tried to make everybody on the committee happy. And when I first ran the bill, I was asked to put in custodian, and I did that. And then I was asked to take it out and put in legal guardian. We've left that in. I've been asked to exclude DHS. I've done that. And also make this bill not apply to those under ages of 13 as far as parents being held liable for children under the age of 13. I think I've really tried to go out of my way to respect the will of the committee, and I've also passed out an article that was recently done by Doug Smith with Arkansas Times regarding the problems that we face as a city regarding the price tag involved for graffiti in the community. And I would really just, I know that we've debated this and discussed this a lot. I would ask for a due pass, and I appreciate your time. Thank you, Representative
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Speaker 5 1:55
Woods. Are there questions? Representative Walker. Yes, I know that I
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Representative John W. Walker Unverified 2:06
was one of the persons who had some questions before. And as I thought about it, I have even more as to the wisdom of the bill. I saw something on TV which reflected parental abuse by manners, and you recall the Bad Seed and movies like that, where children are incorrigible almost genetically in some cases, and they may not have control of themselves. What do you do in those situations where a parent has done all he or she could to try to discipline or corral a person, and then that person engages in this kind of conduct? Maybe has even tried to prevent it. Do you still hold that parent responsible as a matter of law for the destruction and make that, in effect, a crime? And I call it a crime because you are requiring that the person make a payment regarding damages to a city, state, or county. Representative, and I would
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Speaker 14 3:33
be happy to address that from a mayor's perspective. Let me give, and I know time is important here, and I'll be very brief, but Springdale has, we have had this problem growing over the years. Until last year, Springdale was like, I think, almost all, if not all, other cities in Arkansas, that the burden of cleanup of this graffiti fell to the property owner. Therefore, that property owner was actually victimized twice because it's so important that it come down in a timely manner in order to not encourage more graffiti that I think most cities, at least most that we've looked at, also have ordinances that require the property owner to take the graffiti down within a certain number of days. So it was like that property owner, through no fault of their own, was being victimized twice. They not only got hit with the graffiti, but they also incurred the burden and the expense of getting it cleaned up in a timely manner. Springdale has been very proactive in this in that we've spent a lot of our resources in order to put a program in place that takes that burden off our property owners who, through no fault of their own, have had their property damaged. it's been a many prong approach it's not only the equipment that we had to buy and the hire that we had to make and train to do the graffiti removal but we've also outlawed the selling of spray paint to anyone under 18 in Springdale by ordinance we have talked with our juvenile court system and asked that they work with us in helping to hold the parents and the juvenile courts more responsible. I just think it's a tool in our tool belt. It is something that, and while most people talking to me would never hear me tout much of what California does or suggest that we do it here, California does have a great experience a lot longer years than what Arkansas has with this issue, and they have a law that that does allow this in cases of defacement of property and damaging property. To your point, and probably Mr. Hayes is probably better to answer this, but I'm going to go ahead and do it anyway, and he'll probably wish I'd shut up. But when you ask the question in these specific cases and probably these rare cases, I believe isn't that the work of the court that determines those things when these things go that far, when
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Representative John W. Walker Unverified 6:25
these things are litigated? Here's the problem. Parents, in most cases, are not really fully aware of the conduct of their children when they leave home. And they cannot monitor them 24 hours. and children do things that are childish. And there's a federal law, 504, and several others that take that into account and even require public officials and school districts to have certain behavior modification considerations for them. So when you start dealing with children and their behavior, there is a concern that you take into account the children as well as their circumstances. This is just absolute. This is just absolute. And it says that if a child does something you don't like, which is graffiti now, which will be something later, if it's graffiti now and you all don't like to see it on your streets, that you can hold a parent responsible. But there's no proof here that's required, no culpability. I mean, there are no criteria for punishment. I mean, it's sort of like there's a presumption that when a graffiti occurs and you see a kid do it, or you think you see a kid do it, that kid is presumed guilty. I mean, there seems to be a presumption of guilt here. And the American justice system has a presumption of innocence. How do you get around that, Mr. Mayor? I'll just say I don't see it that
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Speaker 14 8:04
way, and I think anything that we can do to encourage parents to be aware of what their kids are doing in the middle of the night, I think, is a good thing for everybody.
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Representative Jeremy Gillam Unverified 8:15
Thank you. Thank you. Representative Gillum. Thank you, Mr. Chairman. I have
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Speaker 5 8:27
a motion at the appropriate time, sir. All right. Any other questions by committee members?
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Speaker 22 8:32
Is there anyone who wishes to speak against the bill? For the bill, what is the motion?
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Speaker 5 8:52
I move do pass. All right. We have a motion do pass. Representative Woods, would you like to close?
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Representative Jon Woods Unverified 9:01
Mr. Chair, thank you very much for your time and committee members. I really appreciate you allowing me to bring this bill back. And this is a serious issue, and you're really, really helping me out with your vote today. I'd ask for your vote for this bill. It would mean a lot to me. Thank you.
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Speaker 5 9:18
All right. We have a motion before us. All those who would favor the motion do pass. Would you say aye? Aye. Those opposed? Aye. Your bill moves out.
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Speaker 28 9:37
Do pass. Mr. Chair, thank you, committee members. He's going to
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Speaker 30 9:45
go get Tyler. Okay. Oh, great. Where's
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Speaker 31 9:48
Andrea Lee's bill? Where's Andrea Lee's bill? I'm going to run that real quick.
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Speaker 28 9:55
Mr. Chairman, what is that number? All right. All right, committee members,
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Speaker 38 10:21
if you would turn to 1021.
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Chair Unverified 10:49
Representative Chairman Williams, you're recognized. Thank you,
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Representative Darrin Williams Unverified 11:10
Vice Chair Wilkins. Members, this is House Bill 1021 for Representative Lee. place to concur in a Senate amendment. This is a bill that we saw that we passed out. The Senators decided to make the bill a better bill, and Representative Lee would like for you guys to concur in the amendment that was placed on the Senate side. Basically, what they did was to make the – this is the throwing of bodily fluids. You guys remember this bill. If you throw bodily fluids on a person, you have to know that it's a certified law enforcement officer, that's what was added on the Senate side, as well as you can't just leave bodily fluids somewhere. You actually actively have to do something like throw it on someone, not just passively leave it there, and they come in contact with it. So this made the bill a better bill, and Representative Lee would ask you to concur
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Speaker 7 12:02
in the Senate Amendment. All right. Other questions for Representative Williams? Is
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Speaker 5 12:10
there anyone in the audience that wishes to speak for or against this concurrence? Do we have a motion? We have a motion that do pass. All those who would favor, would you say aye? Those opposed?
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Speaker 24 13:04
Thank you. Members, just a few housekeeping matters.
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Representative Darrin Williams Unverified 13:08
Senate Bill 750, and that's the Prison Reform Bill, passed out of the Senate on yesterday, and it's going to make its way to the House and be over here next week. Without objection, we'd like to schedule that for a special order on Tuesday of next week, and I will entertain discussion about this. This is a very large bill. We've had several meetings on it. However, if we're moving too fast and you'd like for us to postpone that a day or so, we don't mind doing that. But if you do not object, we'll schedule that for a special order of business on Tuesday
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Speaker 49 13:43
at 1030. Any objections? Mr. Gillum? I have a question, Chairman. Yes,
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Representative Jeremy Gillam Unverified 13:50
sir. What is the anticipated length of discussion from the Chair? Are we going to need Tuesday and Thursday? You know, what are we looking at here? That might depend on if we're going to take two days, then we might want to get started on Tuesday. The length
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Representative Darrin Williams Unverified 14:06
of discussion is hard to gauge in this committee. I can assure you from the person presenting the bill, we will not have a lot of testimony. We will probably have myself and maybe two other people, but we want to answer every question that's asked to make sure that you all understand what we're doing with the bill. It is a large bill, and we don't want to move too fast. So if that is a concern, we'll slow down if you need to catch up and read and ask additional questions. I hope that we can get this bill out in one committee meeting thank you mr. chair so without objection we'll set that special order of business for I will say 1030 and we may be able to clear a few housekeeping matters for the first 30 minutes members the next without objection the next order next item will come before us will be 1352 by resident Tyler and I'm told she's on her way and I know there's some folks here I promised her we would wait a few seconds so we're going to give her just a few seconds we'll take a pause here and if she gets in we'll go if she doesn't hear soon we'll just proceed down our list. Representative Tyler, welcome to House Judiciary. I know you're busy chairing public health. You guys have cameras and a huge crowd. We appreciate you coming and spending time with us this morning. You are recognized to run House Bill 1352. Thank
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Speaker 59 16:06
you, Mr. Chair and members. I'm a little out of breath.
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Representative Linda S. Tyler Unverified 16:11
I ran. All right. Let's see. Let me get just a little bit, get my breath while we're talking or while we're waiting. All right. Mr. Chair, we are – I have with me Russell Gunter. May I go ahead and introduce him? You can. Sure. Go right ahead. Thank you, Mr.
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Speaker 66 16:35
Chair. Committee members, my name is Russell Gunner. I'm an attorney with Cross Gunner, Witherspoon, and Gauchus. I practiced
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Speaker 67 16:41
labor and employment law in Arkansas for over 36 years. I'm here on behalf of the Arkansas Society for Human
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Representative Linda S. Tyler Unverified 16:53
Resource Management. Thank you for being here, Mr. Gunther. Thank you, Mr. Chair. House Bill 1352 is in no way trying to retreat on civil rights protection. I just want to say that again. It is in no way trying to retreat on civil rights protection. That's something I've spent my career in human resource development, human resources for many, many years, making sure that civil rights are protected. So I just wanted you to know that I believe that. Secondly, I believe, and I think you do too, that we should let the legislature, not the Supreme Court, determine our laws. And I think this is an effort to make sure that that happens. And then thirdly, I believe this bill returns the law to what the legislature intended when the Civil Rights Act of 1993 was passed. So those are the three things it does. I will ask Mr. Gunther, if he will, to go into more detail on the specifics of the bill, and then we'll be glad
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Speaker 67 18:13
to take any questions you might have. The Arkansas Civil Rights Act was passed in 1993. In 1991, there was a bill that was introduced that the business community had a great deal of concern with because it had an unlimited liability and didn't mirror the federal liability on Title VII in the Americans with Disabilities Act. The bill was pulled. Governor Clinton appointed a civil rights task force. I was a member of that task force. We worked on a bill, on a compromise bill. The big issues were whether the bill would mirror the federal remedies under the Title VII and Americans with Disabilities Act, whether the bill would extend beyond employers with 15 employees, and whether the statute of limitations would be expanded. And the deal that was cut, at least as far as my involvement with the Arkansas Human Resources Association, is that we would not oppose a bill that lowered the threshold of coverage to nine employees that doubled the statute of limitations from six months to one year, but we would adopt the federal remedies. And the bill was not opposed and passed in 1993. Subsequently, because of some quirky language in the bill, Well, the Arkansas Supreme Court in November of last year held that in the case of an employment retaliation issue, an individual could be held liable under the Arkansas Civil Rights Act. That is a departure from the federal remedies under federal law. An individual supervisor cannot be held liable under either Title VII or the Americans with Disabilities Act. And it's also clear, even under the Arkansas Civil Rights Act, for discrimination, an individual supervisor cannot be held liable. The employer is strictly liable. But the Arkansas Supreme Court indicated that
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Speaker 66 20:25
in the case of retaliation in an employment context, not discrimination, but retaliation, that an individual supervisor could be held liable.
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Speaker 67 20:37
We believe that this is a departure from what was intended by this legislature and what the law should be. It sets Arkansas apart from many of its neighboring states. There's no individual liability in Texas. There's no individual liability in the civil rights statutes in Oklahoma, Louisiana, Mississippi. And we just feel like the Supreme Court has made a wrong decision. One of the things that we have done in redrafting this bill is to ensure that there is no individual liability of first-line supervisors, HR managers, things of that nature. But we have added in a provision that if an officer director is actively involved in an act of discrimination, that they could be sued individually, which is an expansion of the law right now. Right now, the law is that they could not be sued individual for discrimination. With this change, they would be able to be sued. So the bill allows a plaintiff that believes they've been discriminated against to get to the big fish, to get to the employer under a strict liability provision, and they could get to an officer director who was involved, and therefore the director and officer liability policy. which actually does expand the scope of whom can be held liable under the discrimination and retaliation provisions of the Arkansas Civil Rights Act. What this boils down to, the Supreme Court decision has given a trial tactic to attorneys who can sue the employer and an individual now, which will basically double the cost of defending these lawsuits, a cost that's not that employers in Texas and Oklahoma and Louisiana and Mississippi don't have, doubles the cost of litigation, which obviously increases the chances of settlement. We believe that this issue of allowing this trial tactic was not ever intended by the legislature when it passed the bill in 1993, and the purpose of this
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Speaker 66 23:01
bill is to return it to that original
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Representative Darrin Williams Unverified 23:04
intent. MR. So does that conclude your presentation, Mr. Gunter? MR. Yes. MR. Ms. Tyler, does that conclude your presentation? All right. We've got several questions for you. If you don't mind, the Chair will start with a few questions. Mr. Gunter, can I get you to explain so to make sure I heard the expansion that you suggest this look
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Speaker 67 23:32
is provided for in this bill? That's correct. Under the current law, the courts are unanimous that
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Speaker 66 23:38
in a discrimination, employment discrimination case, an individual, whether it be a first-line supervisor or a human resources manager or a director or an officer, cannot
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Speaker 67 23:48
be sued under that statute. Under the amendment as it's provided, if an officer or director of a company is involved in the decision-making process that is discriminatory, then they could be sued
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Speaker 66 24:03
individually, which is an expansion beyond what the current law is. Is that expansion
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Representative Darrin Williams Unverified 24:10
consistent with 42 U.S.C. 1983 under the federal law? For example, a state policeman, for example, acting under the color of law could be sued individually. So that's just making consistent with federal law and not really an expansion. You're just
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Speaker 67 24:27
making consistent there again, right? No, the Arkansas Civil Rights Act has three very distinct provisions. One deals with employment discrimination. One deals with individuals who act under color of state law, deprived
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Speaker 66 24:40
people of civil rights, which is completely separate and distinct with different remedies than the employment
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Speaker 67 24:46
provisions. And then the third is for people who commit hate offenses, and that's completely inseparate. Okay. I just
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Representative Darrin Williams Unverified 24:52
want to understand that. Let me ask a couple of questions. Ms. Tyler, you suggest this is not a retreat from the Civil Rights Act, but are we, in fact, limiting who may be sued under the Civil Rights Act and that what we're doing, at least in this context, we're limiting who may be sued? MS. Mr. Chair,
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Representative Linda S. Tyler Unverified 25:12
I think what we are attempting to do is to return it back to what the legislature intended, which was that the employer would be held responsible and could be sued. And in addition to that, as Mr. Gunter has said, we are expanding that to also include directors and officers who are engaged in the management of
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Representative Darrin Williams Unverified 25:34
the company. MR. Well, this case that you suggest, which was a November 2010 case, it inks fairly dry on this case, CalOAV practice management services, Inc. Is that correct? MR. That's correct. MR. You suggest there is some quirky language. And as I read the statute, it says no person shall discriminate against an individual because of such individual good faith, blah,
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Speaker 67 26:00
blah, blah, blah. But it's no person. What's quirky? What's not clear about no person? MR. Again, the Arkansas
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Speaker 66 26:09
Civil Rights has three distinct issues. There are employment discrimination provisions. There are provisions with regard to persons who violate civil rights under color of state law and persons who commit hate offenses. The provisions for employment are the remedies for those are very different than the remedies for people who violate a person's civil rights under color of state law or commit hate
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Speaker 67 26:35
offenses under those particular statutes, an individual, a person can be sued individually. And that's the provision that
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Speaker 66 26:44
the Supreme Court dropped down and looked at. They didn't look at the employment provisions. They went down and looked at the retaliation provisions
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Speaker 67 26:53
that applied to hate offenses and to 1983 offenses and pulled that
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Speaker 66 26:59
language up there. So the quirk you suggest is that the
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Representative Darrin Williams Unverified 27:03
Supreme Court just used the wrong section of the code to apply? Does
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Speaker 67 27:09
that just work? That is my belief. I think the bill was not drafted entirely clearly to reflect that, but, again, my belief is that was the intent.
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Representative Darrin Williams Unverified 27:20
Okay. Well, of course, lawyers disagree, and I'd have to disagree with you on that point. Let me ask you a couple of other questions. You said this is going to mirror federal statutes, particularly you mentioned Title VII and ADA. Right. Is it not correct that there are several federal statutes that actually allow for individual liability? For example, does the
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Speaker 67 27:40
Fair Labor Standards Act allow for individual liability? In certain circumstances, it does, but the Arkansas Civil Rights Act, the prohibitions in the Arkansas Civil Rights Act mirror the prohibitions in Title VII and the ADA.
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Representative Darrin Williams Unverified 27:52
Okay. What about in the FMLA? That also allows for individual liability, correct? That's correct, but the Arkansas
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Speaker 66 27:58
Civil Rights Act does not cover those. So we're just trying to
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Representative Darrin Williams Unverified 28:01
make it a mirror of federal law. I'm suggesting there are several federal laws now. I'm not as familiar with those as I am the Security Exchange Act 34, since that's the practice that I do all the time. And for sure we're able to sue in individual capacity under Section 1934 of the Exchange Act. Would you agree with that? Yes. Okay. Tell me how if I have an accident, a car accident, I can be sued, not on purpose. I hit someone accidentally, I can be sued individually. Yet, if I am an employee, I can intentionally discriminate against somebody, but yet you suggest that I should not be sued for an intentional act when I can be sued for an accidental
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Speaker 67 28:45
car wreck. Well, the issue becomes, under the employment discrimination provisions, it goes back to the employer being held strictly
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Speaker 66 28:52
liable. There's not a respondent superiority issue here. In other words, the employer cannot say, well, my supervisor was acting outside the scope of his employment, and therefore you shouldn't be able to sue me.
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Speaker 67 29:03
You should have to sue him for that car wreck. Under the Civil Rights Act, the employer is strictly liable. They cannot raise
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Speaker 66 29:12
the issue or raise a defense that the employee was acting outside the scope of his employment. If the supervisor discriminates, the employer is strictly liable. MR. And what's the
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Representative Darrin Williams Unverified 29:22
reason for requiring that the officer have a stock or a stake in the company before he can be sued? Why would they have to have ownership in the company before being sued, as your bill suggests?
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Speaker 92 29:35
MR. We made an amendment on that particular provision, and I'm looking to see if MR. I thought that was still in
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Speaker 66 29:46
there. MR. It may still be in there. I just
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Representative Darrin Williams Unverified 29:49
want to make sure before I answer. on in section 2, page 2 and 3, a member of a covered board of directors unless a member retains an ownership interest in and participates in the direct management. So you would limit that to someone who actually, I could be a board member but not having the ownership so I wouldn't be sued, yet my fellow board member sitting next to me who may have ownership could be sued. How do you distinguish between those two and why you
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Speaker 67 30:12
would treat them differently? The drafter put that in, quite frankly, and that's an area that we can work with. So that's something you might
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Representative Darrin Williams Unverified 30:19
be willing to remove? Sure. Okay. Well, we've got a couple other questions. I'm going to pause and let Mr. Steele ask a couple of questions. Thank you, Mr.
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Representative Nate Steel Unverified 30:29
Chairman, and you're a tough act to follow. I'm not going to be able to sign any U.S. Code or Supreme Court cases, but just so I understand the goal of the legislation, could you tell me again, you're here on behalf of You're here on behalf of the Arkansas Society of Human Resource Management, is that correct? That's correct. Could
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Speaker 76 30:47
you tell me a little bit about what that organization does in
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Speaker 66 30:52
general? The organization is a group of, well, it's human resource professionals that work for employers around the state. There are eight or nine chapters throughout the state, and there is a central state council, which is I'm the government affairs director on that state council. The human resource profession is very concerned about this bill. They're very concerned about discrimination. One of their primary functions is to eliminate discrimination. Their other primary function, one of the reasons they want to eliminate it, is to limit liability. And if they get sued, whether it's a meritorious or a non-meritorious case, and they have to double their cost of defense because they're suing an individual as well as the employer, It just increases the cost of doing business, and the human resources professionals, two of which are here to testify, are concerned about that and concerned about the chilling effect that it's going to have on recruiting people into these positions.
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Representative Nate Steel Unverified 31:50
So does this organization regularly take positions on tort reform and other types of bills and issues before the legislature? With regard to employment matters, yes. Okay. And very briefly, if you could, you mentioned a little bit about scope of employment, and that's something that I'm a little bit curious about. I didn't see a lot of that language in the bill. Could you tell me what the current law is concerning employees acting within the scope of their employment and what the bill would do perhaps to change that? That's the last question I have.
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Speaker 66 32:20
Thank you, Mr. Chairman. The general rule with regard to holding an employer liable for the actions of an
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Speaker 67 32:28
employee is called respondent superior. And an employer generally has a defense if an employee is acting outside the scope of their authority or responsibilities, the employer can raise that as a defense
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Speaker 66 32:42
to being sued. Under the current Civil Rights Act, and we're doing nothing to change it, that defense is not available to employers. If a supervisor commits an illegal act of employment discrimination, the employer is strictly liable. reliable. I cannot raise that defense. Members,
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Representative Darrin Williams Unverified 33:03
any additional questions, Mr. Walker? I thought you might have some questions on this subject, Mr. Walker. You're recognizing. I have several if you don't
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Representative John W. Walker Unverified 33:17
know. Sure. Go right ahead. Let me ask, Russ, were you the losing lawyer in that
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Speaker 76 33:24
case before the Supreme Court? No, I was not. Actually, there was the Mitchell Farm was representing the employer
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Speaker 67 33:31
and the Friday Farm was representing the employee. That's
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Representative John W. Walker Unverified 33:37
for the rare. Now, is it fair to say that most civil rights cases, whoever brings them, are usually lost employment cases? I would say
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Speaker 67 34:00
in my experience, not so much in the early years of my practice. I'm saying as of now. As of now. Yes. My experience has been that the cases have become more frivolous and the employees do not win nearly as many as they used to. Employers?
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Representative John W. Walker Unverified 34:19
Employees. Employees, right. So that it's a rare case where employees, that is, aggrieved persons, win anyway in a district court jury determination. Isn't that the case? I don't
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Speaker 67 34:35
know if I'd say rare, but it's not nearly.
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Representative John W. Walker Unverified 34:39
They don't win as many as they lose. And is it fair to say that the number of retaliation cases that have been won in the last three or four years by plaintiffs on any Civil Rights Act in Arkansas is very few? I wouldn't say very few. Well, what would you say
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Speaker 76 34:57
the number would be? Well, I don't know that I know a number. You cannot say more
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Representative John W. Walker Unverified 35:02
than two or three. Isn't that fair to say? If that. that I've represented people on.
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Speaker 112 35:11
No, I can't. All right. Now, you read the other cases as well. Sure. And
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Representative John W. Walker Unverified 35:16
you don't know of those either. Now, the second thing is most of these cases are dismissed on summary judgment,
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Speaker 67 35:24
aren't they? In our office, probably somewhere between 50% to 60% are dismissed. Which means the people don't actually get a trial. They
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Representative John W. Walker Unverified 35:31
do not get a trial. All right. Now, the next thing is that only a few of these cases are brought under the Arkansas Civil Rights Act. Isn't that correct?
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Speaker 76 35:41
Under before the Supreme Court's decision, yes. I expect after the
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Speaker 67 35:46
Supreme Court's decision, most of this litigation will
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Speaker 112 35:50
move to state court. Now, basically, you have one decision from the Arkansas
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Representative John W. Walker Unverified 35:55
Supreme Court that's favorable to an employee that you're relating to. Is that correct? Just one. Just one. So you, in 21 years, you've had one case, 1991 to 2011. In terms of
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Speaker 112 36:09
a Supreme Court decision? Arkansas Supreme Court decision. That I felt was wrong, yes, one. You don't consider the Arkansas Supreme Court to be a liberal court, do you? In
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Representative John W. Walker Unverified 36:24
some respects, I do, yes, sir. But not in civil rights, though, do you? Relatively so, yes. Now, in terms of tort liability, picking up on where Chairman Williams mentioned, if a person drives a truck and causes an injury to another person, And the owner of the company, the company being a person, the person can be sued, and also the driver as well. Is that correct? That's correct. All right. And that goes back to common law? Yes, sir.
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Speaker 67 37:05
All right. Again, that has the respondent superior issue. The employer has a defense of saying the employer is acting outside the scope of his authority. I understand. Yeah.
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Representative John W. Walker Unverified 37:19
Now, you're talking about the intent of the legislature in 1991? In 1993, yeah. 1993. You were on the committee? I was not on the committee, no. Well,
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Speaker 76 37:34
I thought you indicated that you were in 1991 on the committee. I was on the,
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Representative John W. Walker Unverified 37:38
in 1991, I was assigned to the Civil Rights Task Force. Task Force, all right. Now, I would like to know, especially since I'm a lawyer, maybe some other lawyers would like to know, How do you determine legislative intent of a legislative body under the current state of law? I mean, is that something that can
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Speaker 67 37:56
be determined? As I understand it, there are no records kept. There's no way to really determine
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Representative John W. Walker Unverified 38:02
it other than look at the statute. So how can you tell what the legislative intent, tell this body
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Speaker 67 38:09
what the legislative intent was in 1993? Because I was involved in negotiating on the task force. I was involved in negotiating with Representative Bill Walker, who had sponsored the bill. And we had aired our concerns, and the agreement that we had made was that they would adopt the – we would not oppose the bill, extending coverage to nine employees and doubling the statute of limitations if they would accept the federal remedies. Well, here's the point. In terms of legislative intent,
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Representative John W. Walker Unverified 38:38
you were not a member of the legislature. That's correct. Representative Tyler was not a member of the legislature at the time. That's correct. And there's no one here from the legislature who was present at that time to address the issue of what the intent of the legislation was at the time. Is that correct?
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Speaker 122 38:58
That I'm not aware of. I'm not
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Representative John W. Walker Unverified 39:00
aware of anybody that is. So you're suggesting to this body that it adopt your position that the legislature did not intend to cover this behavior.
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Speaker 67 39:09
I'm just relying to this body what my experience was in 1993. All right. Now, isn't
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Representative John W. Walker Unverified 39:15
it true that when we go to court, courts in these kinds of cases do not let you address legislative intent? That's correct. All right. Why should you bring that before this committee as a compelling reason for changing the law?
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Speaker 67 39:33
Because I think the history of the enactment of the bill is very important to the
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Representative John W. Walker Unverified 39:44
reasons of why we want to make this change. Now, when you say that the states that
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Speaker 76 39:54
have departureed from liability and retaliation situations are Mississippi, Oklahoma, and Texas, those are the
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Speaker 67 40:00
ones that – The individual under their state Civil Rights Act cannot be sued individually.
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Speaker 76 40:07
Only the employer can be sued. It mirrors federal law under Title VII and the American Judicial Act. But in most
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Representative John W. Walker Unverified 40:12
states which have civil rights laws, they have civil rights commissions, don't they? Some do, yes. Arkansas doesn't have one. That's correct. And in most of those states, the individuals can be sued. Isn't that correct? I would not say that's correct. Well, you don't. All right. You can't say it's not correct. The research that I've done
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Speaker 67 40:31
on the surrounding states, that's not correct. I'm talking
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Representative John W. Walker Unverified 40:34
about the nation. We understand what we're trying to get away from is being like Mississippi with respect to education, for instance,
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Speaker 67 40:41
and with respect to treatment of people. We'd like to get more like Texas
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Representative Darrin Williams Unverified 40:47
and Oklahoma. Well, I don't know about that. Mr. Walker, you and I have both been pretty liberal. Mr. Gunner did bring up a lot of things outside the scope of the bill, so I'm allowing you and myself to question a little bit on some of the things he said. But if
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Speaker 128 41:02
you'd rapidly bring it to a conclusion
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Representative John W. Walker Unverified 41:05
and try to nail them to the bill, that would be appreciated. I will. Now, tell me, what happens when an individual wishes to retaliate? Well, first of all, pardon me on this,
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Speaker 112 41:20
does this cover people who work for the state of Arkansas?
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Representative John W. Walker Unverified 41:27
My understanding is it does, yes. so an agent of a state may not be sued and then you would agree that the state cannot be sued so if the state can't you agree that on the 11th amendment the state cannot be sued for damages is that
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Speaker 67 41:44
correct the state can raise the defense of sovereign immunity I'm not sure that they've ever raised that with regard to
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Representative John W. Walker Unverified 41:51
a claim of civil rights Well, but at least you cannot get money damages from the state, which means that a person who's aggrieved may be in a situation, whoever you defend, whoever you sue, if you remove the individual, he may be in a situation where he wins the lawsuit, she wins
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Speaker 67 42:10
the lawsuit, and can get no money. Again, I'm not aware of any circumstance for any state agency or entity has asserted sovereign immunity with regard to a civil rights claim.
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Representative Darrin Williams Unverified 42:21
Okay. They do it. Anyone else on the committee have any questions? Seeing none, we have several people that have signed up to speak both against and for the bill which is on the list. On the against side, Donna Morey from AEA. Good morning. I'm Donna Morey, president of the Arkansas Education Association.
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Speaker 135 42:55
Donna, make sure your mic's on.
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Speaker 136 43:00
Is it on? Bring mic's on. Okay. It's better now. Thank you. I'm Donna Morey, president of the Arkansas Education Association. We represent educational employees from custodians all the way to superintendents. The bill exempts the legal responsibility that the very makers of employment decisions, that their official actions have a discriminatory effect. The manager or board of a school district or business should not be exempt from the consequences of their discriminatory action. Any employee should have the right to receive damages, both compensatory and punitive, for intentional acts of discrimination currently in law. Thank you. Thank you, Ms. Morey. Members, any
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Representative Darrin Williams Unverified 43:47
questions for Ms. Morey? Thank you, Donna.
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Speaker 128 43:54
Donna Meriwether. Please, Ms. Meriwether,
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Representative Darrin Williams Unverified 44:06
introduce yourself and tell us who you're with.
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Donna Meriwether Unverified 44:09
Is that on? My name is Donna Meriwether. I am representing the Arkansas Society for Human Resource Management. I currently serve in a role at Summit Bank as Senior Vice President and Human Resources Director. We would like to speak for this bill as an employer and on behalf of the human resource profession, and Russell talked on this just for a brief moment, and in my world, recruiting and promoting and trying to hire supervisors and managers is critical to our organization. First of all, we need good supervisors and managers to do the job. We as a company, of course, support the laws that prohibit discrimination. We share that with our supervisors. We take them through training. We accept the responsibility for that. It would create a great financial liability for us if our managers and supervisors were to be sued individually based on their role in our company. In addition, I just want to testify on behalf of the bill and speaking for it from an employer's standpoint and from the Society for Human Resource Management Association. Thank you, Ms. Merriweather. Members, any questions for
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Representative Darrin Williams Unverified 45:37
Ms. Merriweather? Ms. Merriweather, do you accept questions? Yes. Mr. Steele has a question for you.
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Representative Nate Steel Unverified 45:44
Still, you're recognized. Thank you, Mr. Chairman, and thank you, Ms. Merriweather. I'm not sure whether this is relevant or not, but if you are sued individually under the current law, would you be responsible for your own defense, your
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Donna Meriwether Unverified 45:59
own legal costs, your own, as far as all that goes? As an officer of the bank, I would have protection, insurance protection on that, and would have assistance with that. Most, actually, most all of our managers would not. I would, to be quite honest. So the other
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Representative Nate Steel Unverified 46:14
managers would be responsible for their own legal defense?
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Representative Darrin Williams Unverified 46:16
Their own, yes. Thank you. Thank you, Mr. Chairman. Ms. Mayweather, I think we've got a few more questions. If you don't mind, it's up to you. Would you
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Representative Kim Hammer Unverified 46:29
mind taking questions? No, I don't mind. Let's see if Mr. Hamler has a question. Thank you, Ms. Mayweather. Would you explain for me, just so I can be better educated, why you are afforded protection in your role, but you as an institution do not afford that same protection to your managers who, by my way of looking at things, are more involved with people. Would you just educate me as to why you are and they are not?
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Speaker 152 46:48
Please, ma'am. Well, I think it goes back to how the law has been previously structured is that they have not been held liable before. They would be now. And could I tell you today that we'd provide that coverage? I can't do that. It's not that I agree or disagree. It's just that it hasn't been kind of at the top of our list to be able to provide that for our managers. They haven't been in that situation.
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Representative Darrin Williams Unverified 47:20
Ms. Merriweather, follow up on that. Does it matter the level of that manager? I mean, most of the time it's office and director liability. If it's a first-tier manager, that person probably would be covered. Isn't that correct, typically, in most situations, kind of a high-level manager? Yes,
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Donna Meriwether Unverified 47:34
sir. You're right. So certain managers would be covered. I certainly would if they're an
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Representative Darrin Williams Unverified 47:39
officer of the bank, yes. Right. Okay. Any additional questions? Mr. Walker, you recognize?
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Representative John W. Walker Unverified 47:45
So you have a situation where an employee who may or may not be a management employee but is supported by management regularly demeans, say, women. Right. And that has happened over a period of time. and several women decide that they want to sue the company and the person, they want to keep the person from continuing to do that, but they also want damages from you, that person can't be sued, the person who's engaging in the conduct? Well, the
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Speaker 152 48:20
way I understand the way it is today and what we're talking about today is that that opens that avenue up for those women that want to sue that person. Now, as an employer, if we have a situation, and I can only speak from my experiences right now myself, if we have that experience and we have that situation in our company, we would probably have conversations with the person that has been discriminating against You know, I can't divulge confidential information, but we have a process that we would take action against a person. One of our managers, if they were not doing their job appropriately and if they were discriminating against any employee in our organization, it's our job to counsel with them and take appropriate action. All right, so what you're saying
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Representative John W. Walker Unverified 49:25
is that you want to be the one to determine what happens to the person who discriminates while working in the course of employment for you, and then you reserve the right to discipline and not discipline, and you don't want the aggrieved person or persons to have a civil remedy at law against that person. Is that correct? i think
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Speaker 152 49:51
the company itself is responsible for that but you can
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Representative John W. Walker Unverified 49:56
keep that same person on the payroll and let him or her continue in my example to demean women and berate them or whatever don't you think that that sends a wrong message whatever conduct you want to engage in in the workplace you can but you and the employer who's injured does not have a civil remedy against the employee, especially if the company chooses to retain that person. But
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Speaker 152 50:21
we also know that discrimination is illegal. And even though you're saying to me that we get that choice, we still have to abide by the law. Okay. Thank you.
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Representative Darrin Williams Unverified 50:35
Any additional question, Ms. Merriweather? Ms. Merriweather, thank you very much for your testimony. Now I'm turning to the against side. Robert Newcomb, I believe. Mr. Newcomb, you're recognized. Thank you, Mr. Chairman. Please state your name for the record. Yes,
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Speaker 168 50:58
sir. Tell us who you're with. I'm Robert Newcomb. I'm
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Speaker 169 51:00
an attorney in private practice here in Little Rock. I'm not representing any particular group. I'm representing, if I may say, those who have been discriminated against. I've practiced law in the civil rights area since 1972. 73, I'm sorry, starting out originally as attorney for inmates in the Arkansas prison system as an employee of the state, attorney general's office, and private practice since 1979. Now, one of the things that was talked about by the last person, it said for discriminatory acts, this bill only deals with retaliation. The Arkansas statute did not originally, in 1993, if I'm correct, have a retaliation provision in it at all. The retaliation provision that this bill is attempting to amend was added by the legislature in 1995. after I don't know why as Mr. Walker said I wasn't out here at that time so I can't speak for the 1995 legislature but they had had two years of experience with the Civil Rights Act of 1993 and then amended it. One of the things I think that when we're talking about retaliation that this is where the person has gone and filed their suit and then that person, that individual, decides I'm going to punish them for exercising the rights that this legislature gave them. Now, all I see is that we're doing something that is regularly talked about in public forums, and that is imposing personal responsibility on the person who chooses to retaliate by firing them, harassing them, bothering them, because they went and did what the law allows them. If that same employee was summoned for jury duty, and this legislature said you retaliate against them for jury duty, it's a criminal offense. In federal litigation, that employee is liable as a private employer under 1981, 42 U.S.C. section 1981. One, I can sue, or my client can sue, if they are African American, a private individual who retaliates against them for filing a race discrimination complaint. Women can do it in federal court under certain statutes. It's not under Title VII, but Title VII has a whole different set of remedies. the employer there faces the chance that the federal government is going to be the one soon. And we haven't set it up where Arkansas brings it. So I'm asking that the committee not pass this out. The legislature wrote a very clear statute. I disagree with Mr. Gunner strongly that there's a quirk in it. It was fairly straightforward language. Any English teacher could read it and tell you what it said. and again the retaliation is a significant problem and I think all this bill, all the statute did was say the person who does it and it's fairly straightforward on what is retaliation so you don't have to be a lawyer to know that wait a minute because they filed a complaint on discrimination I can't come back and say you're fired so this may not even reach down to the lowest level people because they might not have the authority to do the retaliatory acts that the law has required. The first-line supervisor in very few places I'm familiar with has that degree of authority where they could impose it unless they went and just made their life miserable. And I've had clients who that has happened to where they've complained about being groped and then been given very, very hostile and intimidating situations at work after they've exercised their rights. So I ask you to not pass it.
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Representative Darrin Williams Unverified 55:37
Thanks for your testimony, Mr. Newcomb. Will you take questions? Yes,
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Speaker 170 55:47
sir. Members, any questions? Mr. Shepard? Thank you, Mr. Chairman. Mr. Newcomb, I have just a few questions, and I guess I'm asking you because you're
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Representative Matthew Shepherd Unverified 55:57
an attorney, and I'd like to hear from an attorney's viewpoint. Presently, as the law stands, an individual or a person who retaliates can be sued individually. That's what, as I understand it, the Supreme Court has stated
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Speaker 169 56:14
in the November or December decision. Yes, sir. It did expose the individual. If they had discriminated, it was only if they retaliated after the person exercised their right to bring a cause of action in circuit court for
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Representative Matthew Shepherd Unverified 56:30
the discriminatory act. Okay, and you led me to the next question I had, which was a person who discriminates is not subject to individual or personal liability under the Civil Rights Act.
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Speaker 169 56:44
Under the Arkansas Civil Rights Act, they're not. There are some federal statutes in the civil rights area
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Speaker 170 56:54
where they could be, but... Okay. Now, to a scenario that I think maybe you touched on. If we
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Representative Matthew Shepherd Unverified 57:01
have a supervisor, it could be someone in management, whatever the case may be, who's the one who delivers the message that you're fired. The message came down from someone else. Is that manager right now who's just delivering the message, who's the only point of contact with the employee, is that person subject to individual liability right
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Speaker 174 57:30
now? They have to be the one who had the intent. You have to have an intent to retaliate. If I'm the messenger, I'm not the party who is responsible. it's not a
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Speaker 169 57:46
just because I'm standing there and I pass on the message from the boss then it's the boss who had the intent and that's the one that would be responsible
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Representative Matthew Shepherd Unverified 57:57
or the higher supervisor I just wanted to make sure we were clear
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Speaker 170 58:05
on that now the other question I have which has been alluded to to some degree and I'd like for you
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Representative Matthew Shepherd Unverified 58:13
to touch on again And as the law stands right now, do you believe it to be consistent with
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Speaker 178 58:21
the similar federal laws that are in place?
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Speaker 174 58:28
I'm not going to avoid it. It's not identical to the Title VII portion on race or gender discrimination. If you go over and look at 1981,
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Speaker 169 58:43
which applies to private companies, private individuals, it would be consistent. Our statute is not completely a mirror of it anyway in a different area. While we prohibit discrimination for an individual with disabilities, we did not copy the federal statute, the ADA, where it also makes it illegal to discriminate if you believe the person to be disabled. We didn't do that. So we have not had a complete mirroring
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Speaker 179 59:20
of the federal statutes anyway. Thank you. Mr. Lugum, thank you for
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Representative Darrin Williams Unverified 59:29
your testimony for this committee. Anyone else for, want to speak for the bill? I'm sorry, go right ahead. I don't have you signed up. But please state your name, or maybe I'm overlooking it, I apologize. Please state
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Darren Kuhn Unverified 59:48
your name for the record and who you're with. Thank you. My name is Darren Kuhn, and I appreciate
▶ Play Suggest a correction Report an error
Representative Darrin Williams Unverified 59:54
committee members. I'm sorry, Mr. Kuhn. You are on
▶ Play Suggest a correction Report an error
Darren Kuhn Unverified 59:56
here. I apologize. You did sign up. I apologize. Thank you. Thank you for this opportunity to address you today regarding House Bill 1352. My name is Darren Kuhn, and I'm before you today representing the Human Resource Professional Association of Northwest Arkansas, where I sit on the board of directors, and I am also the immediate past president. I'm also here today on behalf of the Arkansas State Council of Human Resource Management, where I'm a co-chair of the state legislative affairs area of the council. First, I want you to know, and I just want to emphasize this, having listened to this dialogue here this morning. HR professionals are strongly committed to principles of non-discrimination and more pertinently today, non-retaliation. That is an unacceptable pattern of behavior in any organization, something that we stand strongly against. Is the job of the HR profession to carry out the practical work of ensuring that employers comply with federal, state in local laws that relate to principles of non-discrimination and non-retaliation, I'd like to give some of the practical examples that we as HR professionals are engaged with on a daily basis. Now, I'm not an attorney, so I'm not going to be able to spar back and forth with you on the nuances of the law, but I'd like to invite you into my world just for a second so you can kind of understand what we deal with, you know, HR professionals statewide on a daily basis. We develop and we implement organizational policies in consultation with legal counsel regarding non-discrimination. We train on non-discriminatory hiring practices. We orient new employees on workplace values and acceptable workplace behaviors. We provide employees that bring complaints to our attention with a sense of due process. We ensure that they've been properly heard out, that their complaints are investigated in a timely manner and followed up on. We also support appropriate disciplinary actions against any employee who's found to have committed an act of discrimination or retaliation. We also monitor performance appraisal systems, and we facilitate nondiscriminatory compensation systems. As such, I believe that HR professionals are uniquely positioned to give voice to this issue. We are the ones who sit daily at the table with employees who have a conflict between them. We hear them out, and it's our job to find a remedy that's appropriate in each of those situations. Last year, the Arkansas Supreme Court, as I understand it, decided that an individual that could be a supervisor, or a manager or a person like myself, an HR professional, could be charged with retaliation in dealing with one of these situations. And what I would want you to know today is that HR professionals statewide are very concerned about this. Our concern is that in the very act of addressing these issues when they arise, that a disgruntled employee could charge us with retaliation for simply doing our jobs. And that's a real concern of ours. I think the other points that I was going to share have already been mentioned by the other presenters. And so for the sake of time, I'll conclude my comments, but
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Representative Darrin Williams Unverified 1:03:28
entertain your questions. Mr. Powers and then Mr. Walker.
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Speaker 1 1:03:32
Mr. Chairman, I'd like to make a motion at this time that we limit debate to each side at five minutes. Second. Proper
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Representative Darrin Williams Unverified 1:03:42
motion. All those in favor, aye. Opposed, no. We are on the side for Ms. Tyler, Mr. Powers, you're going to leave time for Ms. Tyler to close for a minute. MR. That is correct. Okay. That's right. All right. So that didn't include you, Ms. Tyler. We'll leave you time to close. We're limiting public testimony now to five minutes per side. Any questions for Mr. Darin? I remember the first name. I apologize. MR. It's Koon. C-O-O-N. Mr. Koon. All right. Mr. Koon. Any
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Representative John W. Walker Unverified 1:04:12
questions for Mr. Koon? Mr. Walker, you recognize? Chairman, Mr. Kuhn, human relations professionals are what we formerly called personnel directors at the time this bill was passed, isn't that correct, 91, 92, 93, 95? Yeah, I believe the nomenclature has changed the last
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Darren Kuhn Unverified 1:04:30
decade, but that was probably correct.
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Representative John W. Walker Unverified 1:04:34
All right. And human resales persons as personnel directors still represent the company, don't they? Actually, I see my view as... No, no, no, I'm just asking. You work for the company, and you basically represent the company, even though you may have a different role in it and a different perception
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Darren Kuhn Unverified 1:04:52
of your role. I represent the totality of the company. I mean managers and employees.
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Representative John W. Walker Unverified 1:04:56
All right. Now, not all companies have personnel or human resource directors, do they? I believe they should, but it's true that they do not. All right. And in those situations where you don't have that kind of protocol, it's up to either the supervisors or other persons to make employment decisions. Is that right? Someone has to do it. All right. Now, what you are asking us to do is to leave it to the company and its wisdom to determine whether retaliation or discrimination has occurred and to provide no remedy against the offending person, including yourself, if you have retaliated or discriminated against someone. Isn't that correct? Individually? No. Well, you were concerned that you may be sued. That's correct. All right. Now, what do you want us to do? Not allow you to be sued if you discriminate against someone intentionally or if you retaliate against someone for having taken advantage of the Civil
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Darren Kuhn Unverified 1:06:02
Rights Act as passed by this legislature? sir i i would not discriminate or retaliate against anyone intentionally first of all and in those circumstances where an allegation is made to that effect i would not want to be vulnerable to that lawsuit because of the cost
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Representative John W. Walker Unverified 1:06:18
of defending it the final question do you know of anyone who has in management who has ever admitted that he or she discriminated against another person or retaliated against another person because they engaged in protected activity. Not personally.
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Darren Kuhn Unverified 1:06:42
I have not known that person.
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Representative Darrin Williams Unverified 1:06:45
Thank you, Mr. Kuhn. Members, any additional questions for Mr. Kuhn? Mr. Kuhn, thank you for your testimony. Thank you. Now we're limiting the debate again to five minutes per side. We're on the fourth side, Trey Kitchens. You're a recognized speaker for the bill? I guess. MR. I'm against the bill. I apologize. Against the bill.
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Trey Kitchens Unverified 1:07:06
I apologize, Trey. MR. Thank you, Mr. Chairman. Thank you, committee members, for allowing me to speak against this bill today. My name is Trey Kitchens. I'm the president of the Arkansas Trial Lawyers Association. I am a lawyer, and I have been practicing employment law for the past 11 years. I'm in a little bit of a unique position because I represent both plaintiffs and I, in the past, have also represented companies and defended civil rights actions. I have listened to the testimony and the presentation for this bill, and in my mind this bill is about one thing. It's about limiting personal responsibility. What the bill seeks to do is it seeks to take the person who actually is the bad actor, the person who retaliated against someone bringing a civil rights claim and completely immunizing them from suit. And this is confusing to me because the swing that I've seen politically in this country has been for personal responsibility. This bill completely abrogates personal responsibility for the person who actually did wrong. That's what this bill does. Mr. Gunner, and Mr. Gunner is a friend of mine, I've worked with him, I've litigated with him. He has beaten me in civil rights cases. Mr. Gunner talked about the fact that companies would be held strictly liable if the company was subject to a civil rights claim. I want to be clear about this. A defense that you hear in every single civil rights case that I've dealt with in 11 years is the company said, we found out about what went wrong, we disciplined the guy, therefore you can't sue us. That has been in those summary judgment claims that Mr. Gunner has talked about. That is the basis of almost every summary judgment claim that is brought against plaintiffs in the 11 years that I've been doing this. The companies will say, we found out about it, we fixed it, therefore you can't sue. What the Arkansas Supreme Court has said is that an individual who retaliates, and two words are being used interchangeably here, and I think it's important to make the distinction. It's not discrimination members of the committee, it's retaliation and there are specific legal standards to even bring a claim for retaliation. What you have to do is chin the bar to bring a retaliation claim and what the law and the Supreme Court allows us to do currently is to sue the person responsible, the bad actor. That's who we want to bring the claim against because that's the person who did wrong. This bill completely eliminates that, and Representative Walker asked a very poignant question to the HR representative that was here a moment ago. If you are specifically retaliating against someone, do you want to be held responsible for that? And what did he say? He was very honest. He said, no, I don't want to be responsible for that. It is about immunization for the bad actors. I don't think that we as a state want to retreat from the civil rights of the members of this state. And the representative, is it Representative Steele that was asking about the federal statutes and being in compliance with federal statutes? 1981 FMLA, 1983 Fair Labor Standards Act, I can go on and on about specific federal statutes that impose liability. Question asked to Mr. Gunter about does this apply to state employees? This is going to immunize the jailer who retaliates against someone who exercised their civil rights. This is going to immunize everyone that is a bad actor and make the plaintiffs sue people further and further up the line. This bill will not limit litigation. This bill will encourage litigation because plaintiffs won't be able to sue the party responsible. We're going to have to sue everybody up the line because the actual bad actor is immunized from being sued. I think this is wrong on the civil rights level. I think it is wrong on a personal responsibility level. I think as a state, we don't want to be viewed as a state that is retreating from the civil rights of the citizens of our state. I strongly oppose this bill, and I appreciate you allowing me the time to speak against it, and I'll certainly
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Representative Darrin Williams Unverified 1:11:30
entertain questions. Thank you, Mr. Kitchens. We have Mr. Gillum with a question for you, I believe.
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Representative Jeremy Gillam Unverified 1:11:35
Thank you, Mr. Chair. You stated in your testimony there that the personal responsibility is what we should be going after. Absolutely. Okay. If that's the case, then why so many times are the companies included in with it in the lawsuits? Why dual suit? If we're really going after the individual who conducted themselves inappropriately, Why go ahead and sue all those people up the ladder? That's an excellent
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Trey Kitchens Unverified 1:12:05
question, and I can tell you why we do that. There are two reasons. Number one, if an individual supervisor retaliates, that can take a lot of different forms. Normally, if an individual supervisor retaliates against an employee, that employee will go to an HR professional, as you've seen here today, hoping to get some relief, hoping to get some sort of protection from someone retaliating against them. If the company does not step forward and protect that individual against the retaliation, that's why the company gets sued. The company can be guilty of discrimination, and the individual supervisor can be guilty of retaliation. They can be different things. And I can tell you that as far as Mr. Gunner said, there are more frivolous civil rights suits now. I've only been doing this 11 years, not 36 years like he has. I don't find that to be the case. Discrimination and retaliation happens in Arkansas every single day, and we need to be able to hold those people responsible. If the company does right, if the company gets a complaint of retaliation, I can tell you that company will not be successfully sued. The people who bring these kinds of lawsuits on the plaintiff's side, I can name on both hands. They're not a lot of us because they're hard suits, and they are well-defended suits by firms like Mr. Gunner's. and when he says 50 or 60 percent of his cases are dismissed on summary judgment, I promise you he's being modest. These are difficult lawsuits. We sue companies when companies don't do right. There's no such thing as a frivolous civil rights lawsuit because they're expensive to bring, they're difficult to bring. We are hemmed in by the very statutes that they are now seeking to make even more difficult for us to bring these claims. That's why we have to sue the company, and that's why we want to sue the individual who actually did it. The man who retaliates against a woman because she won't have sex with him, I want to sue that man. I have a wife, and I have children, and I don't think they should be subjected to that kind of behavior, and I don't want to sue just an amorphous company. I want to sue the man who did it. Thank
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Speaker 203 1:14:13
you. May I ask one follow-up? Absolutely, Mr. Gullin. Maybe the statistics, you
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Representative Jeremy Gillam Unverified 1:14:17
might have them off the top of your head, you might not, I don't know, but how many times has the company sued along with the individual? Is that 50%, 60%, 70% of the time?
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Trey Kitchens Unverified 1:14:28
I can tell you that until the Supreme Court made this ruling recently that clarified the law, suing the individual and the company was not a particularly common thing that happened. I can tell you that also there are more discrimination suits than there are retaliation suits. Retaliation suits have a much higher standard to be able to demonstrate. You can complain within the company about discrimination, and the company can then do something, and then that supervisor can take action against you. You didn't sufficiently complain to even bring a retaliation suit. So what you're talking about does not happen commonly. Okay.
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Representative Darrin Williams Unverified 1:15:05
Thank you, sir. Thank you, Mr. Chairman. Thank you, Mr. Gilliam. Members, any additional questions for Mr.
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Speaker 170 1:15:12
Kitchens? Mr. Shepard, you recognize? Thank you, Mr. Chairman. Mr. Kitchens, I have a few questions. One, what's
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Representative Matthew Shepherd Unverified 1:15:19
your feel with regard to the Civil Rights Act as a whole? I mean, the Arkansas Civil Rights Act as a whole, do you think it has served its purpose? Are there further changes you think should be made? I mean, as I understand, it was implemented, what, 20 years ago? I mean, it's served the state for 20 years. What's your view on whether it's been a good act, whether there's more to be done, or, I mean, what's your view on that? I think
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Speaker 202 1:15:47
it has been a good act. I can tell you that when I bring civil rights claims, and this
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Trey Kitchens Unverified 1:15:53
is a decision that each lawyer has to make as far as bringing it in federal court under Title VII or bringing it in state court under the Arkansas Civil Rights Act. It has been my practice generally to bring it in state court and bring it in federal court but include a claim for the Arkansas Civil Rights Act. I can tell you that the damages caps for the Arkansas Civil Rights Act were set over 20 years ago. They hadn't been changed in over 20 years. Times change, but those damages caps haven't changed at all. It's a good act. Obviously, I think any legislation can be made better, but it's
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Representative Matthew Shepherd Unverified 1:16:31
a good piece of legislation, certainly. And one of the things that I guess I'm trying to understand is the Supreme Court decision that brought about this statute or this bill was decided last year. What happened before then? Were lawyers just not making the claims? I mean, plaintiff's attorneys not making the claim that there was individual liability? Was the Supreme Court saying there is no individual liability and last year changed their mind on that? Can you explain to me why was this issue not around in 95, 97, 2000? Because surely there have been plenty of civil rights cases that have been filed and litigated and ultimately appealed.
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Trey Kitchens Unverified 1:17:19
You would be surprised about that last part. the question being put on point to the Arkansas Supreme Court that happened last year that's when that question wound its way through the courts and got all the way up to the Arkansas Supreme Court where the federal court Judge Susan Weber Wright submitted this question to the Arkansas Supreme Court and said this is an unsettled question on Arkansas law and our Supreme Court took it and this is a process where the Arkansas Supreme Court doesn't even have to take questions posed to it, the Arkansas Supreme Court finally took the question and answered the question. The statute is read the same the entire time, and judges and circuit court judges have interpreted it differently. This is the first time that it has been put to the Supreme Court on a specific pointed question on is there individual liability for supervisors on a retaliation issue, not discrimination, on retaliation, and the Arkansas Supreme Court interpreted our law as they are supposed to do and said yes. Okay.
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Speaker 108 1:18:20
And I guess it brought me back to a comment you made earlier that kind
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Representative Matthew Shepherd Unverified 1:18:24
of piqued my interest on this. I believe you stated that previously, I think Representative Gilliam asked about how many times companies are sued along with individuals. And you said, you know, previously it was primarily companies and individuals were not sued. I mean, was there an understanding among the bar that there was no individual liability? why were they not sued representative I promise the bar
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Speaker 204 1:18:50
does not want me speaking for all of them I can tell you that personally I'm a member
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Speaker 210 1:18:56
of the bar and I don't want you to speak for me
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Representative Matthew Shepherd Unverified 1:19:00
I just am trying to understand why now why were individuals not being sued 5 years ago, 10 years ago, 15 years ago and I'm just trying to understand that because this is something I've been on both sides of these cases and And, you know, I'm obviously concerned that we do what's right and fair for all people. Thank you. I can go back 11
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Trey Kitchens Unverified 1:19:20
years because that's how long I've been doing these cases. I didn't sue individual supervisors because I try to bring the cleanest lawsuit I can and not give nice people like Mr. Gunner a very easy arrow to fire at me on his summary judgment motion or his motion to dismiss. I always want to try to bring a claim that will represent my client the very best way it can. And I can tell you, by way of history, I litigated in South Arkansas in El Dorado for about six years against one particular defendant for race cases. I was the subject of death threats. I was the subject of having my hotel room vandalized and things like that because there were African Americans in South Arkansas who dared to stand up. And I would have given anything to be able to sue the individual supervisors who testified like it was the 60s, and I mean the 1860s, not the 1960s, that sure we call them racial slurs. What else would we call them? Yeah, I would have loved to have sued that guy, and I couldn't do it then. I can do it now. Why back off from allowing the individuals in Arkansas to have their civil rights adjudicated? It's just wrong. Members, any additional questions? Thank you,
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Representative Darrin Williams Unverified 1:20:41
Mr. Kitchens. Thank you for your time. We have anyone else in the audience who wants to speak for the bill? Anyone else for the bill? Seeing no one, the time for has expired. We have 45 seconds left for Ms. Teresa Biner to speak for the bill. I mean, against the bill. I'm sorry, against
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Speaker 219 1:21:06
the bill. Thank you for letting me speak for my 45 seconds. I'm Teresa Beiner. I'm a professor at the University of Arkansas at Little Rock School of Law, where I am also the Associate Dean for Faculty Development. And I'm a law professor, so I can't say anything in 45 seconds. But I can say one thing that no one else has said about this bill who has spoken against it. And that is, if I was going to pick one aspect of civil rights that should have individual liability, it would be the retaliation claim. Studies show again and again that the thing that stops people most from asserting their civil rights is the fear of retaliation. Specifically in racial harassment cases, sexual harassment cases, and religious harassment cases, all of which are covered by the Arkansas Civil Rights Act, people don't come forward to assert their rights because they are afraid that they will be retaliated against. Retaliation protection is one of the most basic protections you can have in a civil rights bill, and extending liability to individuals strengthens that protection just that much more and encourages people. Thank you, Ms. Biner. Professor Biner, I
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Representative Darrin Williams Unverified 1:22:08
apologize. Your time is up. Okay. But we appreciate it. Thank you very much. Mrs. Tyler, would you like to respond and close for your bill? Yes, sir, Mr. Chair, we
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Representative Linda S. Tyler Unverified 1:22:24
would. I'd like Mr. Gunter to make a few remarks, and then I'll close. Thank you. You recognize Ms. Gunter. I want to
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Speaker 67 1:22:33
thank this committee for their interest in this bill and the very good debate that we're having on this bill. The one thing that's going under the radar, I mean, I understand there's an emotional issue about wanting to protect victims. I'm right there with you on that. But there are other victims that we need to protect here, both Representative Walker and Mr. Kitchens have testified that most of these cases are brought or dismissed as having no merit. MR.
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Speaker 38 1:23:03
Point of order, Mr. Chairman. MR. You recognize? MR. Yes, sir. When we established the for and against time limit, the understanding was given by the chair that the sponsor would have
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Speaker 224 1:23:13
an opportunity to close, not that other presenters would have an opportunity to respond. MR. Well, that's
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Representative Darrin Williams Unverified 1:23:21
what we said. Ms. Tyler, I'm going to allow Mr. Gunter, since we have been keeping time, just a couple of minutes to wrap up and then we'll let you close. But since he is not a member of the legislature, not presenting, he is basically speaking for the bill. That time actually has expired. But we'll give him a few minutes and then we'll like to
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Speaker 67 1:23:42
have you close. That's okay. I only need a few minutes. Most of these cases, as has been recognized today, are dismissed as without merit. But if this individual is sued, they still have to get a lawyer, they still have to pay for the cost of defense, and they become the victims of lawsuits from which there is no merit. So there should be a balance. Thank you. Thank you, Mr. Gunter. Ms. Talley, you
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Representative Darrin Williams Unverified 1:24:02
recognize a close for your bill. Thank you, members.
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Representative Linda S. Tyler Unverified 1:24:08
I do want to reiterate what I said at the very beginning. I do not believe that this is in any way trying to retreat from our civil rights protection. We still have the remedies in place. We still have the plaintiff still has the opportunity to sue the accountable party and that's the employer. And we have added the opportunity for them to sue the officers and directors who are engaged in the operation of the business and they are the employer and the officers and directors are the people who should be held accountable. They're the ones who create that workplace to begin with, and they're the ones who should be held accountable for discrimination and for retaliation. As an employer and working for a large corporation for many years, our first-line supervisor position, our management position, our human resources position, our personnel director position, our Representative Walker, are the people who are responsible for carrying out the direction of the company, the direction of the officers, the direction of the president and the vice presidents of those companies. Those are the ones that are putting their job on the line every day and don't have the resources most often to fight a retaliation lawsuit. So when you're thinking about protecting the little guy, We've got the little guy who's also in a supervisory position that we need to be taking care of as well. And I would just ask for a good vote. Thank you, Ms. Tyler. Members, Ms.
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Representative Darrin Williams Unverified 1:25:54
Tyler, it's closed for a bill. What's the pleasure of the committee? Mr. Walker? Mr. Rice, substitute motion. We have a substitute motion of due pass. Mr. Walker, will you yield and allow this due pass to proceed? Yes, sir. Thank you. Members, the motion before the committee is due pass. All in favor, aye. Aye.
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Speaker 49 1:26:25
Opposed, no. No. No. One, two, three, four, five, thanks. I'd like
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Speaker 128 1:26:36
a roll call. I have one hand for roll call, additional hands for roll
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Speaker 198 1:26:43
call. Two hands for roll call. Ms. Stillman, can we call the roll?
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Speaker 231 1:26:48
Oh, Mr. Patrick. Representative Baker. Representative Powers. Representative Rice. Aye. Representative Nichols. Representative Nichols. Representative
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Speaker 230 1:27:24
Rogers. Representative Rogers. representative
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Speaker 231 1:27:29
slinkered representative steel representative representative wilkins representative wright Representative Vines. Representative Shepard. Representative Deffenbaugh. Representative Hammer. Representative Eubanks. Representative Branscombe. Representative Ratliff. No. Representative Gillum. Yes. Representative Walker. No. No. No.
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Representative Darrin Williams Unverified 1:28:56
It's nine. With nine ayes, the bill fails. Thank you, Ms. Tyler. Thank you, Mr. Chair. Thank you, members. Members, we had an 11 o'clock special order as soon as we got to it is what we did say. So now we're going to recognize Vice Chair Wilkins to run House Bill 1414. Thank you. Thank you, Mr. Chairman and committee.
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Speaker 38 1:29:34
If I could invite some individuals, Jane Ann Kitta, Dr. Kelly Olson, and former State Representative Don Creekmore to join me here. Which one? You may, Vice Chair Wilkins. Let's see. Is
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Speaker 244 1:29:51
this another bill, Bunville?
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Speaker 22 1:30:05
Which number? 1245. House Bill 1414. Thank you, Mr.
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Speaker 38 1:30:23
Chairman and committee. Appreciate the work of this legislature over the past few years on issues like this. Stalking is
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Speaker 22 1:30:31
a course of Vice Chair Wilkins, hold one minute, please.
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Representative Darrin Williams Unverified 1:30:38
Yes. The guests in the committee, if you have conversations, you can take them outside. We're having difficulty hearing. Let's come to order so we can
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Speaker 22 1:30:50
give Mr. Wilkins his proper attention. Thank you, Mr.
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Speaker 38 1:30:54
Wilkins. You recognize. Thank you, Mr. Chairman. Stalking is a course of conduct directed at a specific person and would cause a reasonable person to feel fear. And in today's age and time, as technology has expanded, we see more and more incidences that in my opinion could cause a reasonable person to fear for their safety. And I think it's important that we as a legislature, as those who are concerned about our citizens, a stand on this and other issues. For example, if a person were to leave a note on someone's door who has been stalking someone and that individual has moved, let's say it's a woman and she has moved and there's a note on her door which ordinarily might be a seemingly non-threatening gesture in and of itself, That would indicate to a victim of domestic violence that her offender has discovered where she lives and would reasonably put her in concern for her welfare. This bill will clarify the wording of current law, and it will hold bad actors more accountable. And I believe that that's something that all of us want to make sure happens. And at this time, I would like to turn to others who are here with me first to former Representative Dawn Creekmore. MS. Thank you. And I do want to take an opportunity
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Speaker 256 1:32:51
to thank you for the support of the bill I had in here Tuesday, first if I may. But thank you, committee, for allowing me the opportunity to speak to you again today about this very important bill. I'd like to share with you just a little bit of history about this bill. As you well know, I was in the legislature for six years. And shortly after my first term, some approached me about all of the issues that dealt with domestic violence. And I, knowing that I didn't know enough about how to close those loopholes by myself, I created a task force. We met every month for three to four years, and stalking was an issue that we discussed at just about every meeting. The present law is unenforceable. In the last 10 years, you could probably count on one hand the number of people in Arkansas that have been charged and convicted of stalking. And that is because the way that the current law is written, it's like a circle that never ends. You can never meet all the criteria. And so law enforcement hands are tied. And members of my task force were law enforcement officers, advocates for those of domestic violence, victims of stalking and domestic violence, Jane Anketa with Domestic Violence Coalition, and some very smart people, including attorneys. Yeah. Even attorneys. Anyway, now this next one, I don't want to laugh from, but anyway, last session I also got a little bit of assistance from Senators David Johnson and Robert Thompson, who I'm very grateful for assisting me in drafting this piece of legislation. We got it through the House last session, and you may or may not know, but I spent a lot of time in Senate Judiciary last session, and we got to the very end of session and yeah it was a regular date every Wednesday I was there and it got to the end and we just couldn't get enough Senate members in there we did run it we didn't have enough members and we just didn't get it passed so we're Senator Hank Wilkins is trying again I would be happy to answer any questions if I can when it comes to that point but we've We've got to do this for the people of Arkansas. You're going to hear testimony today about what the definition of stalking is, and I will pass it on now to Jane
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Jane Ann Unverified 1:35:42
Ann Keita. Thank you. My name is Jane Ann Keita. I'm the Executive Director of the Arkansas Coalition Against Domestic Violence. I think, and I still want to call him Senator Wilkins, covered the definition of stalking very, very well. It is a series of actions that individually may be legal, but put together and still fear in the victim. It can be the driving by your house, the letter, the sending of flowers, waiting in the parking lot outside your workplace. But when you put all these together, it's intended to and it does cause fear for the victim, for the target. I think it's important to realize and to look at the inventiveness, the persistence, and the obsessive nature of the stalker. And you can't understand that until you experience it by being the target or have a family member, friend, or loved one who is the target of stalking. It's serious. It's potentially life-threatening as a crime. Even in its less severe form, it permanently changes the lives of the people who are victimized by this crime, as well as their family and friends and possibly employers and co-workers. I had a man talk to me a couple weeks ago. He has a 21-year-old daughter who has been stocked for two years. She's an employee of a local bookstore. She came in contact with this individual as a customer in the store. Since that time, He has called her at work. He has called her supervisors at work. He has waited in the parking lot for her and watched her come and go from work. He has come into the store and intended to talk to her repeatedly, and he has sent her packages to work. She is afraid. This man is trying to protect his daughter. He's addressed legal avenues. There is nothing that can be done, and all I could do with him is safety plan with his daughter. Don't let her walk out to the parking lot by herself. Have her call the house when she's on her way home so you're waiting for her. There is nothing else I could do for this man to help his daughter. Can you imagine if it was your child being stopped and there was nothing that you could do to protect them and nothing that law enforcement could do to protect her? In 2009, the Bureau of Justice Statistics Special Report estimated that 2.4 million people were stalked during a 12-month period. That's a lot of people. It's a bigger problem than I think a lot of people realize. It can be a victim of domestic violence, sexual assault, or dating violence. Most of these assaults are premeditated. They're repeat offenders. They use strategies identified as classic stalking strategies, such as surveillance and information gathering. They select and ensure the vulnerability of their victims. We have worked very hard to get input and make a good bill. We use model code, and I'm hoping
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Speaker 259 1:38:59
that we can give law enforcement the tool that they need to help protect these victims.
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Speaker 265 1:39:09
Thank you. Thank you. Good afternoon. I was on Representative Creekmore's task force and worked with the task force, the lawyers and everyone else on the committee to create a bill that was modeled after the model penal code. The National Coalition on Domestic Violence through the American Bar Association has worked with states. In fact, 15 states in the last 18 months have changed their domestic violence codes to include some of the provisions that are in this new, in this bill, including the use of electronic surveillance and electronic communication because one of the problems that people are facing is that the ways that people communicate are outracing the law. And so what we're trying to do here is make this law stronger, as Representative Crickmore said, make it enforceable. We worked with law enforcement and with victims to figure out what would work for them, and this bill will work for them. And I'm happy to answer questions if the committee has any. Would you please state your name for the record? I'm sorry. I'm Kelly Olson. I'm a professor at the University of Arkansas Little Rock Bowen School of Law. Thank you, Ms.
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Speaker 148 1:40:14
Olson. Mr. Wilkins, are you ready to take questions? Yes, Mr. Chairman.
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Representative Nate Steel Unverified 1:40:21
Thank you. Mr. Steele, you should recognize. Thank you, Mr. Chairman. This question is for just anyone who wants to answer it. I'm certainly not pro-stalker, but it seems that we've, through protective orders, which serve a very good purpose, but we've extended them to everyone who you've had a cup of coffee with. And with more and more of these criminal statutes that deal with what I think are a lot of times personal issues between two people, are we not moving out of civil court where people used to get, say, restraining orders and things of that nature, and moving all of this into criminal court where we now expect prosecutors and law enforcement to handle personal issues between two people? If I
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Speaker 271 1:41:11
may, Representative Steele, this goes beyond personal issues. And I think one of
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Speaker 265 1:41:16
the things that Jane-Ann brought up and you talked about is that the context is really important here. We're not talking about one email too many or a former boyfriend who contacts a former girlfriend. We're talking about a pattern of behavior, the context of which drives fear into a person and should be criminally charged. We're not talking about a boyfriend-girlfriend episode. There are real fears that go on here, and hopefully you'll get to hear from a victim. But this is not, first of all, I would cripple that you can't get an order of protection because of a cup of coffee. And, in fact, one of the problems has been that orders of protection are harder to get for some people. But for stalking, it's a pattern of conduct over time that harasses a victim. And one of the issues that's important is it's the reasonable fear of the victim. It's not everyone. For some people, this starts out as very flattering. It's someone who's paying a lot of attention to them. But it goes beyond that, and it creates a real fear in the victim that they cannot do anything about civilly, and they need a criminal response.
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Speaker 273 1:42:27
I apologize for my sarcasm on
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Representative Nate Steel Unverified 1:42:29
the order of protection, but we have extended them to dating relationships, and it seems to me that's pretty hard to define. and oftentimes relationships that have gone no further than text messaging or e-mail have been considered dating relationships for purposes of religious protection, which are quasi-criminal and quasi-civil, so that's where I'm going with that. But are you not concerned on some level that, as I said, that with all of these criminal sanctions, we are basically removing these disputes of whatever nature out of civil court into criminal court? I don't
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Speaker 265 1:43:06
think that we're removing them out of civil court. I think we're creating an avenue for people for whom civil remedies weren't valid or they weren't able to use them. The dating relationship was important because many people, the extension of the order of protection to the dating relationship, which I worked on as well for Representative Creekmore, was because people can be in long-term dating relationships over a period of years, not just the text message short-term relationship that you're talking about. And for some people, they are able to resolve things civilly. But for other avenues, a lot of these stalkers are into control, are reasonable people to everyone else except for their victim, and the civil remedies just are not enough. So there are some cases that would absolutely not qualify under this bill as a stalking relationship, a relationship that's just gone bad or sour and someone keeps trying to contact someone without threats,
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Speaker 269 1:43:59
without putting that person into extreme fear wouldn't qualify here. So there are some boundaries
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Representative Nate Steel Unverified 1:44:06
on this. Just one or two more questions, if I might, Mr. Shannon. Are you familiar with the offense of harassing communications? Yes. And how would this pair with that offense? If you were to use a lot of these same techniques through technology, through emails or text messaging or something like that, would the offense of harassing communications not suffice? Why would this be necessary beyond that?
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Speaker 265 1:44:30
I think for some people, the harassing communications might suffice. But the pattern we're talking about here with stalking goes beyond just harassing communication. You could have a harassing communication charge against someone with whom you had no personal relationship before. With this, we're talking about some kind of intimate relationship. It didn't have to necessarily be an intimate, as close as a marriage or a long-term partnership. but there has to be some kind of other piece here. And stalking really is about more than just the communication. Communication, electronic or otherwise, harassing communication is a part of the stalking mechanism, but for many people there are more pieces to it than just that. Could you tell us very
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Representative Nate Steel Unverified 1:45:16
briefly, and this is my last question, what would it take to prove a prima facie case for this offense? What kind of evidence would you expect to see? You mentioned fear. I'm assuming that would just be testimony on the part of the victim. What other kind of evidence would you expect to see and would you think you would need to clear the burden of proof in order to have
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Speaker 271 1:45:40
a conviction on this kind of charge? I don't want to specify to what a particular judge is going
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Speaker 265 1:45:46
to be looking for for evidence, but the pattern of conduct is more than just the communication. It could be we've had, you know, Dead Roses, not to get into a Godfather movie, but, you know, the dead rose is delivered, the process of just contacting someone's employer many times, talking to the boss at work saying you're just concerned about this person because they've been working too much. And things like that could, in a particular case, mean that they are being stalked. It's not always going to mean that. So the context of a particular case is very important. But we do want to have an avenue for people who are being stalked in the context of messages, phone calls, things left on their doorstep, things left with their neighbors, contact with neighbors, contact with bosses, contact with their children's school, other patterns that would be individual to a particular case that would show this context and pattern that means that this is a victim and this is an offender that might differentiate it from other situations.
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Representative Nate Steel Unverified 1:46:44
Final question, Mr. Chairman. I think I said that last time, but I really mean it this time. If this bill is passed, would it provide for, I guess, double or triple offenses for the same activity? In other words, if someone were using text messages and things of that nature, and maybe they also had an intimate relationship that might qualify as a dating relationship, could they not be hit with a protective order, class communications, and nav stalking? Could they not be hit with all three charges for the same activity?
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Speaker 265 1:47:15
Not for the same activity, but there could have been someone who was initially charged with harassing and it eventually moved up to stalking and other pieces. The protective order is a part of the stalking order, so it wouldn't be done again. So it could be in place because of this or it could have been in place before this. But, see, there are different reasons why you might have each of those different charges filed against you, and it might be an escalation. A lot of times with domestic violence, we see an escalation that might have started off and harassing communication was enough, but then when they couldn't do that anymore,
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Speaker 274 1:47:49
then they escalated it to some other form of harassment.
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Representative Nate Steel Unverified 1:47:53
But the new charge would not supersede the previous charge, correct? So if you had a harassing communications charge in district court, for example, a protective order charge in domestic relations division of circuit court, and now a stalking charge charged in criminal circuit court, you would have all three charges going through different courts, correctly? Is that correct? One would not supersede the other, in other words, if
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Speaker 265 1:48:18
it were to escalate. The bringing of charges or the filing charges or someone being found guilty would not take away another charge that was already existing. Go
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Representative Nate Steel Unverified 1:48:35
ahead, Mr. Chairman. I apologize, Mr. Chairman. I'll just stop there,
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Speaker 170 1:48:38
Mr. Chairman. Thank you, and thank you for answering my questions. Thank you, Mr. Steele. Mr. Shepard, you recognize? Thank you, Mr. Chairman. I
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Representative Matthew Shepherd Unverified 1:48:49
have a question with regard to third-degree stalking. And I think when we talk about stalking, I've heard pattern of conduct. I know that that's utilized in some of the definitions, course of conduct. Third-degree stalking does not contain that language. and I'm wondering, it seems to me that that particular offense would be a one-time incident and I'm wondering what the difference might be between that and what would either be a harassing communication, terroristic threatening, or some type of assault.
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Speaker 270 1:49:27
I'm sorry, I thought there was
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Representative Darrin Williams Unverified 1:49:35
a course of conduct. I know in the F1A. I think it's
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Representative Matthew Shepherd Unverified 1:49:39
on page 4, Mr. Shepard, lines 1, 2 right there. Well, as I understand, that's the definition, but I didn't see that that was utilized. It's utilized in the other offenses. For example, first degree, it's knowingly engaging in a course of conduct. Second degree is knowingly engaging in a course of conduct. And then third degree is just knowingly commits an act that would place a reasonable person in the victim's position under emotional distress and in fear for his or her safety or third part. And I just would like some clarification there. Since we've talked about course of conduct, I didn't see it in that instance, and I wanted to see why in this case it's just a one-time incident.
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Speaker 288 1:50:30
That's a great question. And also to see whether that was something that should
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Speaker 255 1:50:41
state a course of conduct. And I'm not going to state whether
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Speaker 256 1:50:44
it should or shouldn't. I'm pulling this from my memory bank. But the reason the third degree was placed in there not as extensively as the others was because it is just a class A misdemeanor. And let's just take an example. Somebody calls someone's job. many, many times during the day. The stalker at that point doesn't care if that victim is going to lose their job or not, and they continue to call and continue to call, and they follow and they do whatever they can to interrupt that person's life. Well, currently there's nothing in place, but it doesn't necessarily warrant a Class D felony. And so this was placed in the bill so that law enforcement could get involved and say, look, this is leading to, right now we could slap you with a misdemeanor, which doesn't necessarily change the course of their life like a felony does, but they do now have some type of mechanism in place for law enforcement to say, look, this is not good activity. And like I say, I'm pulling that from a memory bank. I think what we
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Speaker 265 1:51:53
were to agree with what Representative Creekmore was saying I think that one of the pieces is that the emotional distress is still a piece of this and it significant mental suffering or distress we were thinking that it would not just be one event but an act in this case that put them under emotional distress and in fear of safety is really it's still that building up of events
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Speaker 274 1:52:18
it's still the context of a relationship to which someone has really terrorized someone else.
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Representative Kim Hammer Unverified 1:52:34
Mr. Hammer, you're recognized. Thank you, Mr. Chair. This is directed to anybody that would like to answer it. Two questions, if I may. On page four, lines 21 through 24, would you please educate me on why the immediate family was stricken out of this altogether and I don't see where that was covered in the rest and I may just be overlooking it. So could you explain why it was removed or pointed out to me where it was reinserted? I
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Speaker 269 1:53:08
believe that we took this out and you'll have to, this was last, this was for last
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Speaker 265 1:53:12
year, so I apologize if I'm incorrect, but I believe we took it out to, so that this would match with the dating relationship and the way that we had expanded on the orders of protection because it's not just an immediate family member that is subject to those orders of protection. And so for stalking, we did not need to define immediate family in
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Speaker 274 1:53:31
this bill any longer. That's my recollection of it. Okay. If I may follow
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Representative Kim Hammer Unverified 1:53:35
up on a question on that, help me. I'm going to give you a scenario and tell me how it would be impacted by this law. Say a husband and wife go through a rocky time and they get legal separation so they're not living together, and throughout the course of that time of legal separation, he or she begins, because you can go both ways, he or she stalks the other one. Are they going to be excluded from punishment because they are still immediate family, but they're legally separated, and would there be no recourse to punish either one of them if this is taken out?
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Speaker 265 1:54:16
No, sir. Jane Ann has just pointed out to me that in Section 1A1, we removed the bodily injury of his or her immediate family and the person. And since that was removed, I think that's why we took out the definition of what immediate family was. I
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Speaker 270 1:54:29
think it's only fair I respond to the hypotheticals a lot, Professor. Usually I'm on the other side of hypotheticals. But there is no, there would be no barrier to that person being charged under this bill. And, in fact, some of those people are the very people that
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Speaker 265 1:54:44
we are trying to protect with this bill because they haven't had other ways to have protection.
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Representative Kim Hammer Unverified 1:54:50
Okay. Thank you. And if I may, a follow-up question. Down on page 4, line 36, where it's dealing with civil liability for stalking, it says a person may recover actual damages. I can kind of paint the picture and see about the attorney fees, you know, if you have to hire an attorney to represent you and it goes to court, et cetera. But could you expand and educate me, please, on what the recovery of actual damages, what's an example of what that might be and why is that, if this is intended to be something that holds people accountable for their actions and be charged with a misdemeanor, et cetera, why actual damages? Could you educate me, please? Sorry, it's me again.
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Speaker 269 1:55:34
One of the reasons for actual damages in this case is that there are people that have
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Speaker 265 1:55:40
suffered actual damages, such as being harassed out of a job where they lose their job because someone has harassed them to the extent that the employer doesn't want them at their job anymore, someone who has lost time from work for injuries to go to doctors to do other things, people that have suffered actual economic liabilities due to someone stalking them and creating such a burden of harassment that they have additional costs that they would not associate with their regular life. Okay. And if you're in the room or not, I don't
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Representative Kim Hammer Unverified 1:56:14
mean to place you all at a disadvantage, but going back to the previous bill that we just dealt with in this committee about retaliation and everything, if somebody is fired and they lose their job through no fault of their own, would that not allow the person to take recourse against the employer and go after them if they were fired through no actions of their own? And I know you had somebody, I think, a lawyer down on that end. If I didn't miss her, maybe they want to be the one to answer that question. I'll just try to tie this together. Well, I'm
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Speaker 270 1:56:46
a law professor and a lawyer. Sorry, my apologies. I'm worse than a lawyer. Not that you are, but I didn't place you correctly.
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Representative Kim Hammer Unverified 1:56:54
You just wanted to find that, okay? Thank you.
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Speaker 270 1:56:56
I'm not sure if you heard me. I just said
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Speaker 265 1:57:00
I'm worse than a lawyer because I make new ones. Okay. Thank you. And if someone else wants to answer it, they can. But I was in the room for most of the discussion, not all of the discussion. And the difference would be that in some cases we're not saying that the employers did anything wrong, but it could have created a safety concern for the employer at their place of business. Now, we shouldn't fire people because they're victims of domestic violence. Absolutely not. And there are laws against that. But what we're saying here is that if a person had to do so much as move to another county or move to another state, they lost their job because of that. They've lost out on their income. They may not be able to go to work because someone has threatened their place of employment or is going to meet them there, so they are unable to go to work and they lose money that way. I'm in no way blaming employers. I'm saying there are situations where someone is not able to go to work because of a stalker, not because it has created an environment there that won't work for them.
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Representative Kim Hammer Unverified 1:57:58
Okay. And I guess one last question, if I may. Back on page 4, line 36, a person may recover actual damages. And then the phrase, and if applicable, and it goes on and lists all these other things, why would it not be applicable for why does that phrase, if I'm interpreting it correct, Why does that phrase, and if applicable, separate the recovery for actual damages from all the other things? Could you educate me on that, please? It's like they're separated by, there are two issues separated by that phrase, and if applicable. And if I'm misguided, please straighten me out on that. No, I can tell
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Speaker 271 1:58:43
you that this wording comes from the model statute, the national model statute, and
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Speaker 265 1:58:48
I'm not sure why they worded it quite that way, but it was based off the model statute. And I would say that one of the things might be that they're saying that in some situations there are only actual damages, and they may not have lawyers' fees or other punitive damages, in which case they wouldn't be liable. But I can't speak to why that language is in there
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Speaker 270 1:59:10
other than to tell you that it models what's in the national model, national penal code, sorry, the model civil statute. Okay.
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Representative Darrin Williams Unverified 1:59:22
All right. Thank you for taking my questions. Thank you, Mr. Hammer. Mr. Wright, you've passed, so now
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Speaker 1 1:59:30
Mr. Powers, you recognize? Well, I probably should pass, but I'm going to ask it anyway. Representative Shepard brought up a good point, and this is not a big deal, but I like the bill except basically for the point that was brought up regarding third degree. Now, I'm going back in my memory bank, too, and I think that I questioned some of the wording a couple of years ago, or was it two years ago, Representative Creekmore? Well, this third degree, in my opinion, mirrors Class A misdemeanor harassment or harassing communications very closely. And when I look over here and see that we can get civil damages, punitive damages, court, attorney's fees, and so on for a, it doesn't say that we can't get it for this A misdemeanor, but I know we can't get that for harassment that I know of. So that point brought up by Representative Shepard regarding the course of conduct, I mean, except for the issue regarding, you know, there's a protective order put into place, for the life of me, I can't see how this really is a standard above harassment. You don't
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Speaker 271 2:00:55
see how the misdemeanor is different than
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Speaker 1 2:00:59
harassment? No, ma'am. I understand they're both A misdemeanors. I understand that. That's what I'm saying. The statute is closely aligned to a class A misdemeanor of harassment. And I'm just wondering why. Why do we need both of them? the only difference I see in harassment and these third-degree stalking is the protective order. Do you want to address that? And if that's the intention, I'm fine with it because I like the other two parts of the bill. And here's why I'm asking the question because Representative Creekmore said earlier, you know, about it's hard to keep up with all the criteria, and I certainly agree with that. But I don't want to be coming back every legislative session and just trying to keep up with the criteria, but also, you know, we have a, and I hate to use the word redundancy here, that's not the right word, but it's simply that little part that kind of gives me a little concern about having civil liability against the aid misdemeanor, which, in my opinion, is harassment, or what's on the books now. If I may, for example,
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Jane Ann Unverified 2:02:21
in the scenario that I mentioned earlier, there was no relationship between this girl and the gentleman. There was no dating relationship, no blood relationship, no marriage or children in common. this child could not get an order of protection because there was no relationship. And in stalking, sometimes it
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Speaker 259 2:02:44
is a dating violence or domestic violence situation. Sometimes it's not. They're complete
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Speaker 1 2:02:51
strangers. Well, and that's fine. I mean, if that is the purpose, why it's there. But other than that, I don't see any reason for it to be here because I think we already have a law that would cover that. But that's fine. I'm not going
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Representative Darrin Williams Unverified 2:03:13
to harp on that too
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Representative John W. Walker Unverified 2:03:15
much. Thank you. Thank you, Mr. Powers. Mr. Walker, you recognize? Oh, Representative Gillum was before me. Okay. Let me ask you, Mr. Chairman, if I may, what happens in the case where you have a private investigator to employ it on behalf of a corporation or other person to observe the affairs of an individual. And that individual, upon learning that his or her affairs are being observed, decides that that's conduct that he or she doesn't like. Can that person file an action under this
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Speaker 265 2:03:58
provision for stalking? No, sir, he can't. There has to be a reasonable fear in severe emotional distress, and the fear for the safety would not be relevant against a personal
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Representative John W. Walker Unverified 2:04:11
investigator. Well, one wouldn't know that the person necessarily is a private investigator because the person would not be announcing it. And the person, by seeing the same person, let's assume it's a person of a different color. Being around that person two or three times within a week or so, may not that cause the person to have some fear and therefore invoke the provisions here? Not to the
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Speaker 267 2:04:43
extent that the person can get charged because the standard here that the
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Speaker 265 2:04:50
bill uses is knowingly harass another person. And the private investigator in the course of their
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Speaker 269 2:04:56
job is not, I would hope, doing it to harass the
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Representative John W. Walker Unverified 2:05:01
other person but to gather information well the person would have to though in terms of the burden of proof the burden of proof the person would could be charged and then he would have to prove that he's not knowingly engaging in forbidden conduct with
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Speaker 300 2:05:22
me doesn't this sort of really well
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Speaker 269 2:05:26
I guess my concern is that how do you
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Speaker 265 2:05:30
know the difference between an overzealous and obviously going beyond the usual bounds for a
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Speaker 302 2:05:35
private investigator and someone who's actually
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Representative John W. Walker Unverified 2:05:38
stalking someone else? This would allow anyone, would it not, who's in the presence of a highly emotional person, maybe even a person who has some illness, to imagine that a person who's accidentally or in the presence of that person over a short period of time is or perhaps is stalking that person.
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Speaker 271 2:06:03
Yes, that is true. They could do that. The concern would be to not
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Speaker 270 2:06:08
protect people who need protection because you have a few people out there who imagine that everyone is following them. We're talking about someone who's really stalking them. And I would imagine that there would be some instances where private investigators in the course of their job are overzealous and actually
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Representative John W. Walker Unverified 2:06:24
do stalk someone. Now, my next question, if I may. Do you have any empirical evidence of the scope of the problem that would allow you to provide an opinion as to whether this would increase the prison population? Mr. Walker,
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Representative Darrin Williams Unverified 2:06:39
I can answer that for you. This is a talk with the Senate Commission before the session this morning, and this is not going to have an impact on the prison population. So that's why you don't have an impact study. All right. Thank you, Mr.
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Representative John W. Walker Unverified 2:06:54
Chairman. Mr. Gilliam, you recognize. Thank you,
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Representative Jeremy Gillam Unverified 2:07:01
Mr. Chairman. I have a motion at the proper time.
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Representative Darrin Williams Unverified 2:07:06
Thank you, Mr. Gilliam. Members, any additional questions? That's all I have on the list. Seeing none, anyone in the audience that wants to speak against or for, let's
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Speaker 148 2:07:15
see. We have Mr. Rosenzweig. Jeff is, there he is, to
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Speaker 305 2:07:25
speak against the bill. Jeff, you're recognized. Jeff Rosenzweig, representing the Arkansas Association of Criminal Defense Lawyers. The context of this, as long as we're talking about context, this bill was written, the bill, the stalking statute was written this way 15, 17 years ago, specifically to be narrowly tailored so things would not get confused with the ordinary frictions of everyday life, of running into the same person at the grocery store or things of that nature. It was specifically put in there to get to the people they were trying to get and not be overbroad. The way this bill is currently written takes away that and sweeps way overboard and puts everyone at risk of being swept up in a vague statute. Professor Olson said, I think it was Professor Olson, one of the people said, well, these things individually are legal. Okay, well, how do you add a number of legal things into one illegal thing? The problem is you don't have proper notice. The bill also takes away stuff like the purposeful mental state and replaces it with a lower mental state of the actor. It does not require that the victim actually suffer any mental distress, just that someone could have. It changes the, as was pointed out with regard to the third degree stalking, one act, and then the definition of course of conduct is just incredibly over broad, talking about directly, indirectly, or through a third party monitors or communicates to or about a person. In other words, if I ask someone else about Mr. Walker, Representative Walker, two occasions, I've stalked him in this, or at least I've committed that particular prerequisite of stalking. And they've put in another provision, which says it is not a defense to a prosecution that the actor was not given actual notice by the victim that the actor's conduct was not wanted. So you have a situation where the person in charge can't say, you know, I see this person every day. You know, I work with her. I do this. I run into the grocery store. I was never told that this was a problem. You know, we've texted a hundred times back and forth. She never said, don't text me again. You can't even say that now. That's not even a defense according to the way this is written. Additionally, you now have a – it totally screws up the whole idea of lesser offenses because they're not touching the second-degree stalking, and it is now, I would submit, a more serious conduct than first-degree stalking. And it's going to cause all sorts of confusion in the courts. And, again, the actions you're trying to get are taken care of by terroristic threatening. They're taken care of by the ones that they're trying to expand it to, harassment, harassing communications, terroristic threatening, some of the assaults, orders of protection. And there's absolutely no need to pass a bill that is not going to give people adequate
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Speaker 307 2:11:02
notice of the conduct that is supposedly criminal.
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Representative Darrin Williams Unverified 2:11:07
Thanks, Ms. Rosenzweig. Any questions for Ms. Rosenzweig? Mr. Gilliam,
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Representative Jeremy Gillam Unverified 2:11:12
and then Mr. Steele. Thank you, Mr. Chairman. Real quick, Mr. Rosenzweig, going back to the statement that you made about taking individually legal things and combining them into something that is illegal, is that not what happens when a person makes a bomb? I mean, do they normally just take regular household chemicals and things that are legal and
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Speaker 305 2:11:37
they put them together into a dangerous combination that therefore creates a destructive force? Well, that, depending on what substances they have, but the
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Speaker 307 2:11:46
action of planting a bomb somewhere is something that could cause serious physical injury. Here you're not talking about actual any injury occurring of any sort, physical, mental. This bill, as is proposed, doesn't even require that the victim actually suffer any injury of any sort. Fair enough. Thank you, sir. Thank you, Mr. Chairman. Thank you, Mr. Gillib. Mr.
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Representative Jeremy Gillam Unverified 2:12:10
Steele, you passed me a question. Any additional questions,
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Representative Darrin Williams Unverified 2:12:13
Mr. Rosenzweig? Thank you, Mr. Rosenzweig. Anyone else in the audience want to speak for the bill besides those that present it? Is there a – was Mrs. Graham, Judy Graham, you recognize?
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Speaker 59 2:12:31
Speak before the bill. Hi, I'm Judy Graham. Thank you for allowing
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Speaker 312 2:12:41
me to be here today. I'm a victim of stalking. As a matter of fact, I live in North Arkansas, and I was afraid to come down here today because my husband lives here. We've been in a 22-month separation now. I'm one of these people you were discussing just a little bit ago where the law has not been there to protect me. I'm a separated person from this individual, and I have been stalked by him. Within the first year of our separation, the stalking behaviors included the following. Following me in about a public place, these all have been reported to the police. Multiple accounts of trespassing on my property. Multiple accounts with him being in my rearview mirror that I have photographs. How blatant is that, right? An incident of identity theft, this is not necessarily stalking, but this is a behavior that I've reported to the law enforcement and federal law agencies. Identity theft. Not only does he want to hurt me, he wants to take my identity away. And I suspected that he also has a part to play in the 15 leg nuts that I had loose on my car and occurrences, multiple occurrences of nailed tires. This is when he lived in North Arkansas. He most recently moved away in August of this past year. In keeping with the course of conduct clause, I really want to focus on a few things that's happened since that course of conduct clause that's in the current stalking law. And last year, the behaviors were so ongoing that I had to file for an order of protection. He actually followed me to a location, verbally harassed me in front of business associates. I did not get the order of protection, but I was awarded in light of the evidence sole custody of my children, and I still have sole custody of my children. In April 2010, he was talking with the mutual acquaintance survivors that shared with me, you better take a gun because she's a bitch. I'm not a bitch, but he thinks so, and if he were allowed to carry a gun, a convicted felon is not allowed to carry a gun, would he shoot me? I ask. Going into June of 2010, there's been multiple drive-bys by my house, witnessed by my children, my neighbors, myself, my friends, specifically a series of drive-bys that my daughter actually saw her dad when she was at the park with three of her friends, see him drive by my house, and I live just right beside the park. I can see the park from my house. He drove by my house four different times, and she saw him, and he got out of the vehicle and began walking to my house. She started running with her friends to my house, and he saw them, and he ran back to his vehicle. I came out of my house, and he drove by my house. 9-1-1 was contacted because my daughter was so distraught and described her dad's behavior as bizarre. I informed the police of these activities, and the next day I contacted the local chief of police, told him that I have very valid concerns and that I'm in fear of my safety and the safety of my children and I'm not understanding why these behaviors have been allowed to continue for so long without any help. That night, a friend of mine and I sat outside and we watched this man drive by my house three more times. Three strikes are out. I called 911. I tried to be patient. That's what God teaches me to do. After the third time, I called the police again. My husband was then found again at the park about to get out of his vehicle. Now, I want you to know that I also shared with the police, the chief of police, on this morning of this particular night, that this week I found a 7-inch hunting knife on my property. That's very scary. There is no reason for a 7-inch hunting knife to be in a thicket of trees behind my house unless there was someone that was going to use it. That evening, after the police contacted my husband at the park, he was told to go home and stay there, but he didn't. He got out after I told my friend he needed to leave about an hour later where I felt comfortable enough. He had to pass on the highway where my husband lived. My husband was backing out of his vehicle, ended up to following him around my rural community, out of my county into another county. Now my friend went to the police because he was now being harassed by this gentleman. I was not able to get anything more than a statement to the police, but my friend got harassment following in about a public place. I then met with the I then met with the deputy prosecuting attorney and I asked why was nothing being done about these ongoing behaviors now over a year in time I was pretty much told that it was a public road he could do whatever he wanted and since we were married he had a right to do so that is my house, he and I never lived in that house I do not feel like he has the right to drive by my house repeatedly He said he was doing it because his children live in that house. No, it's against the law for him to harass me. He was never held accountable for his actions. But I would like to share with you the horrific comment made by the deputy prosecuting attorney. When I shared my fear and concern, and I was very fearful, this was his suggestion to me. keep your shotgun handy in case he comes to your house and proceeds to blow your brains out then you would be able to defend yourself because they and he pointed to the local authorities they just got through with the court they may be down the road handling a DWI and may not be able to get it to you for 20 minutes I was mortified I still am my children were to spend the next two weeks at their dad because we were alternating two weeks summer visitation out of fear of being alone in my own home I went to Fulton County which is the next county over from Baxter County and I stayed with my mother and I sought medical treatment for the stress that I was enduring The children came back two weeks later The drive-bys persisted I spent time with my mom I prayed that the behavior would stop It didn't Within that first week of the children being back in my home I found another 7-inch hunting knife on my property This was reported to the police I also advised my attorney in August of 2010 we appeared in front of the divorce judge the next weekend the spouse moved to Little Rock here thank God I said I felt like that maybe the three hours distance would give me some time some space to regain my safety and security in my own home But that was short-lived. In August of 2010, I received a text message on the 23rd. It said, I hope you had a happy 16th anniversary, which was the day before. I learned that he was in town on our anniversary the night before. I call that stalking. I call that obsessive, unwanted behavior. How am I to feel safe and secure in my own home? The man shows up out of the blue. Sends me what you're calling us harassing communications. I call it fear. Later that day, that morning actually, he calls my children. He's in town. He wants them to go have lunch. I set my feelings aside. This is their father. I have to be the good parent, the good wife. You know, in divorce matters, you have to let your children see the other parent if you want to maintain custody of them. I know that my divorce is still pending. I put my personal feelings aside and I allow them to go. I moved next door to where my cousin lived and my aunt and uncle were visiting. when he pulls up he picks up the children and he comes over there where I'm at along with a friend of mine my cousin, my aunt and uncle and my cousin's girlfriend he proceeds to harass me wanting items of property which actually I put out some items by the road for him and he ended up pulling a knife on my friend. In front of my children, out of a simple comment that my friend said, hey, whoa, that's enough. After picking up, I contacted 911. An officer was dispatched arrived. Multiple witnesses gave their statements along with myself and the victim. I requested to have my children returned as I has sold custody of these children as I felt they were now in harm's way. The officer left. He said he was going to arrest him for aggravated assault and terroristic threatening. He told repeatedly more than once when he pulled that knife out on my friend, I am going to cut you. My friend is my friend. My friend is a threat to my husband, needlessly so. He was pulled over about an hour later after Ebola was issued. He was pulled over about an hour later after bootlegging what my children say from Missouri, ten cartons of cigarettes. He was not searched. His vehicle was not searched. The weapon was not asked for. My children were not returned to me. And he was let go. I did not see my children for four hours later. He was held, he was not held accountable for any of his actions. Myself, my friends, my family, over the multiple two-week visits, multiple visits to the prosecuting's office, the police office, the mayor, we were questioning why now felonious acts were not being taken care of. Why was the man not being held accountable for his behavior? We were told that the police report, which was actually incorrect, we were trying to get the police report to accurately reflect what was stated, which is really hard for a prosecuting attorney to defend a case in which the police report is not even correct, and to this day that is not even done. But the police report said assault in the third degree. And the Deputy Prosecuting Attorney's Office, the Prosecuting Attorney, stated that, you know, in the end it would be disorderly conduct, nothing at all. I would like for you to put yourself in my situation. Does that sound like disorderly conduct? I find offense because he did this in front of my children. Even though I was in town, he was not in town the night before. He was stalking me. This was on our anniversary again. I want you to understand that when the knife was pulled and the threat was made to cut my friend, the message was directed towards me. His actions in the past and now is to exert power and control in this relationship and to inflict fear. I want you to understand his actions are very effective. I am fearful of this man. and there's not a dang thing, I can get done about it. And when I see him next, I'll be asking myself, just where is that knife? He still has it. He doesn't care what he does with it. He doesn't even care that he does it in front of his children. I'll also be asking me who's really out there protecting me. And since December, the spouse has also, even though he's not up there with me, he's made trips up there out of the blue, November, December, January. I moved over Christmas break in December. And he does not know or did not know
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Speaker 313 2:26:03
where I lived. he had a police he had a birthday card delivered to my house in January for
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Speaker 312 2:26:12
my daughter on my birthday he showed up on my birthday to deliver a card after he had told his daughter her birthday is the 26th mine is the 22nd he called her on the 18th he said coming to Gaspel only got him in trouble and trouble sucks but he still showed up four days later on my birthday to deliver a card to my daughter to a house that he did not know I have an order of protection he's not supposed to know where I am now what do I do and I'm finishing up I promise I guess the best I can hope for is that being here today will make an impact on you and that by sharing my experiences being stalked over the past two years will prompt you to act on this bill. I ask you to please consider my story just once of countless people being stalked that seek protections from laws to protect ourselves, our families, our livelihoods, our freedoms. As the current stalking law applies, I am not being protected from the stalker's criminal behavior, and this behavior will continue. Is it that the law enforcement's hands are really tied, as I've been told? And that they cannot do anything for me because I am in a civil matter? Or is it that the law is just not designed to allow them to fully protect me? For me and others being stalked, time is of the essence in getting this bill into the hands of the governor. Frankly, our lives may depend on it. I've read a statistic that says that 76% of female murder victims have been stalked prior to their death. Being a stalking victim myself, this is a very grim and sobering statistic. Don't allow stalkers to continue to get away with criminal behavior and take the barriers out of the current law and give our law enforcement agencies a law that they can enforce and one that will offer justice and reparation for all stalked victims in the state of Arkansas. So thank you for your time. Thank you, Ms. Graham.
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Representative Darrin Williams Unverified 2:28:18
Next on the list is to speak against the bill. And, members, I want you to know we have lunch in my office. We're going to take a quick break after this, and then we're going to come back to hear one more bill. Hopefully we get done in time. But we have Tammy Harris who
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Speaker 320 2:28:43
wants to speak against the bill. Thank you, Mr. Chairman. I'm Tammy Harris, an attorney with the Arkansas Public Defender Commission. I can understand how you all must feel after hearing that testimony. And let me say, first of all, as someone who has heard this testimony time and time again in a courtroom, and I can understand what these victims go through. But let me say, I think as Professor Olson perhaps said, there have been, I think she said perhaps, six cases that have been filed on this statute and no convictions recently. I can say as someone who defends these cases and works with prosecutors on these cases, the way the statute is currently written, we have difficulty. I fear if House Bill 1414 is passed as you have it before you, there will be even more difficulty in pursuing prosecutions in stalking cases. There's some language, just briefly, because I know we're in a hurry here today, second-degree stalking, there's conflicting mental states. We have knowingly and purposely for you attorneys in the same section and also the misdemeanor section. And the way we've looked at the language, it is also a more severe act than the felony would be. And there are some other constitutional issues that we see that could be present here. And what we would ask you as lawmakers is to give us attorneys more clear guidance and not leave us with something more murky and more difficult to deal with once we walk in the courtroom and we're faced with these issues. And so for that reason, we're opposed to House Bill 1414. Thank you, Ms. Harris. Anyone else who wants to
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Representative Darrin Williams Unverified 2:30:31
speak for or against? We have a question for Ms. Harris. I'm sorry, Mr. Still, you may ask her a question.
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Representative Nate Steel Unverified 2:30:39
Thank you, Mr. Chairman. As an attorney and having, I know we're all very sympathetic to the previous witness, but having heard her testimony, can you think of many charges that could be brought that are already on the books that maybe, had it not been for her marital status or some other factors, could have been brought without
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Speaker 320 2:31:01
this bill becoming law? I think even despite her ongoing divorce proceeding, there could have been harassing communications charges, terroristic threatening charges. The stalking bill, even as it exists without 1414, certainly could come into play. There's an electronic, if I can find it, There's a use of electronic communication charge that could be brought. I mean, there are a whole host of charges that are there. More directly,
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Representative Nate Steel Unverified 2:31:24
specifically regarding the knife, would you not believe that would be a felony terroristic threatening charge? Yes. In my opinion,
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Speaker 255 2:31:31
it would be. And with using the
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Representative Nate Steel Unverified 2:31:33
knife on another person, would that not be an aggravated assault charge, which is also a felony? Yes, it could be. Okay. Do you believe if this law were enacted a year or two years ago, it would have done anything to make any difference in that particular case? No. In my opinion, no, sir. Thank
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Speaker 277 2:31:51
you very much. Thank you, Mr. Chairman. Thank you. Thank you,
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Speaker 135 2:31:55
Mr. Steele. Any additional questions? Thank you, Ms. Harris. Thank you,
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Representative Darrin Williams Unverified 2:32:02
Mr. Chairman and committee. Seeing no one else in the audience wants to speak for or against the bill, Mr. Vice Chair Wilkins, you are recognized to close for your bill. Thank you, Mr. Chairman.
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Speaker 7 2:32:15
In light of the time, I want to thank everybody who has assisted and who has testified today and would appreciate a good vote in helping to stop those situations where we have bad actors. Thank you. Thank you, Mr. Wilkins. Committee, what's the pleasure? Committee?
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Representative Darrin Williams Unverified 2:32:30
I'll make a motion we do pass. That's a proper motion. any additional discussion or questions. Seeing none, the question before the committee is due pass. House Bill 1414. All in favor, aye. Aye. Opposed,
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Speaker 86 2:32:45
no. No. I rule and those have it. We are going to roll call. You guys
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Speaker 322 2:33:10
are making this fun today. Mr. Raulston, please call the roll. Representative Baker.
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Speaker 230 2:33:16
Representative Powers. Yes. Representative Rice. Yes. Representative Nichols. Representative Nichols. Yes. Representative Rogers. Representative Rodgers Representative Slinkert Representative Steele Representative Wright Representative Vines Representative Shepard Representative Deffenbaugh Representative Hammer Representative Eubanks Representative Branscom Representative Ratliff Representative Gillum Representative Walker Representative Wilkins Yes
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Speaker 192 2:34:36
12 votes of the bill passes
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Representative Darrin Williams Unverified 2:34:53
members we're going to take a 10-minute break have lunch and then come back and hear House Bill 1869
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Agenda

Call to Order

0:00

HB1817

0:20

HB1021

10:28

HB1352

15:52

HB1410

1:29:18

Documents

No documents posted.

Speakers

Speaker 1
11 segments
Representative Jon Woods Unverified
5 segments
Speaker 5
7 segments
Representative John W. Walker Unverified
73 segments
Speaker 14
7 segments
Representative Jeremy Gillam Unverified
9 segments
Speaker 22
4 segments
Speaker 28
2 segments
Speaker 30
1 segment
Speaker 31
1 segment
Speaker 38
9 segments
Chair Unverified
1 segment
Representative Darrin Williams Unverified
94 segments
Speaker 7
2 segments
Speaker 24
1 segment
Speaker 49
2 segments
Speaker 59
2 segments
Representative Linda S. Tyler Unverified
12 segments
Speaker 66
21 segments
Speaker 67
45 segments
Speaker 92
1 segment
Representative Nate Steel Unverified
20 segments
Speaker 76
7 segments
Speaker 112
5 segments
Speaker 122
1 segment
Speaker 128
3 segments
Speaker 135
2 segments
Speaker 136
2 segments
Donna Meriwether Unverified
5 segments
Representative Kim Hammer Unverified
11 segments
Speaker 152
6 segments
Speaker 168
1 segment
Speaker 169
14 segments
Speaker 170
5 segments
Representative Matthew Shepherd Unverified
21 segments
Speaker 174
2 segments
Speaker 178
1 segment
Speaker 179
1 segment
Darren Kuhn Unverified
14 segments
Trey Kitchens Unverified
24 segments
Speaker 203
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1 segment
Speaker 256
10 segments
Jane Ann Unverified
9 segments
Speaker 259
2 segments
Speaker 265
31 segments
Speaker 148
2 segments
Speaker 271
5 segments
Speaker 273
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Speaker 270
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Speaker 288
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Speaker 255
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Speaker 305
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Speaker 307
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Speaker 312
31 segments
Speaker 313
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Speaker 320
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