Legislature(2005 - 2006)BUTROVICH 205

03/08/2006 08:30 AM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
<Bill Hearing Canceled>
Moved SCS CSHB 92(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 8, 2006                                                                                          
                           8:34 a.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Ralph Seekins, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Hollis French                                                                                                           
Senator Gretchen Guess                                                                                                          
MEMBERS ABSENT                                                                                                                
Senator Gene Therriault                                                                                                         
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 206                                                                                                             
"An Act  relating to material  witnesses; and amending  Rule 58.1,                                                              
Alaska Rules  of Civil  Procedure, and Rule  204, Alaska  Rules of                                                              
Appellate Procedure."                                                                                                           
     HEARD AND HELD                                                                                                             
SENATE BILL NO. 222                                                                                                             
"An  Act  relating  to breaches  of  security  involving  personal                                                              
information,  consumer report  security  freezes, consumer  credit                                                              
monitoring,  credit   accuracy,  protection  of   social  security                                                              
numbers, disposal  of records,  factual declarations  of innocence                                                              
after  identity theft,  filing police  reports regarding  identity                                                              
theft,  and furnishing  consumer  credit header  information;  and                                                              
amending Rule 60, Alaska Rules of Civil Procedure."                                                                             
     SCHEDULED BUT NOT HEARD                                                                                                    
CS FOR HOUSE BILL NO. 92(JUD)                                                                                                   
"An  Act  relating  to the  purchase  of  interests  in  nonprofit                                                              
corporations by the University of Alaska."                                                                                      
     MOVED SCS CSHB 92(JUD) OUT OF COMMITTEE                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 206                                                                                                                  
SHORT TITLE: DETENTION OF MATERIAL WITNESSES                                                                                    
SPONSOR(s): SENATOR(s) BUNDE                                                                                                    
01/09/06       (S)       PREFILE RELEASED 12/30/05                                                                              
01/09/06       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/09/06       (S)       JUD, FIN                                                                                               
02/16/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
02/16/06       (S)       Heard & Held                                                                                           
02/16/06       (S)       MINUTE(JUD)                                                                                            
02/27/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
02/27/06       (S)       Scheduled But Not Heard                                                                                
03/08/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
BILL: HB 92                                                                                                                   
SHORT TITLE: UNIV. OF ALASKA & NONPROFIT CORP STOCK                                                                             
SPONSOR(s): REPRESENTATIVE(s) KELLY                                                                                             
01/21/05       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/21/05       (H)       EDU, HES                                                                                               
04/05/05       (H)       EDU AT 11:00 AM CAPITOL 106                                                                            
04/05/05       (H)       Heard & Held                                                                                           
04/05/05       (H)       MINUTE(EDU)                                                                                            
04/06/05       (H)       HES REFERRAL WAIVED                                                                                    
04/06/05       (H)       JUD REFERRAL ADDED AFTER EDU                                                                           
04/07/05       (H)       EDU AT 11:00 AM CAPITOL 106                                                                            
04/07/05       (H)       -- Meeting Canceled --                                                                                 
04/12/05       (H)       EDU AT 11:00 AM CAPITOL 106                                                                            
04/12/05       (H)       Moved CSHB 92(EDU) Out of Committee                                                                    
04/12/05       (H)       MINUTE(EDU)                                                                                            
04/14/05       (H)       EDU AT 11:00 AM CAPITOL 106                                                                            
04/14/05       (H)       -- Meeting Canceled --                                                                                 
04/18/05       (H)       EDU RPT CS(EDU) NT 1DP 5NR                                                                             
04/18/05       (H)       DP: LYNN;                                                                                              
04/18/05       (H)       NR: THOMAS, WILSON, GATTO, SALMON,                                                                     
04/18/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/18/05       (H)       Scheduled But Not Heard                                                                                
04/19/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/19/05       (H)       Heard & Held                                                                                           
04/19/05       (H)       MINUTE(JUD)                                                                                            
04/22/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/22/05       (H)       Moved CSHB 92(JUD) Out of Committee                                                                    
04/22/05       (H)       MINUTE(JUD)                                                                                            
04/26/05       (H)       JUD RPT CS(JUD) NT 1DP 6NR                                                                             
04/26/05       (H)       DP: MCGUIRE;                                                                                           
04/26/05       (H)       NR:     KOTT,    GRUENBERG,     ANDERSON,                                                              
                         DAHLSTROM, COGHILL, GARA                                                                               
04/28/05       (H)       TRANSMITTED TO (S)                                                                                     
04/28/05       (H)       VERSION: CSHB 92(JUD)                                                                                  
05/01/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
05/01/05       (S)       HES                                                                                                    
02/09/06       (S)       HES REFERRAL WAIVED                                                                                    
02/09/06       (S)       JUD REFERRAL ADDED                                                                                     
03/02/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
03/02/06       (S)       Heard & Held                                                                                           
03/02/06       (S)       MINUTE(JUD)                                                                                            
03/08/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
WITNESS REGISTER                                                                                                              
Senator Con Bunde                                                                                                               
Alaska State Capitol                                                                                                            
Juneau, AK 99801-1182                                                                                                           
POSITION STATEMENT: Sponsor of SB 206                                                                                         
Lauren Rice, Legislative Aide                                                                                                   
Staff to Senator Bunde                                                                                                          
Alaska State Capitol                                                                                                            
Juneau, AK 99801-1182                                                                                                           
POSITION STATEMENT:  Answered questions related to SB 206                                                                     
Dean Guaneli, Chief Assistant Attorney General                                                                                  
Criminal Division                                                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Commented on SB 206                                                                                      
Derek Miller, Legislative Aide                                                                                                  
Staff to Representative Mike Kelly                                                                                              
Alaska State Capitol                                                                                                            
Juneau, AK 99801-1182                                                                                                           
POSITION STATEMENT: Answered questions regarding HB 92                                                                        
ACTION NARRATIVE                                                                                                              
CHAIR  RALPH   SEEKINS  called   the  Senate  Judiciary   Standing                                                            
Committee meeting  to order at  8:34:56 AM. Present  were Senators                                                            
Hollis French,  Gretchen Guess,  Charlie Huggins, and  Chair Ralph                                                              
             SB 206-DETENTION OF MATERIAL WITNESSES                                                                         
8:35:09 AM                                                                                                                    
CHAIR RALPH SEEKINS announced SB 206 to be up for consideration.                                                                
SENATOR CHARLIE  HUGGINS moved to  adopt version G as  the working                                                              
document before  the committee. Hearing no objections,  the motion                                                              
SENATOR  CON BUNDE  explained that  the  impetus of  the bill  was                                                              
derived  from instances  such as  gang  violence where  witnesses,                                                              
including  victims,  refused to  talk  to  the police  during  the                                                              
investigation. The  bill would promote  the rights  of law-abiding                                                              
citizens and the need to control crime.                                                                                         
8:38:12 AM                                                                                                                    
It  would allow  for  temporary  detention and  identification  of                                                              
people who  police have  reason to believe  have committed  or are                                                              
about to  commit a crime,  or have witnessed  a crime.  The person                                                              
who is temporarily  detained shall permit one or  more photographs                                                              
to be  taken, shall  verify their  identity,  and shall submit  to                                                              
fingerprinting.  People would  still retain  their Miranda  Rights                                                              
and not have to answer any questions, he stated.                                                                                
8:40:49 AM                                                                                                                    
LAUREN RICE,  Staff to  Senator Bunde,  advised committee  members                                                              
that staff worked  with the Department of Law (DOL)  to create the                                                              
committee substitute  (CS). She  highlighted the phrase  "is about                                                              
to  commit  a crime"  and  recognized  that might  make  lawmakers                                                              
nervous but said  there is case law established  that supports and                                                              
defines that phrase.                                                                                                            
8:42:15 AM                                                                                                                    
SENATOR  GRETCHEN  GUESS  asked  whether  a person  who  is  being                                                              
temporarily detained has Miranda Rights.                                                                                        
SENATOR  HOLLIS  FRENCH  explained   Miranda  Rights  pertains  to                                                              
custodial interrogation.                                                                                                        
SENATOR BUNDE said  he might have been overbroad  when saying that                                                              
Miranda Rights would  be intact. He suggested everyone  knows they                                                              
are not required to answer questions without legal advice.                                                                      
SENATOR  FRENCH  said  the  CS  seemed  much  different  from  the                                                              
original  version   and  asked   Senator  Bunde  to   explain  the                                                              
evolution of the bill.                                                                                                          
SENATOR   BUNDE   said  the   original   bill  was   awkward   and                                                              
ineffective.  Version  G  is  designed  to  help  law  enforcement                                                              
during  investigations,  yet  it  would  keep  in  mind  citizen's                                                              
8:46:42 AM                                                                                                                    
CHAIR  SEEKINS said  he could  see how  the bill  could be  easily                                                              
abused.  He  posed  a  hypothetical  situation  of a  group  at  a                                                              
hunting camp where  a state trooper suspects poaching  and asks to                                                              
take  photographs  and fingerprints.  He  said some  people  would                                                              
have a real problem with that.                                                                                                  
SENATOR  BUNDE   countered  that  the  bill  is   tailored  toward                                                              
commission of a  felony crime toward a person or  property so that                                                              
situation would not apply.                                                                                                      
CHAIR SEEKINS  said he did  not agree that  most people  know when                                                              
their  legal  rights kick  in.  He  also expressed  concern  about                                                              
people in the vicinity  of a crime getting corralled  into a crime                                                              
scene and detained at length.                                                                                                   
8:51:02 AM                                                                                                                    
SENATOR  BUNDE  countered  a  person  could  look  at  the  Second                                                              
Amendment in  the same way. "We have  to put up with  a few idiots                                                              
in order that the rest of us have rights," he said.                                                                             
DEAN  GUANELI, Chief  Assistant  Attorney  General, Department  of                                                              
Law (DOL),  explained the  process of  how the  CS came  about. He                                                              
said the  original version brought  about questions as to  how far                                                              
the police  should be able to  go to collect  witnesses. Anchorage                                                              
Chief of  Police Walt Monegan  testified that  the bill was  a bit                                                              
broader than  necessary and that  all they wanted was  the ability                                                              
to  talk to  people  about crimes  that  had  been committed.  Mr.                                                              
Guaneli assisted in revising the bill.                                                                                          
8:53:57 AM                                                                                                                    
MR. GUANELI  referenced what  he termed  a "landmark decision"  by                                                              
the United  States Supreme  Court in the  case Terry  versus Ohio.                                                              
The  law gives  police authority  to temporarily  detain a  person                                                              
who  they have  reasonable suspicion  to believe  has committed  a                                                              
crime. Police are  trained and they know when they  are allowed to                                                              
make  a "Terry  Stop"  where they  stop someone  in  order to  ask                                                              
questions. Over the  years the courts have placed  restrictions on                                                              
what police  are allowed to do in  a Terry Stop yet  recently they                                                              
have loosened up  some of those restrictions. For  example, Nevada                                                              
has recently  made it a crime for  a person, during a  Terry Stop,                                                              
to refuse to give their name to the police.                                                                                     
8:57:11 AM                                                                                                                    
In Alaska it was  once the law that the police  could make a Terry                                                              
Stop for  a person  they believed  posed a  significant danger  to                                                              
the  public.  More  recently  the  Alaska  Court  of  Appeals  has                                                              
loosened  up on  that and  specified  that the  detention must  be                                                              
brief.  The detention  must  also  be at  the  vicinity where  the                                                              
person is detained.                                                                                                             
8:59:13 AM                                                                                                                    
SENATOR BUNDE excused himself to another committee.                                                                             
SENATOR FRENCH  clarified for  the committee  that the  Terry Stop                                                              
evolved  due to  the  need  for police  to  pat down  suspects  to                                                              
ensure that they did not possess a weapon.                                                                                      
MR. GUANELI  agreed but  said it  also allowed  for the  police to                                                              
obtain names.                                                                                                                   
SENATOR FRENCH  noted it was easy  for police to  confuse suspects                                                              
with innocent  bystanders. He  cautioned Mr.  Guaneli to  be aware                                                              
not to expand the concepts embedded in current law.                                                                             
9:02:01 AM                                                                                                                    
MR. GUANELI  said he was trying  to keep the two  groups distinct.                                                              
He  continued  by  advising  the committee  of  the  American  Law                                                              
Institute, a group  that adopts model laws and  their "model penal                                                              
code" was  adopted in Alaska  in 1980 as  the criminal  code. They                                                              
are  a well-respected  legal  think  tank  and they  have  another                                                              
model  law of  pre-arraignment  procedure,  which governs  arrests                                                              
and  stops.  One of  the  provisions  in  that model  law  permits                                                              
police  to stop  witnesses of  a crime.  That model  law has  been                                                              
cited by  the criminal  courts in Alaska  with approval.  "That is                                                              
what this bill adopts," he said.                                                                                                
9:05:30 AM                                                                                                                    
MR. GUANELI  referenced page  2(a)(1-2) and  continued the  reason                                                              
he included law  regarding suspects and witnesses  is because when                                                              
police come  upon a gang shooting,  they come across  many people,                                                              
some of whom  are involved and some  that are not. He  said it was                                                              
important that both provisions be set out.                                                                                      
9:07:01 AM                                                                                                                    
The primary  concept of  the two  provisions is  that for  a crime                                                              
against a  person or a  felony property  crime where a  person may                                                              
have  information that  would aide  in the  investigation of  that                                                              
crime  that the  temporary  detention is  necessary  to obtain  or                                                              
verify identification of the person.                                                                                            
9:09:00 AM                                                                                                                    
CHAIR  SEEKINS asked  whether the  Section 2  provisions were  all                                                              
MR. GUANELI  said the section would  be clearer if  the provisions                                                              
were  set  out   in  subparagraphs  but  they   are  all  separate                                                              
CHAIR SEEKINS  suggested that the  bill needed to be  drafted more                                                              
clearly.  He  asked  Mr.  Guaneli   for  an  example  of  "exigent                                                              
MR. GUANELI deferred to Senator French.                                                                                         
9:11:02 AM                                                                                                                    
SENATOR FRENCH said  he had the model code definition  and it says                                                              
that the model  code supports requiring exigent  circumstances for                                                              
the stop of a  witness. It takes the position that  an officer may                                                              
detain  a witness  only when  a serious  crime occurred  recently;                                                              
the  officer reasonably  believes that  the witness's  information                                                              
will materially  assist in  the investigation,  and the  detention                                                              
is necessary.                                                                                                                   
MR. GUANELI  added subsection (d)  tells the police what  they can                                                              
do in connection  with a detainee. The bill would  allow police to                                                              
constitutionally verify  the person's identification  by viewing a                                                              
governmental identification or by obtaining fingerprints.                                                                       
9:14:45 AM                                                                                                                    
CHAIR SEEKINS  said he understood the  bill to be drafted  so that                                                              
it is  not restricted  or limited  to crimes  against a  person or                                                              
felony crime.  Section 2 paragraph  (1) ends  with an "or"  and so                                                              
suggests that the law could be enacted for any crime.                                                                           
MR. GUANELI agreed  that the provision under (a)(1)  does apply to                                                              
any crime.  However the  provision under  (a)(2) would  apply only                                                              
to crimes against persons or a serious crime against property.                                                                  
9:17:57 AM                                                                                                                    
CHAIR SEEKINS  said in  effect, beyond  the material witness  side                                                              
of things, the bill is casting a much wider loop.                                                                               
MR. GUANELI said  he does not believe the bill  would allow police                                                              
to detain  any additional  suspects  of crimes  that they  are not                                                              
currently able to detain.                                                                                                       
CHAIR  SEEKINS countered  that it  does add  to the  threat. If  a                                                              
person  does not comply  with the  police they  could charge  that                                                              
person  with interfering  with  an  officer of  the  law, even  if                                                              
there were no crime committed.                                                                                                  
MR. GUANELI agreed.                                                                                                             
9:19:33 AM                                                                                                                    
SENATOR FRENCH said  the subject was troubling to  consider but on                                                              
the other  hand he agreed  it was wrong for  people to be  able to                                                              
leave  the  scene  of  a crime  when  they  have  information.  He                                                              
suggested   that  officers   snap   pictures  of   the  area   and                                                              
surrounding public in order to aid in the investigation.                                                                        
9:22:57 AM                                                                                                                    
CHAIR SEEKINS opined  federal officers sometimes  use intimidation                                                              
to force  people outside of  their constitutional rights.  He said                                                              
the committee  would want to  make sure  they don't set  people up                                                              
in escapable situations.                                                                                                        
MR. GUANELI promised to keep working on the bill.                                                                               
9:25:38 AM                                                                                                                    
CHAIR  SEEKINS referred  to  subsection  (a)(2) and  suggested  it                                                              
could be drafted more clearly.                                                                                                  
MR.  GUANELI  agreed. He  continued  explaining  the CS  and  said                                                              
subsection  (c)  tells police  what  they  can  do in  respect  to                                                              
witnesses  of crimes.  It  would  give an  officer  the chance  to                                                              
identify  the person  for future  investigatory needs.  Ultimately                                                              
it is  the obligation  of every  citizen to  provide testimony  in                                                              
court unless they have a legal privilege not to.                                                                                
9:28:46 AM                                                                                                                    
MR.  GUANELI continued  subsection (c)  expands on  the notion  of                                                              
the ability of the  police to issue a subpoena even  if the police                                                              
do not know who the person is.                                                                                                  
9:29:22 AM                                                                                                                    
CHAIR  SEEKINS  asked  whether  there  was  a  difference  between                                                              
serving a subpoena and issuing a subpoena.                                                                                      
MR.  GUANELI  explained  that  serving   a  subpoena  is  where  a                                                              
designated  official actually hands  it to  the person.  Issuing a                                                              
subpoena is something that the courts do.                                                                                       
CHAIR SEEKINS  noted a police  officer is  not an employee  of the                                                              
court. He  questioned who would  issue the subpoena when  a police                                                              
officer serves it.                                                                                                              
MR.  GUANELI  said subpoenas  are  issued  by  the court  but  are                                                              
generally available to any party to serve.                                                                                      
9:34:33 AM                                                                                                                    
SENATOR  FRENCH  said  there are  times  when  simply  identifying                                                              
oneself could  be incriminating.  He said the  issue was  "an area                                                              
of minefields."                                                                                                                 
MR. GUANELI  did not  agree. He  said requiring  someone to  speak                                                              
their name does not pose an infraction of rights.                                                                               
9:38:16 AM                                                                                                                    
SENATOR FRENCH  said that  the US Supreme  Court pointed  out that                                                              
there could  be a case  where furnishing  identity at the  time of                                                              
the stop would  give police a link  in a chain of  evidence needed                                                              
to convict the individual of a separate offense.                                                                                
9:40:01 AM                                                                                                                    
MR.  GUANELI  summarized  his  discussion  of the  bill  and  said                                                              
Section 1 would  be a change in statute in regards  to contempt of                                                              
court. He said  it has been in  need of amendment for  years. With                                                              
respect  to   violating  a  subpoena,  the   midlevel  misdemeanor                                                              
offense is appropriate.                                                                                                         
9:42:44 AM                                                                                                                    
CHAIR  SEEKINS said  he has a  construction problem  with  how the                                                              
bill flowed and  suggested that it needed re-drafting.  He held SB                                                              
206 in committee.                                                                                                               
CHAIR SEEKINS announced a brief recess at 9:46:32 AM.                                                                         
          HB 92-UNIV. OF ALASKA & NONPROFIT CORP STOCK                                                                      
9:54:45 AM                                                                                                                    
CHAIR  RALPH SEEKINS  announced  SCS  CSHB 92(JUD)  to  be up  for                                                              
DEREK  MILLER, Staff  to Representative  Mike  Kelly, advised  the                                                              
committee  that the  concerns  of the  previous  meeting had  been                                                              
9:56:39 AM                                                                                                                    
SENATOR FRENCH reported  that Ms. Green of the  University Council                                                              
sent him a memo  about the piercing of the corporate  veil. He did                                                              
not get an answer to his concern of whether other states have                                                                   
adopted the same model.                                                                                                         
MR. MILLER indicated the bill was modeled after legislation from                                                                
other states.                                                                                                                   
CHAIR SEEKINS closed public testimony.                                                                                          
SENATOR HUGGINS moved SCS CSHB 92(JUD) from committee with                                                                      
individual recommendations and attached fiscal notes. Hearing no                                                                
objections, the motion carried.                                                                                                 
9:58:53 AM at ease 9:59:46 AM                                                                                               
There being no further business to come before the committee,                                                                   
Chair Seekins adjourned the meeting at 10:00:36 AM.                                                                           

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