Judiciary Committee- House

Flowers on house bill ten thirteen. S. S. not to run that so it will be run on three twenty eight Tuesday the twenty eighth when we come back. C. representative brown or you're in the room. Represented by your next up. Members let's turn to House Bill fourteen forty three House Bill fourteen forty three. Represent fight you. State your name and you may begin. Madam chair may I bring the witnesses to the table yes. I'm Charlene Fite state representative district twenty four. If you're witnesses will identify themselves represent a fight then you're recognized to begin and present your bill. Charles thinking my under Conway city attorney. John archer founder and president for mental health. Fite you're recognized thank you madam chair committee this bill was brought to me by women someone an organization that works with survivors of domestic violence I am honored to be on their board they do wonderful work we do wonderful work this is an act to amend the law concerning rights of victims of crime to provide that victims of misdemeanor crimes have rights and for other purposes what we are seeking to do is to give victims of class A. misdemeanors that's the most serious class of misdemeanor the same rights and privileges as afforded to victims of felonies and I'm going to ask my witness to speak. Yes so in particular this would change the definition and it's a small change but I believe it'll have a big impact on the victims of crime the ticket or domestic battery it section this would be sixty nine eleven a one section nine defines violent crime currently only limited felonies or a victim is injured physically injured this change would would extend the actual protections of the victim rights act to all that terms of domestic violence. Two one. Yes I thank you all for being here today and this amendment would enable over thirty thousand are approximately three thousand survivors of domestic violence and actually do reach out for help to get the services and that knowledge through law enforcement and the courts that other survivors do so a lot of the times when you might ask why doesn't she leave she's gonna get a lot of that information if this amendment is passed. Members are there any questions. Seeing the questions. We have no one else who signed up to speak for against the bill represent the fight you're recognized to close for your bill. This will enable the victims to To now with the defendant is confined to have information about released by Lois skate and have their own information protected and that I believe that this will help the victims of domestic violence and state of Arkansas as well as other serious crimes members represent a fight is closer bill with the wishes of the committee I have a motion to do pass is there any discussion on the motion. Seeing no discussion all in favor please say aye any opposed say no the ayes have it congratulations you have passed your bill thanks thank you. Thank you madam chair thank you committee members represent a fight since I have you at the end of the table are you prepared to read house bill fifteen sixty one at this time I am madam chair may I bring my witness to the table yes members if you'll turn to House Bill fifteen sixty one. Brahmic mill and with me George contracting a project engineer. I represent thank you recognized thank you madam chair this bill was brought to me by a constituent her father was killed in a horrible accident he was merely doing his job in a construction zone and the Little Rock area off of highway six thirty he was struck by a distracted driver and he was tragically killed. She asked me over a year ago if there was something that we could do to strengthen our laws similar to what we have in the state of Texas and Oklahoma and the state of Oklahoma. And so I started looking at this as admitted this as an interim study proposal and it went to the transportation committee where it was so well received and representative Gazaway joined with me he also had a constituent who had separate the same tragic events so what we are seeking to do here is to say that if you hit someone in a work zone on highway work zone it will be an injure that person it will be a class A. misdemeanor if you hit someone and kill them and highway workers it will be a Class C. felony and this would be in addition to other penalties that to. A law enforcement and the courts might impose on that person and I'm going to ask my witness to speak. Thank you for having me and very much thank you represent fight for president this bill this is very passion of mine. This is something that we talk about for years and are not on my company but is the industry with the agency to increase the safety needs work zones year after year we're having more accidents incidents and fatalities in these work zones and a lot of these are distracted driving We had one of our members last year who is doing the six thirty or the I. thirty overlays it was their highest increase of work accidents they've ever had the company and that was last year. we have got to change the behaviors of these drivers in these work zones we're going to see more increase and people get killed and hurt Our workers is they want to go to work. Do their job and call home their families and not have to live in fear of. Distracted drivers impaired drivers taking their lives of the people with them it's it's incredibly sad to hear the stories of these families are impacted by this and it's really unnecessary. I really appreciate it You all discussing this and consider this bill. Members you've heard the testimony is there any questions of these witnesses. Seeing the questions we have no one else who is signed up to speak for against the bill represent the fight you're recognized to close for your bill thank you madam chair those of you who have driven and taxes have probably seen the signs as you're entering a work is that say don't hit our workers don't pay ten thousand dollars and every time I see that it has an impact on me I would slow down to very slow crawl and an extremely careful I I would be careful anyway but with seeing that sign does have an impact on me and I hope that increasing these fines will make people think twice three times and then not speed or look away as they're going through a work zone thank you. Members represent the fight is close for her bill what are the wishes of the committee. We have a motion to do pass through a discussion on the motion. All in favor of the motion please say aye. Any opposed say no the ayes have it congratulations you have passed your bill thank you madam chair thank you committee members. Members without objection was trying to House Bill fifteen thirty six the sponsors indicated that she needs to get over to run some other bills so he'll turn to House Bill fifteen thirty six representative bought you're recognized to identify yourself and present your bill thank you madam chair may I have not witness yes. Thank you Dan bye District eighty seven today I bring into your house bill fifteen thirty six this just gives another heightened penalty if all the circumstances under maybe driving too fast for a recklessly Bob intoxicated and it was brought to me by one of my constituents due to her mother's. Accident if it's okay with the chair I'll let her explain what happened yes ma'am if you identify yourself for the record then you may make your statement Michelle what okay you're recognized good morning thank you for having me here today so in September of twenty twenty one it was any other day that evening my mom came over to visit we had dinner and then we left she left we left about the same time we had to go to the grocery store in about fifteen minutes later we were on our way back home and we drove up on an accident you guess it was my mom and she had been hit by a drunk driver she was pulling out of a local establishment just from highways seventy one and she pulled on to the road according to the eyewitnesses she had just pulled to the outside lane and Hey being that witness said that she had planned time there's no way he would have Peter there was another gentleman that flew up behind him somewhere into the inside lane going at extremely high rate of speed swerved back into the outside lane between the eyewitness and my mom in the and hit the side of the back corner of her vehicle I'm spending the vehicle and flipping his truck landing upside down on a local drive in restaurant in a car on here. And. And my mom died on the scene this happened in September the guy was finally arrested in December and he was charged With negligent homicide negligent homicide can actually be considered a misdemeanor charge with only a year jail time in twenty five hundred dollar fine it can also be considered a class B. felony with up to twenty years or a fifteen thousand dollar fine but what we were discussing Adam is is this some is actually still awaiting his trial right now we haven't been told all the details because of that what we have been told us he was over twice the legal limit he possibly they haven't told us for sure but he possibly had drugs in his system when they searched his vehicle he had Little brown bottles and baggies that had a white residue so they think he was possibly In the process of distributing drugs as well and then he was gone well over the double the legal limit at the time of the crash the speed limit where they were at was forty miles an hour and he was going over eighty five is what they've told us so for. And so in in all of this I had spoke with representative off because In my opinion that's a little more than negligent homicide and I had spoke with her about maybe having an option where prosecutors could charge a director over with murder instead of just negligent homicide and second degree murder gives them the option of a thirty year sentence rather than a twenty year sentence And you know I'm not completely against negligent homicide you know there's people that might drive stupid like fatigue didn't hadn't been asleep for twenty four hours you know they're not breaking the law in any other way but they still harm someone kill someone and I can see that being negligent but in this situation where you're intoxicated you're doing all these other things breaking the law in the end I am. You kill someone and according to Arkansas Code five ten one of three a person commits murder in the second degree if you knowingly cause the death of another person under circumstances minute manifesting extreme indifference to the value of human life or what the purpose of causing very serious physical injury to another person. I don't necessarily think this gentleman got in his truck saying that he was gonna come kill someone but I think you knew that that was a possibility he could definitely cause serious injury he was in all the different things he was doing that if not we think he was showing indifference to human life and he had also previously been charged with DWI was he had previously been charged with negligent homicide but got it lowered to a lesser charge in so again in extreme cases like this I just think it would be great if prosecutors at least have the option of a higher charge such as murder in the second degree. Thank you. We just received a sentencing report. It's coming over so we'll need to. Review that here in a moment do you have any other witnesses or testimony no ma'am. Represent Collins you're recognized for a question well my question is actually get a sentencing impacts after we take a look at. Are there any other questions right now representive cloudy you're recognized for a question thank you madam chair I don't know if you all know the answer to this question but I am it is is this. Making this change is this the way then the other states handle that. I did get star status I'm sorry if I think I usually do my due diligence on that but I did not I'm sorry representative Clowney. President Gazaway you're recognized for a question the thank you madam chair of. This doesn't pertain exactly to the language of the bill but I'm just curious as to what the status of the case is it sounds like the person was charged with negligent homicide you said were they charged with the misdemeanor or felony version. He was actually charged with the felony version again we are steel he's still awaiting trial we actually meet with the prosecutor tomorrow about it so we're not for sure exactly what's going to happen but he was charged with the felony. You're recognized Sir certainly you have my deepest sympathy there are. In a prosecutor or not prosecute cases very similar to what you describe I know that so. Heart wrenching situation for you to be and I'm so sorry He's so if he's charged with a felony version he is facing up to twenty years in prison currently is that right yes. Thank you. Members any other questions. That represented thought will have to come back to your bill so he needed to run something else I'll be fine and then you can come back and and after we see the sentencing report there may be some additional questions at that point but we'll we'll come back to you in a little while thank you madam chair thank you Committee thank you. The representative park house bill fourteen ninety six members of you'll turn the house bill fourteen ninety six. Madam chair at this time okay I have a witness come super with me as well yes. I believe their cement amendments. Henderson is a passing out of sentencing report on fourteen ninety six as well as the amendments what you have an opportunity to look at the amendments. Then we'll get started again. All right members have you had an opportunity to look at the amendments and the sentencing report. All right representative park you're recognized to present your amendments. Thank you madam chair representive RJ hog District eighty one this amendment that is it before you right now committee is some changes that I work with many committed committee members to after all last time at this table to come up with one thing we added was representing the college as a co sponsor to the bill and then I work with represent Gazaway to get the language in line after the last time we spoke allowed the language was not conducive with the law and so he helped me work with defining what serious physical injury was compared to physical injury and then we on the bottom as far as the sentencing is concerned we changed it from us for as a felony to stay with current law and then on the misdemeanor side number three that was where a lot of members were confused about the on a hot dog or just threatening an official what we did on that one we made sure there was a minimum fine of twenty five hundred dollars and it would be a Class C. misdemeanor so with that I'd take any questions members are there any questions on the amendment. Seeing the questions is there a motion I have a motion to adopt the amendment any discussion on the motion all in favor please say aye any opposed the amendments have been adopted now you're recognized to present your bill as amended. Thank you madam chair of a committee so the this bill H. B. fourteen ninety six is a law to protect athletic contest officials in the last time I was here we really got the weeds about officials tried and so I went through the the the bill even more and abroad lance Taylor from the Arkansas activities association with me to help answer any questions but one thing this bill does is not you know it's not just for the high school officials this bill covers little league officials this bill covers high school and collegiate officials in the state of Arkansas I know last time we spoke there was concern some concern about just pigeonhole yourself with just a high school officials it was already in the bill to cover all officials no matter whether the Little League high school or at the college level once again this bill is to protect our officials we have a shortage in the state of Arkansas and because many don't feel protected when on the playing surface whether the football basketball baseball volleyball and they came to us this was brought to us by officials in the State of Arkansas that said Hey look we need something that that gives us a little protection while we're out there we can't get young guys become officiate right now the average age for an official fifty years old and so with that I've got lance Taylor here to just a little bit more scope on this bill Mr Taylor if you'll state your name then you're recognized. Thank you madam chair of lance Taylor executive director of the Arkansas activities association. You're recognized to present your testament thank you ma'am of twenty two states have officiating state laws right now and your six with little with of legislation in Arkansas is one of those to help protect officials this is just out of state issued this is a nation issue and all states are trying to protect her officials interstate from assault us especially serious assault and I know you've probably seen the the incidences at the Texas state high school football championships Mississippi had a softball official seriously assaulted so what this does just give it protects our officials. Thank you for staying Crawford you're recognized for a question thank you madam chair the only question is is whether be signage in the GM's somewhere on the fields to let people know of this new. Law. What we can do that with the our member schools ma'am that seven through twelfth grade I don't I don't know how that would work for that to collegiate or the the P. we if that age but we could certainly do that what once is that there's nothing in the language of the bill that says that they need to be signed a job but one thing that we could do is I know the triple a as well as myself and others we could send out notices Leding Miller with the laws been change once it goes to the house and Senate to override like universities in the state let a deferment disparities in the state no with the laws and change in they they would be up to them at that point put this on. As a follow up thank you I'm wondering and I don't know that you have the answer to this. could it be. Is there a way to make it available in parents packets when they sign their kids up I just I'm thinking that my dad you guys are wondering what I'm going this way my dad had a very bad temper and he wound up on the ball court or somewhere a few times so. At that's where I'm coming and I have I really think it's someone who has a trigger temper if they saw sign if they knew the rules I really think it would calm them before they ever get to an event at and I think that's an outstanding question and I know that for like Little League well those are private entities so I don't know if we can essentially mandated blood I would be willing to make that you know the lead that charge to to send it out to organization I'm involved with a lot of travel baseball organizations across the state softball as well I would be willing to start an email chain to somebody's private organizations that do that and I can't speak for the triple a but I would imagine they would they would inform the coaches and administrators as well this family could. Representative Richardson you're recognized for a question. Thank you madam chair so along those lines of. Do you guys know as any side it's been put in any other states that have passed legislation like this that you can recall not that I'm aware of and then in follow up in because the triple a operates with the membership you would have no jurisdiction to add those types of life or signage anywhere else is that correct that is correct okay thank you. Members any other questions the representive the field you're recognized thank you madam chair with this supply but say there's a high school student that sixteen seventeen years old he's in a football game and he gets hot tempered and he goes over to the official those under the ground is that sixteen year old going to be. Included in these charges if something like that were to occur the student's gonna be liable as well yes Sir yeah and we've identified in the law basically the items number one two and three the different types of physical or serious physical injury I am also before this committee I didn't know there was much of a difference until representative Gazaway he walked me through the definitions of that and so that's what we laid it out like it is and the punishment as well sections or if there is one two and three on the amendment that we we passed a moment ago and so it just depends on where they would fall in that spectrum of what they did to the official but yes to answer questions they would be they would fall this is for anybody that wants to do anything against a an official. Members any other questions. Seeing no further questions we do have an individually signed up to speak for the Bill Clinton Lancaster you'll come to the end of the table state your name will be recognized make your statement. Thank you madam chair my name's Clint Lancaster I am currently an attorney but many many moons ago I was a police officer at the university of central Arkansas and I had the responsibility of working on the football field in keeping the unhappy fans from hurting the officials and that it is a. It is a real issue especially today and our work society where people believe that if you don't like the outcome you can just take matters into your own hands now I have squarely placed my hopes and aspirations on my eight year old daughter soccer team and not something like the Arkansas Razorbacks but if. If I was to have someone come out in those in those fields an assault and official which we had one year it upward soccer and remark fields so I think that everybody in the to what representive called first concern was about not knowing the law everyone is presumed to know the laws once they have been published in codified ignorance of the law has never been any excuse so I think that this bill would be an enhancement that would help protect athletic officials in the same way that we have enhancements that protect police officers code enforcement officers animal control officers EMS firefighters and other persons if the ID were two deck R. J. Haak overrepresented talking giving a black guy that's just Class say misdemeanor battery but if I go over that state trooper over there and I date him and I and we give him the same black guy it's a felony because there's an enhancement and I think that enhancement will help keep our a athletic official safe and secure from people who don't have good intentions are behaviors. Thank you appreciate your testimony today thank god I see no question so thank you very much thank you we have no one else who signed up to speak for against the bill representative hawk you're recognized close for your bill thank you madam chairman once again I I I just want to stress that this was not just brought up by some idea the triple a and I that we dreamed up and thought this be a good bill filed this is actually coming from high school officials and local officials in our state that are that are begging for this law that they have been asking for this for many many years and so with that I would appreciate a good vote as amended. Members represent pockets because first bill with the wishes of the committee wait a motion to do pass as amended. Any discussion on the motion representative claiming you're recognized thank you madam chair I'm vote no on this I just wanna explain why we have heard me tried. Repeatedly over the course of the last few sessions and I presented that hawking no you want a part of those conversations that we try to enhance penalties for crimes against members of lots of groups groups that are historically discriminated against for instance and have been told to do so would be a violation of equal protection which I don't agree with but I guess if we are looking at expanding enhanced protections to certain classes of people while I certainly have sympathy for athletic officials who are put in this position and by all means would not ever want to do anything that would increase the chance that they would be the victims of violence I do think that we as a body need to be very very careful about who we are choosing to extend special protections to and who were not and so while I'm well of course my heart goes out to any athletic official other families impacted by this I will be at no on this bill thanks. Members any others discussion representative Gazaway you're recognized for discussion thank you madam chair members as you may know I was initially oppose this bill. The way that it was written. I appreciate representative hall coming back and making some amendments to it which I think make it a much better bill basically that the first section of the bill now aligns with the first degree battery statute that we have the second section of the bill aligns with the second degree battery statute of that we already have on on the books the only difference is is for the this of course of conduct for this statute is to C. felony in the second degree battery statute this course of conduct to be a D. felony so that we actually do have an enhancement here and then the rest of the proposed statute here would be misdemeanors with the enhancement of if you caused physical injury to a referee or athletic contest official during the course of the. Of the preceding they would be subject to a minimum twenty five hundred dollar fine which is a pretty severe penalty to impose on some someone so and I and I agree with a representative Crawford I think some signage letting people know ahead of time that if you engage in this kind of conduct that there are enhanced punishment support would hopefully keep our officials say so with that I think it's much better built again once again Preciado representative part of working with this committee to make it what I think is much better bill so I am supported and encourage everyone else to be supported thank you. Members any other discussion on the motion. We have a motion to do pass as amended on the floor all in all all. Just went blank. Thank you all those in favor please say aye. The opposed say no the ayes have it congratulations you've passed your bill thank you Mr chairman thank committee. Senator Irvin you're recognized come to the in the table members if you'll turn your attention to. Senate bill two eighty two Senate bill two eighty two. Senator Ervin you're recognized to state your name and you then you may present your bill. Thank you so much madam chair members of the committee Senator Missy Irvin district twenty four and I have some folks with me today as well and would you like for them to say their name now yes I'll be fine thank you. Meredith more. And I'm Gretchen Smeltzer. You're recognized thank you and ten members of the committee and this this legislation that you have before you has been a lot of work from some great attorneys that I worked with as well as advocates for victims of human trafficking and it's a very important bill and because it really gets to the heart of the matter which is this industry is a money making industry. It is number three behind illegal drugs number two is illegal weapons and then the third is human trafficking it is about making money off of the suffering the abuse the torture of the kidnapping and the rape of of individuals four sacks and which is probably one of the most appoint law crimes I think that we deal with so what this bill does as a result of some litigation that occurred in the State of Arkansas where a victim was held in a hotel and. Just repeatedly Brutalized and and trafficked what this what this bill does is it mirrors the standard that is used in federal anti trafficking laws Arkansas than would be consistent with existing standards that are enforced in federal court cases so no substantive changes for businesses here that already are under this standard and it would allow litigants to choose to file suit under the Arkansas law without having to meet the the criminal law standard in the event that a hotel or motel is found guilty under the current criminal standard arguably Act prosecutor could consider holding the motel and hotel liveleak a liable criminally under the current criminal standard Arkansas our Kansans who are successfully sued under this act will face exclusion from insurance coverage because they would not have coverage for what may be excluded from the policy as intentional misconduct so defining intentional negligence is the goal here and which actually does help protect hotels and motels from insurance policy coverage exclusions based on intentional conduct and motels and hotels are already insuring against recess under the general negligence standards of new or should have known so this brings sex trafficking under that same standard and by clearly defining intentional negligence meaning that if you knew that this was happening and you did nothing then you should be held liable and that you should pay for those victims suffering and you can't just turn a blind eye if you're an establishment that is profiting off of human trafficking you no longer can just turn a blind eye and ignore it you have to be a pro active partner in helping us defeat human trafficking and that is what this act does or this bill does I'm a litigant must also the second part of this bill so that's the first part the second part makes it clear that victims of crimes are not response. VOL for being victimized that's very important that we don't want to hold victims of human trafficking liable and victimize them even more and so under this this bill a litigant must first prove that the person bringing the suit is a sex trafficking victims to recover hallmark in sex trafficking case is that the victim has been subjected to fraud force and coercion a person cannot volunteer to be a victim under our definition of a sex trafficking victim that's very important if a person is subjected to fraud force or coercion and is manipulated to sex trafficking trade to hold them at fault allows those prospering from his or her victimization to shift the blame off of them and on to the victim that's not right this bill changes the. Victims of crime are not responsible for being victimized by a criminal. And and so then finally hotels and motels will still be able to compare fought with the trafficker so with that I want to turn it over to my witnesses if that would be okay so that they can add to this testimony you're recognized. Thank you madam chair and committee members like I said my name's Meredith more I feel like I need to give you a little bit of my qualifications because I know at least one individual that will be getting up here on the opposition has been practicing law for a really long time and so I have been a lawyer for ten years in Arkansas hi and and an honorary commander for the Little Rock Air Force I'm president of the Pulaski County bar foundation on the board of trustees for or the Arkansas Bar Association I have been in as a prosecutor and now is a civil lawyer and representing victims of sex crimes for my entire career and I along with some great lawyers filed the first lawsuit under this statute back in two thousand and nineteen and since that time we filed probably around ten more of those we also this year took one of those cases all the way to Jerry and and the jury returned a verdict in favor of our client and unfortunately because of how this statute is currently written which does not track with federal law and the insurance company that represents the hotel is not offering to and pay the full judgment in that case so and my client still has not seen a dime of that jury verdict yet and. Senator Irvin did a really good job I think of articulating it and like she talked about in that case my client was held against her will at a hotel in Little Rock and she was found almost dead in the parking lot that motel had been under the city's criminal abatement list and the police there is evidence in the trial that police responded there about eight times a week for a felony crimes and the hotel said the whole time during the case in that trial that they didn't have a crime problem in the everything that happened to her was her fault we have to prove under this statute that she's a true victim of force fraud and coercion so the fact that you know right now is the statute stands we have to prove that she's a victim and then she can be victimized for being a victim under the statute is a little bit frustrating I know that you all received a letter from Arkansas association of defense counsel the author of that letter is the defense attorney on a current case that we have in that case my client is was fifteen years old when she was trafficked for years at a Springdale motel and she was branded with a tattoo across her back she was trafficked and up to ten times per day at that motel and in that case they are blaming her tibia and partially responsible for what happened to her I received an answer last week to another lawsuit that I filed and here in Little Rock the defense counsel is from the same law firm and I'm going to read you that paragraph because right now this is how that statute plays out pleading affirmatively defendant state state if in truth and in fact plaintiff has been damaged as alleged such damages were proximately caused by acts and omissions on the part of plaintiff constituting comparative fault. The facts in this case my client was six years old. When she was trafficked at a local motel she was raped over thirty times she at contracted for STDs including HIV that she will live with for the rest of her life so the fact that a victim of trafficking can be blamed and is a huge issue with the statute and. Trying to think if there's anything else specifically in that letter that I want to address you know it it does track with the the federal law which has been around now for twenty years it's very well established in there been lots of cases filed under that statute so we're not recreating anything here this is not a new law it's just tracking with the federal law and and I know the opposition will state say that this you know this bill creates you know some sort of judicial restrictions for them I don't know how that would considering the fact that their clients are the motels who would then and get the benefit of insurance coverage but I think the only to service and that opposing this bill does is to the victims and I'm happy to answer any questions and I differ also to another fine witness we have. Members at this point are there any questions. Representable you're recognized for a question. Thank you madam chair I remember reading an article about this happening it at the hotel what was the name of that hotel and what is the current status of the hotel which one. The first one. At the very first one we filed by the one that went to the jury two different ones the one. With the young lady was found in the parking lot that went to a jury and and the jury returned a verdict in favor of of our client. Follows you're recognized what was the hotel America's best value inn on Shackleford and I'm it's been the name has been changed I noticed recently. What is it under new ownership now as the hotel still there is it been I see the same manager there but I can't answer those questions I don't know for sure okay thank you. Members any other questions at this point. Seeing no further questions Smeltzer you're recognized. Hello thank you for the opportunity to be here today my name is Gretchen Smeltzer and executive and co founder director of into the light and we serve hundreds of victims of child trafficking here in Arkansas we serve fifteen counties and I'm just here in support of this bill because I would love for victims that are true victims you know through force fraud and coercion that is proven right as they are have given the opportunity to find file a civil suit and actually get the potential for some victim compensation I'm just in favor of this that they are not found guilty not seen as a criminal or liable for their what was done to them and you know as my team of advocates we have seven advocates that full time serve you know have a caseload of twenty kids that they're serving twenty four seven. Just the victimization that we see these children and is horrific and they have to live with this the rest of our lives many have STDs the complex trauma that causes you know it's something they have to work through the rest of their lives and you know if there they they should be given the opportunity to be seen as a victim and treated as a victim. Member center represent Richardson you're recognized for a question just. Of these hotels are have you noticed them to be chain hotels are independently owned or is there any system to the types of hotels of the to happen and I don't know if you can answer that I'm not I'm just curious sure it's both I mean we filed the cases that we filed our all across the state of Arkansas so it's not just Little Rock but some of them are franchises and some of them are or independent land. Represent guess what you're recognized for a question. Thank you madam chair so I just want to. Touch on this point make sure that I understand students understand it correctly so in the lawsuit that you filed it involved a six year old victim and the response from the defense was is that it may have been her fault that she she bore some responsibility in that situation is that correct. Less and we if if you're a lawyer you know that answers that get filed two complaints have a lot of you know boiler plate language in them they're covering their bases but yes this she is now nine actually she's ten years old and there is language in this and answer that she should be held partially responsible for what happened to her and that it's not the hotel's responsibility. I'm sorry represent college you're recognized for a question. Thank you madam chair and there's some really before a fix up you've described and that's certainly one of them but I do just want to drill that I want to make sure that that I am understanding what exactly we're doing here this is just for civil lawsuits this is a situation where. The hotel or motel or whatever it is has been found liable and this is the amount of damages that they will get out of the case and we're talking about whether or not the plaintiff will get all of the damages or whether it will be reduced by the amount they're found to be at fault is that right. Not quite I'll be out and so the the bill does two things one and that it takes the language of the entity or the person being sued having to know that the trafficking venture was going on basically being honest an active participant to knew or should have known which is the same standard that's in the federal civil. Okay and then that the comparative fault and. Aspect I think you're focusing on and would just be a. The same amount of evidence you know depending on what the judge says can come in would be able to come in if it's relevant to anything about you know this child or any victims pass could still come in but once she is proven to be a true victim of force fraud and coercion that you can't then go and say what happened to her or the negligence on the part of the hotel their involvement is somehow her fault. Does that make sense it does make sense follow up with you're recognized it does but I think that I don't know I guess I'm still not seeing how what I said at the beginning is not true I mean we are talking about we're we're talking about not reducing the amount that someone can get in a lawsuit by the amount that they're at fault that's right I'm sorry I and I think I misunderstood you because I think you said you know if first it goes all the way through and then you know the damages are assessed this would be this would make it where you want she's found here she is found to be a victim of sex trafficking you can't allocate fault I think we're on the same answer one more problem you're recognized so then are we saying that the that this plaintiff can recover for something that they need damages that this motel didn't cost them I I mean that's what I'm trying to get at you know if we're giving a hundred percent of the of the amount to the plaintiff but it wasn't ninety percent of their fault is are we. Well and that's something that they're not supposed to get no and so there are punitive damages out there which is meant to punish that something you know that doesn't always specifically have to do with the victim that has more to do with the negligence on the part of se the hotel and so there are other forms of damages that could be assessed that wouldn't specifically be about the victims damages like punitive damages but otherwise and to answer your question no I don't think this does anything to give a victim what is would be unfair. Represent Gazaway you're recognized for a question so the way I understand that is if the person has been found to be a victim of human trafficking then there's no need really for any further analysis as to what they would be entitled to in terms of compensation is that right yes I would say that that's fair to say. Members any other questions represent Duffield recognized for a question thank you madam chair so how would a hotel owner or the hotel establishment how would you prove that they were negligent and knew that committees were going on. How long do you have in these cases. We use experts and just like in any civil case we use and security experts it's the same as and any negligent security cases so you know if you go to a hotel in little rock and you get shot in the parking lot and that hotel knew they had a huge crime problem that police were there eight times a week for things like guns felony drugs drug trafficking sex trafficking there are notice they've got a crime problem and that somebody could get hurt on the premises so and we have to prove it the exact same way that we would and in that scenario and does that help. Members any other questions. Six seeing no further questions we do have someone who signed up to speak against the bill David Donovan Mr Donovan if you'll go to the in the table state your name and you'll be recognized to make your statement. I think we thank you senator. Madam chair members of the committee thank you for hearing me my name's David Donovan I'm a lawyer in Little Rock I practice at the firm of what's Donovan Tilly and Carson. And I'm here on behalf of the Arkansas association of defense counsel. The association is made up of members like me trial lawyers whose principal practice is the defense of civil lawsuits. The association's position my position after forty years of trial practice in this state is that this is bad for the system of civil justice and will have unintended consequences. I'd like to speak primarily to the provision in the bill which does not permit the civil cause of action for victims of human trafficking does not permit consideration of the plaintiff's fault. Just a little bit of history of course. Before nineteen forty seven any lawsuit in Arkansas civil lawsuit the contributory negligence of the plaintiff was considered and any negligence of the plaintiff mark recovery. That was changed by the legislature in nineteen forty seven to a system of comparative fault. Where the fault of the defendant and the plaintiff are compared and if the plaintiff's fault exceeds fifty percent the recovery is barred. If it is less than fifty percent then there recovery is reduced by their percentage of negligence. These are cases. All civil cases where someone is suing for damages where the jury makes these decisions. What this bill attempts to do is have the legislature preemptively decide that in all cases the fault of a person suing under this statute can never be considered. Reality. Any defense lawyer. If I hope to be successful as a defense lawyer is not going to go to trial and argue the fault of the six year old plaintiff who's been brutally route right and victimized. They will be a defense lawyer very low if that is their trial strategy. A lawyer defending a case where the plaintiff suing under this statute has been a lifelong prostitute sometimes under the control of others sometimes as a consensual sex worker and where the facts established in this case that she was at the motel of her own accord and without control by someone else that's an entirely different matter. Juries and I cannot emphasize this enough this is the position of the ATC that our system of civil jury trials which is guaranteed by the seventh amendment in federal cases. Is the greatest form of dispute resolution known to modern man. Juries make these tough decisions all the time. A father of three children killed in an automobile accident and the defense contends that it was his fault. And that his comparative fault should be considered. Those are tough decisions on the juries have to make them they have to decide based on the evidence whether this person was at fault and whether his fault should bar recovery or reduces recovery. I guarantee you that if this legislation is passed you will have person suing under this statute who then cannot have their own conduct or fall considered. And if that happens you will have a blank check given to plaintiffs suing Arkansas business. The only thing that the defendant's request is a level playing field. One thing that has to be considered in these cases is that. The plaintiffs suing under this statute are also going to be suing under common law negligence theories. Least that's how these cases are presented currently and under common law negligence of course compared to fault is considered. If you eliminate. The comparative fault under the Civil cause of action for human trafficking victims did you are going to forever eliminate. Consideration of a plaintiff's fault when they are truly at fault or their own conduct bears consideration before a jury all right urge this committee to let the juries decide these cases they are capable intelligent people they are the conscience of our community and they can decide if a victim is truly one who has been coerced. By fraud or manipulation or threats of violence has been taken into this life. And the hotel or motel should be held civilly liable. But to preemptively say that the jury cannot consider the conduct of the plaintiff who is presenting it. Flies in the face of our civil justice system and our system of jury trial one other point I would make in this is in the letter that height drafted the A. B. C. letter is that this is sure to raise constitutional questions you will be giving the defendants in these cases another tool in their litigation toolbox because depriving a defendant of a defense which is known to every other defendant at in our system of civil justice and jury trial to deprive the defense deprives them of due process of law your implicating the right to a jury trial your implicating due process rights. This will be litigated of course if this bill is passed but as it stands currently you will be giving the defendant's another defense. At some point if this bill is passed I suspect that our appellate courts will have the chance to weigh in on that. Madam chair I thank you for of your. Listening to me all members of the committee for listening to me this bill is well intentioned nothing the ADC says should detract from the very real situation and that we have in this state and in this country of victims of human trafficking it is a real problem and those who are victimized should have the right to sue and sue people and sue hotels and motels and recover if they can establish that fault. all right commend Senator Irvin for focusing on this I think it is a well intentioned bill but it is bad for our civil system of justice it will have unintended consequences and I urge its rejection Mr Donovan will you entertain questions absolute representative Hudson you're recognized for a question. Thank you madam chair Mister Donovan what do you make of the process by which this bill envisions a trafficking victim establishing the fact that they are entitled to the to the protections under this bill and we had a little bit of testimony outlining what what that the proponents of the bill believe that that process looks like and I wondered after hearing that what your thoughts are how that will functionally happened then in the bill courtroom setting sure I think the jury instruction will be do you find that plaintiff was a victim of human trafficking in the instructional explained what she the victim of fraud coercion and threats the jury will have to make that determination if there is evidence in the case that the plaintiff also. Of may have voluntarily entered into a a transaction with someone there could be both she could be a victim of human trafficking by fraud coercion or threats and may also have been in that same motel on our own accord on various occasions acting as a prostitute on her own. In those cases the jury's going to have to consider both they could consider and would be instructed whether she was a victim and the jury would also be instructed that they can determine whether she was at fault by our own conduct an assessment appropriate percentage in the case that Meredith was talking about she and I were on the opposite sides of that case your father was the trial judge so the the jury got it right there was evidence that the up. Victim once the fraud in court she was also there is evidence that she was a consensual sex worker for most of her life the jury determined that she should have some fault and of for up apportioned some falter her the majority of faulty a portion to the motel so that was a a great example of our civil jury system working as it should. The representative Clowney you're recognized for a question the representative Collins you're recognized for a question. Thank you madam chair so first that cat two questions one are there any other instances in Arkansas law where the comparative fault is discarded or or waived and secondly can you address what they're talking about with the federal system how you know they apparently do it this way federally and everything's fine so this is the only example I'm aware of for a departure from the. Rule of comparative fault as established by statute this would be the one and only one that I'm aware of there are provisions in the law for immune entities against which you cannot assess a percentage of fault but that's and apportionment issue and not a compared to fall between plaintiff and defendant. The federal law is the trafficking victims protection reauthorization act and I'll have to tell you my understanding of that is different from what Senator when it and uh Meredith at present. That statute requires knowing. that the defendant knowingly benefited financially from participation in a human trafficking venture. I do not believe it has the should have known negligence standard that this statute goes to I could be wrong on that And I wasn't prepared to. Drill down into the specifics of the T. V. P. R. A. here today so I don't think that is correct. The The TV P. R. A. is a federal statute it's not Arkansas law and so there is no comparative law comparative fault scheme under the federal statute I think that is correct just because federal law does not. Have. Common law for comparative fault negligence as the Arkansas system does and most of all of the other states would have the same law. Represent Gazaway you're recognized for a question. Thank you madam chair so. Just to up follow up on the issue of comparative fault I guess a couple things one. To be clear my understanding is that. There has to be a before compared the fault is not an issue here there has to be a preliminary finding that the person the plaintiff if you will is a victim of human trafficking and that requires a showing or a finding of coercion Is that correct that's correct force force fraud or coercion. Language so the plaintiff is going to have to prove that to a jury. For comparative fault is eliminated is that right. That's the way it here's the way I understand this the proposed revision to the statute. That if the plaintiff is a victim of force fraud and coercion then by necessity. She you cannot consider his or her fault. Right. Which is in essence defining them as a victim of human trafficking because they were. Product of force fraud or coercion that's good that's correct that has to be proven by the plant the plaintiff must prove that they were a victim of human trafficking and that the defendant knowingly currently knowingly participated in. the venture. You're recognized for a follow up thank you madam chair in the so the second question is that you know this idea that this is going to create a lot of appellate issues by the elimination of comparative fault it's essentially unprecedented but all of this falls within the province of the legislature does it not I mean the legislature has eliminated joint several liability for instance sure of a comparative fault being very similar to that if if the legislature. So chooses to end this in a very specific instance where there's been a finding that a person had is a victim of human trafficking by virtue of being coerced or forced or some fraud involved that's that's well within our province to do that just as joint several liability another principles of what legal liability or are decided by just legislatures that I agree with that or representative Gazaway it is this is substantive law it's not procedural I don't think it's a a separation of powers challenge at all the challenge would be substantive due process of law by depriving a civil defendant of a substantive right to allow a jury to consider all the facts and make a factual determination that is the constitutional challenge and it is substantive due process I agree the legislature certainly has the right to change substantive law and it's not a procedural issue. President Clinton you're recognized for a question thank you madam chair I'm so I appreciate your testimony in kind of the abstract issues but I really want to kind of. Narrow it down into the specific situation that you are are aiming to avoid I'm a bit worried about with passage of this bill and I guess what I'm hearing from you is that if somebody has been previously a victim of sex trafficking stand their childhood and then they become What you would call a. At a sex worker sort of by can center or because you know they we're doing that at their own free will as an adult is that the situation afraid of and I guess my question is doesn't that earlier victimhood that earlier being a victim of sex trafficking don't the consequences of that stay with these victims for their whole lives and shouldn't those protections as well all I think you're right I think that they do stay with them for their whole life and here is. To get to the heart of it. I'm not talking about blaming a victim or Asserting that a plaintiff is at fault because of earlier victimisation. The evidence for these civil cases is evidence that comes in with respect to what happened to this plaintiff at these hotels or motels that's where the. The evidence is presented. And the evidence can be mixed. This is somewhat in response representative gas waste question as well. A person can be both a victim of human trafficking by virtue of fraud coercion or threat. And also be a willing participant in certain acts or conduct which happened at the same motel or hotel. The jury is entitled to hear all of those facts and evaluate the percentage of fault of the plaintiff the percentage of fault of the hotel or motel in many of these cases up the plaintiff is not going to be assessed any fault at all. And the defense is not going to assert the defense of the victim. I understand that there is in the case that. Meredith referred to were the allegation of comparative fault was put into an answer by someone on a six year old victim I mean. That's not going to happen in a trial set. No lawyers going to pursue that defense. The judge is not going to instruct the jury on the fault of the six year old he's going to fight as a matter of law that there is no fault. But to answer your question it is of. The victim's life. A sexual abuse at an early age trafficking at an early age all of that evidence may come in so that the jury can understand. The damages and. What her future is going to be like but the evidence regarding the fault is going to be the evidence that happened at that institution. Represent Gazaway you're recognized for a question. Thank you madam chair so as we sat here and then kind of debated this it kind of occurred to me I think as an analogy kind of what we're doing here. with the elimination of comparative fault in this particular instance so what it reminds me of instead to get your take on it what reminds me of is in the criminal context for instance we say that a victim of rape under the age of thirteen cannot consent they're not legally capable of consenting right even if the facts were to be that they appeared to be a voluntary participants even if the facts were that they said yes to the conduct we by law say they're not capable of consenting because they're under the age of thirteen for instance they're not you know they don't they don't have the developmental capacity to even understand. Yeah that seems to be very similar to what we're doing here except in the civil context where we say once there's been a finding that a person is a victim of human trafficking by virtue of conduct that is fraudulent by force or coercion. Therefore if a at some point consented to the conduct or if that one particular time they were willing participant in some type of act of prostitution for instance that we're not going to consider that because. Given the fact in the proof that apparently has been proven to a jury that this was all the product of fraud for so correct for corrosion the fact that on one occasion they or or other occasions they may have been a willing participant can't be considered and that seems to me to be very analogous to what we do in the criminal context with children under the age of thirteen where we just say that they're simply incapable of consent and whether there's whether there is proof that they said yes or that they wanted to do that we don't allow that and so I mean do you see in a material difference in those two situations I do at that if this statute had some sort of age qualification to it I think that might be an apt analogy but here it's not as simple as saying. The court determines this person has been the victim of force fraud threat of course and these are all going to be jury questions the jury's going to have to decide it and in the same context and in the same case and in the same jury deliberation they're going to have to decide whether plaintiff bears any personal responsibility at all it can be both. The jury may be asked may conclude that the plaintiff was not the victim of force fraud and coercion. And that the plaintiff was a hundred percent at fault that there can be that case. so because you are looking at in the in the context of a. Single trial with the jury deliberation on all issues to legislatively preempt. The fault of the plaintiff takes that away from the jury and no one ever gets to make the determination. Of whether she still got approved he or she must still prove that they were a victim of force fraud or coercion. But in the same context they're going to have to evaluate the conduct of all parties including the. The criminals in the traffickers who were responsible for. Represent guess what you're recognized for a follow up. Thank you madam chair and one and again in so to me that sounds like a policy decision much like it's a policy decision for this legislature to decide that victims under the age of thirteen incapable of consent and consent is not a defense in that situation and we do that in in civil context all the or criminal context all the time we say certain conduct is not a defense you know to this this particular charge seems to me to be a very similar thing that we're doing here just in a civil context to say that if in fact the person was a victim of human trafficking then compared to Baltz not an issue at and so to me from a policy standpoint this seems to me to be something that would be well within this legislature's ability to decide if we so choose that that should be the law I agree it is within the legislature substantive law right to make that decision and make that policy decision. I just submitted as a bad one and that we've got. Arkansas juries who make these tough decisions and evaluate the evidence all the time and you're taking that away from the defendant's to allow the jury to consider all of that evidence and the right to a jury trial is so sacrosanct to me that I believe this to be bad legislation. Seeing no further questions thank you Mr Donovan for your testimony today thanks so much madam chair but we have Denise Hendren who signed up to speak for the bill ms Hendren if you come to the in the table identify yourself to be recognized to make your statement. Thank you I'm Denise Hoggard I'm one of the attorneys that rainwater Holt and Sexton and I call myself two thirds of the trial team that recently tried the case in January against America's best value inn. I disagree and take exception with Mr Donovan's statement about how we treat a victim in this case I watched Mr Donovan at trial. Sitting at counsel table listening to him call our client a consensual sex worker and arguing to that jury to please put blame on her so we give you a little context she was twelve when she was first traffic by her mother sold to a drug dealer. She was sold. Two two different traffickers brought from their home in Houston to little rock where she knew no one and she was passed from trafficker to trafficker. He argued she was a consensual sex worker and let me tell you what her testimony was yes I consented to prostitution because I knew I'd get beaten to death if I didn't. And in fact she was left on that parking lot for five hours dying and the hotel. Thirty two campus on the parking lot did nothing someone happen to ponder and with four doses of nor can she survive. This act will to find a victim allow the jury to hear the evidence and determine if they think the person is a victim and then and only then move to the issue of damages the definition. Has meaning if we then say. While you're at fault if you're a victim. It has no meaning. And that's what happened in this case Mr Donovan argued that this victim of sex trafficking was only sometimes affected. When she was there she was there because she was coerced to be the jury. Could make that decision and then move on to finding fault now we've talked about compared to fault and representative calling to ask a question about how that would work in practice while in this case the trafficker was also before the jury to have fault allocated or apportioned so keep that in mind if there are other people who are responsible we're not suggesting a change that would take away that allocation of fall to other tort for users to people who have done something wrong. Which is saying the victim of sex trafficking is not a tort fuser and her conduct as a victim should not be compared with tort she's service I'm like Mr Donovan I've been doing this for forty years and I can tell you that while he's saying defense attorneys will be making these arguments. when it's not proper I don't want to rely upon the good will or sound judgment of the defense attorneys I want to rely upon the law which will be equally applied to all. Thank you will you entertain any questions if there are any yes ma'am are there any questions members. Representative Crawford you're recognized for a question thank you from the non lawyer in the group. David Donnan Hugh Donovan skews me. He mentioned that if this were to pass that they would use the same language in other civil cases to come against businesses if I heard him correctly Can you speak to that certainly the first thing that would have to happen is that we would have to be able to prove that a business was negligent and that they knew or should have known that there was victims of sex trafficking being trafficked. And that they were in essence complicit that they turned a blind eye so that it would happen or they would allow it to happen on their premises are under their watch so if you look at massage parlors as an example that's another place where we see people who are victimized as sex trafficking victims so yes if they knew or should have known. That there was sex trafficking going on in that there were fix to victims of sex trafficking yes we have the ability to file suit against them we've made it a decision in our for and we have a team of lawyers that work in this area to say that we want to run sex trafficking. In our hotels and motels out of this state if you're gonna sex traffic you need to take it across the state line because if you're here in Arkansas we're going to do everything we can and put our resources behind advocating on behalf of these victims at coming along side law enforcement so that we help shut down these places of war change the way they do business and it's not that hard to give training there's national free training available so businesses can learn the signs of sex trafficking and then can protect the premises and those of us who might go there from becoming victims. Members any other questions see no further questions thank you for your testimony today that's all the individuals we have signed up to speak for against center for urban you're recognized to close for your bill. Thank you so much madam chair members of the committee normally I would just ask for a good vote to move on but not today. Many of you are new to this legislature so you are here whenever I ran tattoo legislation I got ridiculed for run and how to legislation it's a public health and safety issue and the legislation that was brought to me was brought to me by tattoo artist in the State of Arkansas he wanted to make the profession more professional and they wanted to tighten things up they wanted to make sure that instruments were clean making sure that we would stop the spread of diseases and and also making sure it was an appropriate measure referred for people to have an appropriate thing for people to have so they brought this legislation to meet the tattoo artist of the State of Arkansas profits legislation to me wanting to ban children from getting tattoos under the age of eighteen I negotiated with them and said well the age of consent to get married in Arkansas sixteen so let's do sixteen and why why do you want to ban this is you're putting your putting a ban on yourself for making money because you can tap to right that's your business but they said no it is not right what is happening in the state of Arkansas and they shared with me stories of a grandmother bringing her granddaughter to everyone of them asking them to remove a tattoo that said Daddy's little slot. That's real. In the state of Arkansas. That two two dot to tie to artist was driven by that grandmother bringing her grand child to him saying please remove this tattoo from my grand grandchild for my granddaughter. Because the dad had tattooed on that little girl Daddy's little ****. Think about that. Well that ever get normal. Social relationships entire life. Actually been raped by her father and to to say Daddy's little slot you really think woman's ever going to have a normal relationship with a man after being brutalized as a child. Do you really think a little girl decides one day that she wants to be a prostitute. Do we really believe that. Sex trafficking is probably the most whole think crime I've ever come across. I've got a defense for you. You can't miss. Call the police. Change your practice a business do not allow for this to go on inside of your institutions in your entities. Do the right thing. It is clear what is right and wrong here when you've got a child that is being raped repeatedly by customers coming to the same hotel room. I do not think. That we as a legislature want to dance around these issues of what a jury's going to look like or what a jury's going to consider as facts juries will get all of the facts in these cases and they will be able to make those determinations. But the defense says do the right thing. Don't allow this to continue to happen. Under your watch under your business if that's how you're trying to make money you don't need to make a money. That's not right. It is not right for victims of human trafficking. The to be left in a parking lot at fifteen years old or twelve years old after being sold by the parents into sex trafficking for money and lay there. Dying. And then just turn a blind eye. What happened and we just enjoy it. Federal statues there for a reason. We have to step up in the State of Arkansas understand that this is happening folks it is happening every day in this state there are young girls and young boys that are being trafficked for sex that are being sold for drug money that are being sold to make money they're a commodity. Their bodies are a commodity. And this law is appropriate law it is a public policy declaration. There are laws on workman's comp laws I can name the statute where there is the benefit of comparative fault we have made that a public policy declaration and we have a lot of on the books in the State of Arkansas that does that so the man is incorrect he is wrong. I'm gonna in with one other story. And the federal statutes right here where we're knew or should have known is in the federal statute so. The testimony was incorrect. Last three one share with you is is somebody. Came to me. And after nine years. Nine years. Watching. Somebody. The tier eight made bad choices make bad decisions never being able to get the right relationship and I live with a man. Finally said you know I was rate. When I was a sophomore in college on a college campus. It took nine years. For that young woman to tell her family. Nine years. And I've seen my friends go through the heartache of all of that. We have an opportunity to make a public policy declaration that's what this legislature does you are the policy makers here in the state of Arkansas it's time to send a real clear message. To this industry and to those people that are making money off of these young women and men. I appreciate you listening to me and I hope that you will vote for my bill. Member center Irvin has close for a bill I have a motion to do pass is there any. Is there any discussion on the motion. Representative Scott you have some discussion. Thank you madam chair I just wanna ask the committee to consider voting in support of this bill during the ninety second General Assembly I remember being a freshman and coming here and working to pass legislation so that we went to prosecute children who are being traffic it through prostitution if that makes sense and I worked with a representative Petty so I have always been trying to figure out a way to advocate for these victims since I arrived at this campus and we fight for everybody else but we can't look past their backgrounds and things that they went through where they were always a victim somebody always fill them in society and I'm asking today I'm not fighting for big businesses I'm fighting for these kids I think for these young ladies and I ask you to support this bill. Members any other discussion. Seeing no further discussion we have a motion on the floor to pass the Senate bill two eighty two all in favor please say aye. All opposed say no the ayes have it congratulations you've passed your bill thank you and just want to thank you on behalf of. Victims who are friends of mine thank you so much. Members will move to House Bill fourteen oh eight representative brown. Patiently waiting. House Bill fourteen oh eight. He has amendments to the. amendments are being passed out right now to Fortino eight once those are passed out then I recognize you to present your amendments thank you manager. All right represented brown you're recognized to present your amendments to house bill fourteen oh eight thank you ma'am Jr colleagues this amendment on the table for Fortino eight is technical corrections that some comments we receive in the original bill it also adds the Senator Tucker as a co sponsor of the bill and I appreciate a good vote. Glad to answer any questions members are there any questions on the amendments. Seeing no questions to have a motion to adopt I have a motion to adopt the amendments any discussion all in favor please say aye any oppose ayes have it your amendments have been adopted you're recognized to present your bill as amended thank you senator thank you Committee at madam chair may I please invite Mr cliff beginning yes I was well respected member of the bar here in Arkansas in a member of the Arkansas representing former law commission or yes and he's here to be the answer man for when we get to the weeds I can answer the questions House Bill Fortino eight is intended to his uniform all it's been a proposed a uniform law commission those are the folks for the non lawyers in the room they handle things like our uniform commercial code things like that and by and large they come out some pretty good laws and this is to address the issue of easement under current Arkansas law Mr me please of regimen about butter this Arkansas law if you have an easement across somebody's property you cannot relocate the easement without the permission of the easement holder and this uniform law would create a mechanism whereby a person knows the serving in a state the property easement goes over could petition a court to have easement re located only if certain conditions are met the biggest one is that it could be relocated such a manner that does not affect the easement owners use of the easement I think the best analogy for this is if you have a roll you on eighty acres of land farmland but your neighbor is a need to go right through until your property gets there laying behind you well this creates a procedure where they're not willing to move over to the fence line you could go to court and be able to demonstrate to a judge and a judge we can move this season over the fence line it's not gonna be any skin off his TV is to get to his land no problem and it's really gonna help me out because now we have a full eighty Institute forties under the law the as part of this process yet to demonstrate again no burden to these men holder and you also to pay one hundred percent of all costs so there's a nice road two million land we guess what you're going on the road by the fence and And so that's pretty much it and not shall be glad to answer any questions the committee might have religious McKinney hopefully correct me if I but you're anything on that. Members any questions. Represent guess what you're recognized for a question well and thank you madam chair this may actually may want to if Mr McCain is gonna make a presentation I may want to wait until he's finished with his presentation but I do have some questions speaking would you like to make a statement. I I can if you'd like but I'll just be brief again click McKinney here on behalf of the Arkansas Bar Association I am also one of our state uniform law commissioners this act is basically intended to deal with those situations where you do have a private easement this is not meant to be the deal with the public the this is only for private style type of easements and it's just to facilitate and provide a mechanism for courts to to do the right thing in situations where you have neighbors It disagreeing about the the location of the easement but again I'm I'm more than happy to answer questions about this. And guess what thank you manager at so I guess let me begin by saying that I always look at these uniform laws with some skepticism because over the years as you well know in Arkansas we do we've developed a lot of case law surrounding easements and You know how how a person can have easements conform how easements can be granted Processes related to that of course we have our own I guess state specific statutes on these issues and so I guess generally my question is why is the uniform law a good change to. Number one and and does it up and if you will a lot of Arkansas specific whether that's case law or statutes is it going to you know really because a big change in the way that we've done things for decades here in Arkansas. So would be glad to address that. And there's a couple different questions there so if I miss one yeah please let me know I'll come back to it but this does change the common law this does change the way that things have been done for ages and is really intended to aim at those what I call hostage taking situations that that's probably its primary aim you give you just a few examples I I had one not too long ago where a client had inherited some property there was a septic easement septic sewers isn't that went over there the property line under the neighbor's property which is actually a relative who did not like the person who inherited this is a spiked case and the person offered that the owner had offered to bring city sewer service to the properties and so this is the property to be said Sir by city sewer and the the relative next door said no I'll write my set I like my septic system easement right away I've got it is staying right there because I know it's going to keep you from building a house. Your spite no other purpose whatsoever just yep years of animosity that would be a classic case for this right now we don't have a mechanism in Arkansas law to deal with that situation the the gentleman had aseptic easement you have the right to keep a septic tank there if you wanted. But this would give a mechanism where a court could come in and the whole thing has to go through judicial process you commence the court why is initially there's the the person you're dealing with is being unreasonable you're pretty much always gonna have to prove that someone is being unreasonable I think in the circumstances and that you offered an alternative that does no harm so like in that case the alternative is your yard we want to be a to develop this property we want to be able to use it and we are going to pay to hook our neighbor up to city sewer service. Please let us relocate this easement. That would be an example another one that I had just another example it was a private easement for a for pay for pedestrian purposes it was almost never being used if ever there wasn't a whole lot of evidence to me but it was out there and the neighbor found out who is going to be developing the property into the person developing the property had a lot of money and effort like it was a scene out of Austin powers when they demanded one million dollars it could have been doctor evil making the request it for the million dollars to to relocate their easement it and we had to deal with and we ended up having to pay a ransom for lack of a better term in order to relocate that easement this would have been a great example of again we could have used the statute going to court shown the judge your honor we're building a whole new parking system that can be drive ways there the rate for the ability to get their property is actually gonna be improved improve significantly is gonna go from a dirt road to to paid. If any statements the judge at the end of the day the judge can look at me and say you know there really is a good purpose for that person having a of a septic isn't where it is or a pathway through it is there and we're not gonna let you change it so within that this does not allow a hit and owner of property to act unilaterally it just simply gives them the ability to have a mechanism to convince a judge that a change should be made for right now under common law once an easement is what is unless both parties agree it's stuck where it is. Member center represent guess what you're recognized for follow up thank you manager so. I mean that's interesting at I suppose it depends on. In a county where you side on the issue if you want people in Arkansas it sounds to me people Arkansas currently have their easements and they they have the right to enjoy them to whatever extent they want to but this change is gonna be much easier for developers or other people who may have a. Some problem with the fact that you have an easement may interfere with their ability develop for instance or whatever so as to sounds like to me at this bill would allow them a lot more opportunity to challenge. Your easement or what someone is that accurate but I think that's accurate I don't know that I would say a lot easier it just simply allows a mechanism I would I know I would tell my clients this is your last resort please try to negotiate let's work out of the I would not just instantly right out the court and file this type of action because it is there's a lot of burden you have to follow a lot of steps which have this opens the road for the only opens the road for people to use their property and achieve the highest and best use of their property so from that perspective also viewed as as pro development pro business and and I think it's it's helpful for for people you're recognized for another follow up that thank you manager so I guess. One of the one of my other questions is course this being uniform law how many other states have adopted this so this is one of the relatively new ones what we currently have in terms of adoptions see I've got a list right here. So far two states have adopted Nebraska and Utah and that is also be introduced in Washington is pending there right now but again this is one of the relatively new ones. Representing more you're recognized for a question. Thank you madam chair as a real estate broker member day job is it not true that a court is legally bound and obligated to grant an easement to a land locked. Landholder correct though this was would not address that particular issue this is where there is an existing easement we're trying to remove a relocated does that not. Thank you this does that not set precedent for the court granting and determining where these men goes under the correct you're you're absolutely correct about that yes we already in Arkansas law have mechanism where questions look at landlocked property or property that needs electric or water or some other and and provide a mechanism so this is just kind of an instance extension of that ability. Members any other questions. Seeing no further questions up. I'm sorry represent Crawford you have a question. Thank you madam chair in the analogy or the issue that you talked about to where someone in the family would pay for them to go on sewer but they preferred their septic tank. If in that there was not a place to move that septic tank and they did not want to get on sewer because in my area when you get ounce or you're going to pay megabucks because they haven't a consent decree sure so would the person who really didn't want to get on the sewer if this past with they still be able to stay up there was not room to move deceptive that they would and that type of scenario so if like the septic Service System scenario that I had if the end of the day this losses you shall do no harm to your neighborhood you're moving that there easement from so if they were to go into court and say you are the reason I don't want to be on city sewer is because there are additional cost as other expenses then the person seeking this per move the septic system would either have to move it to somewhere else give them a brand new septic system and the location or they would lose their case so that would be a good justification in this one there was no justification that I hate my cousin and that was that was the reason that if the cousin had asked for it to grow rose bushes the person would have said no I mean it was just purely a spiked scenario. Members any other questions. Signal for the questions thank you Mister McKinney representative brown you're recognized close for your. Thank you madam chair of the committee I would also point out no no no opposition to this bill we did receive some comments and those comments were taken care of in the amendments I appreciate a good vote. Members represented brown is close for his bill I have a motion to do pass as amended any discussion of the motion. Seeing no discussion all in favor please say aye. All opposed say no the ayes have it congratulations you have passed your bill as amended while I have you at the end of the table Mister brown let's move to House Bill Fortino nine. Members of fields are the House Bills Fortino nine. And there are amendments to be passed out on that one also. Senate you're recognized to present your amendment thank you madam chair Kali just minutes just add Senator Tucker is a co sponsor the machine for an explanation I have a motion to adopt the amendment is there any discussion on the motion all in favor please say aye the motion has been adopted your amendment has been adopted you're recognized to present your bill as amended thank you madam chair colleagues I'll be quite honest with you I know less about community property than probably anyone in the room I just know that it exists in Arkansas didn't do it as with that but Mister McKinney make a presentation on this bill. Thank you very much so what this bill is is it's an update to an existing Arkansas law this is a revision of an older uniformed law that was originally written in the early nineteen seventies that Arkansas adopted in the early nineteen eighties that law is meant to provide instruction and guidance to courts when dealing with the situation where you have an Arkansas resident who or Arkansas residents who acquired property as community property when they were living in one of the community property states and so those of you who are familiar with that there are a eight or nine states in the country that use a different style of acquiring the property during marriage than the rest of the country most notably two of those of those eight or nine states happen to border US Louisiana and Texas so we do have a lot of people that come from the states here there's also a handful of additional states that allow married couples that they want to a lot into a community property style of collecting property I if anybody's interested I do have a picture of all the states that are community property states but immediately adjoining is there's two that are automatic and one that's often being Tennessee is an opt in state and so Arkansas is a separate property state we don't use the system but property that was acquired in Texas say when a couple was living in Dallas then moved to little rock it retains its character as community property that's the law today that's always been low but courts in Arkansans and have had difficulty dealing with that and the existing law gives guidance for when someone passes for how to handle those those assets in the in the. Within the family pro for a portfolio that might be community property the biggest thing that this update does get is pretty much a refresh of what we currently have this the fifty year old version law is this one deals with and provide more guidance to deal with situations where people are using non probate transfers in the early nineteen seventies it was pretty unusual for people to use things like trusts or beneficiary deeds to avoid probate so this is updated to take into account those scenarios so again this is primarily just an update of what we already have is a law but I'm I'm happy to answer any questions president Clinton you're recognized for a question thank you madam chairman questions actually about what you just mentioned so I think that we will try center exempted here it I guess what I'm worried about I I I kind of want to know why because I'm worried about a situation see where you've got somebody in Texas to get about a committee property money into a vocal tries to move here and avoid that fifty fifty split is that how that would work and if so why is that it went dead well let me and then the first address the question of why they're in Texas versus here so this only deals with what they do while they're here in our state so anything they may have done as a couple while they were living in Texas that's Texas law going to govern that we're talking about what they do when they're here and actually in that that situation I don't know to revoke which and and maybe if you could point me the specific line Page four line twenty seven line twenty seven just be sure I'm addressing the right questions here. Mrs. Okay so that the key there that's fine too there's a now a cause of action is going to be created to wear a spouse that has another spouse trying to cut them out no matter what the mechanism they're using they're trying to say yes community property but I'm going to move it so you can't get to it there's now a cause of action was spouse will be if this passes can say your honor that should be community property reclassify it what this is referring to is if there's a good faith act or both spouses are and if you consent to your spouse moving something or converting it separate property you're allowed to do that or something that was done in truly good faith died we're not actually going to to to paying anyone for that. Did that help. Sure there's any other questions represent guess what you're recognized for a question. So once again coming at this with with Farrer group skepticism because it's the uniform law only a few states as you mentioned follow community property Arkansas not being one of them it's kind of been portrayed as this is a simple bill that doesn't do much but it's ten pages of mostly new language and then it strikes several sections of existing Arkansas law I mean. To me it seems like this is a kind of a substantial departure from how we do things is not I would not clear for us that is a substantial departure is alone bill because we're deleting what we currently have which is another uniformed law and replacing it with a new uniforms and so that would awarding is updated but substantively I don't see a lot of change your other than dealing with those situations where there's been non probate tried transfers again that's my opinion on the read of it that if you look at what the law is today from that we adopt in the early eighties to what this is going to leave when this The New laws adopted I don't personally see a lot of change. You need to follow up you're recognized okay so then I mean give me your very best argument as to why we need to do this I mean it is not a bit so big change then why do we need to even pass the bill well because there okay thank actually the non probate transfer is is is the number one reason this is our current law is a fifty year old law that we've had for the last forty years and when it was written it was not adequately the written to address what is now common practice of people putting their properties and trust trust for much rare back then also to those situations where people using beneficiary deeds are using some other mechanism I law does not currently adequately address that and so that's the big that's the big thing we're adding with this this is a relatively new actors come out we're actually this year will where the fourth St all right to introduce it so states that have borders primarily is who this is and that this is Texas is not going to the office they are community property states this is it what is uniform act really looking what our neighbors are doing thank you for doing this because of our neighbors we have to. States that are community property boring is another one that's not been state in the form Tennessee so we have people who are bring these assets into the state on a regular basis you're recognized for one more follow thank you madam chair last question so it sounds like to me and and please explain in further detail this isn't accurate but that the way that the property is treated in the community property states it is brought Arkansas under the new. Typical estate planning vehicles that your reference trust beneficiary dates things that weren't maybe in existence or common use when our regional language was drafted it's going to be treated in a way similar to how it's treated now under existing Arkansas law is just takes into account these new vehicles is that accurate accurate less accurate that then probably where there's when there's a little bit more of an adjustment to that statement is well right now what say you bring your assets and in you community property and you move into a trust arguably and again this is this is arguably I'd like to hope that a court would use some discretion here you might be depriving your spouse of their community property interest by doing that under the current law the current law is not designed to take into account someone doing that. Now a spouse can come in and say you're gonna I understand that that my wife and my husband or whoever might be moved the property into distrust this was still my community property and here's the proof that it was my community property it should be treated as community property and so if anything else was plugging a hole and we're giving courts were given course direction as to how to deal with the situation as opposed to having to figure out on their own. Thank you. Members any further questions. Seeing no further questions we have no one who signed up to speak for against the bill representative brown you're recognized close for your bill thank you madam chair colleagues hopefully it was clear McKinney said that the reason the uniform law commission and propose the uniform law back in the seventies we adopted in the early eighties it's been the law till today this is simply the amended version they put out to address these trusts there's no not no no no opposition to the bill I appreciate a good vote. Members represented brown his clothes first bill with the wishes of the committee. Evan motion do pass a discussion on the motion as amended motion to pass as amended a discussion. Seeing no further just saying no discussion on the motion all in favor please say aye. All opposed say no the ayes have it congratulations you passed your bill as amended. The representative Vaught we now have your fiscal impact statement if you want to come forward and we'll finish up on your bill. Thank you madam chair. Just give me a second to get it passed down thank you. All right members you have before you the impact assessment for house bill fifteen thirty six. Are there any questions. On the fiscal impact statement. any discussion on the fiscal impact statement. Seeing none of we heard this bill earlier I'm not sure that we really had a lot of uh time for questions at that point because we were kind of stopped waiting on the fiscal impact statement members are there any questions of the bill sponsor of this bill. Seeing the questions we've already heard testimony on this bill representive out you're recognized to close for your bill I'm close for my bill I would appreciate a good vote that I don't. I'm glad to see it's a minimal impact that that makes me happy but anyway with that man manager I'm close not appreciate a good vote membership save on his clothes for bill with the wishes of the committee. I have a motion to pass on the table is there any discussion on the motion representative Collins you're recognized for discussion. Thank you madam chair I I just kind of want to discuss this because we haven't had a whole lot of time to you know we had talked about very much but you know there is a a negligent homicide statute that allows for to be a Class B. felony when someone's intoxicated just like in this proposed bill except the differences this proposed bill would be murdered a class I felony the difference in those punishments for Class B. felony it's it's not less than five years and not more than twenty for Class As not less than six not more than thirty so really all we're doing here is is saying that it would be murder it would allow for a few more years in the high and I don't know I don't know that that's going to solve very much honestly I mean is there bad situations but I don't think we're related. Improving anything by making this Class Everson's Class B. and and and that's why I'm a no on this I just think this this is negligent homicide or manslaughter depending on the circumstances it doesn't really seem like malice aforethought didn't really seem like murder I don't know that we need to make this change appreciate the bill out now. Represent guess what you're recognized. Thank you madam chair and once again I have the deepest sympathy for anyone who has. The victim or found themselves Living in a situation where they've had a lot of everyone who died under the circumstances I in fact prosecuted these cases on more than one occasion and they were. absolutely heart wrenching and once again the victims families who were left behind I'll never forget meeting with with many of them and working to try to get justice in the case but with that being said this particular course of conduct as representative Collins mentioned is already covered under. negligent homicide which is has been bumped up to a Class B. felony that carries twenty years in the department of corrections. I think it makes things more difficult for prosecutors when you start making it harder because that enhances the type of proof that you have to put on in order to get a conviction unlike negligence which is a much lower mental state required requires and a negligent mental state or requires proof of intoxication of just point zero eight or more I think that's actually easier for prosecutors if the issue is is that we just think that someone needs more time than the twenty years that's currently forty by statute there may be another way to do that by imposing an enhancement if someone's level of intoxication is obscene you know over over a certain amount and that I think that would maybe be a better way to address the issue if the issue is truly that there's the statute does not allow sufficient amount of time given the twenty years that's currently authorized by negligent homicide but I think putting it under the murder statutes that incorporating all the mental states and elements that are necessary to prove in order to sustain a conviction actually complicates things a bit and so it. I don't want to be opposed to this bill and I'm certainly not impose your intent I just think there may be a better way of doing it and so for that reason I can't vote for it today but I'm certainly not opposed I certainly have the greatest sympathy for anyone who's entered the situation and would like to be helpful and find a solution so those are my comments thank you. Members any other discussion on the motion we have a motion on the table all in favor of the do pass motion please say aye. All opposed say no. The nose habit. Save Lundstrum we're down to you members we have one more bill house bill fifteen seventy seven. Hang on representative Lundstrum we understand you have an amendment had an amendment that may be on members and we're looking to see if it's been engrossed. It's just on the House calendar today so. We can't do it but you're you're on on our agenda for Thursday so we welcome you back come Thursday thank you and I'll make it very quick. So you had to wait for all of that but we just now realized. Members thank you so much for all of your hard work today I know is this time of the session and we just have to get through these things up once again let me tell you what we have on tap for Thursday we're going to have Senate bill two O. four. Senate bill two O. four house bill fifteen twenty one. House Bill fifteen forty seven. Senate bill two sixty three. House Bill fifteen sixty four. House Bill fifteen seventy six in house bill fifteen seventy seven now that's a lot. for Thursday and if we can meet earlier we will and we'll let you know if we can come in earlier I think we can get it done but do we have a budget I've I figured we had budget. Pretty sure we have budget I do not want to bring this in after session on Thursday because I know you all or is ready to go home as I am but what we'll do is we'll go just as fast as we can but at the same time as thoroughly as we can on Thursday if we don't get to these bills will move them over to the first available date after spring break thank you so much for your hard work with that we are injured.