04/25/2001 01:24 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 25, 2001
1:24 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 157
"An Act relating to trust companies and providers of fiduciary
services; amending Rules 6 and 12, Alaska Rules of Civil
Procedure, Rule 40, Alaska Rules of Criminal Procedure, and
Rules 204, 403, 502, 602, and 611, Alaska Rules of Appellate
Procedure; and providing for an effective date."
- MOVED CSHB 157(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 126
"An Act relating to removal of members of the board of trustees
of the Alaska Permanent Fund Corporation; and providing for an
effective date."
- MOVED HB 126 OUT OF COMMITTEE
HOUSE BILL NO. 243
"An Act relating to sexual assault or abuse of a minor."
- HEARD AND HELD
CS FOR SENATE BILL NO. 19(HES)
"An Act relating to federal child support enforcement
requirements regarding social security number information,
employer reports about employees, and certain kinds of automated
data matching with financial institutions; repealing the
termination date of changes made by ch. 87, SLA 1997, and ch.
132, SLA 1998, regarding child support enforcement and related
programs; repealing the nonseverability provision of ch. 132,
SLA 1998; repealing uncodified laws relating to ch. 87, SLA
1997, and ch. 132, SLA 1998; and providing for an effective
date."
- MOVED HCS CSSB 19(HES) OUT OF COMMITTEE
HOUSE CONCURRENT RESOLUTION NO. 10
Suspending Rules 24(c), 35, 41(b), and 42(e), Uniform Rules of
the Alaska State Legislature, concerning Senate Bill No. 19,
relating to certain federal child support enforcement
requirements, so that the phrase "relating to child support
payments" may be added to the bill's title.
- MOVED HCR 10 OUT OF COMMITTEE
HOUSE BILL NO. 247
"An Act relating to the detention of delinquent minors and to
temporary detention hearings; amending Rule 12, Alaska
Delinquency Rules; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
SENATE BILL NO. 166
"An Act relating to the time of filling by appointment a vacancy
in the office of United States senator."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 157
SHORT TITLE:TRUST COMPANIES & FIDUCIARIES
SPONSOR(S): REPRESENTATIVE(S)MURKOWSKI
Jrn-Date Jrn-Page Action
02/28/01 0463 (H) READ THE FIRST TIME -
REFERRALS
02/28/01 0463 (H) L&C, JUD
03/28/01 (H) L&C AT 3:15 PM CAPITOL 17
03/28/01 (H) Heard & Held
03/28/01 (H) MINUTE(L&C)
04/18/01 (H) L&C AT 3:15 PM CAPITOL 17
04/18/01 (H) Bill Postponed
04/19/01 (H) L&C AT 3:15 PM CAPITOL 17
04/19/01 (H) Moved CSHB 157(L&C) Out of
Committee
04/19/01 (H) MINUTE(L&C)
04/20/01 1089 (H) L&C RPT CS(L&C) NT 2DP 3NR
04/20/01 1089 (H) DP: ROKEBERG, MURKOWSKI; NR:
HALCRO,
04/20/01 1089 (H) CRAWFORD, MEYER
04/20/01 1090 (H) FN1: ZERO(CED)
04/25/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 126
SHORT TITLE:REMOVAL OF MEMBERS OF THE PF BOARD
SPONSOR(S): RLS BY REQUEST OF LEG BUDGET & AUDIT
Jrn-Date Jrn-Page Action
02/14/01 0317 (H) READ THE FIRST TIME -
REFERRALS
02/14/01 0317 (H) JUD, FIN
04/25/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 243
SHORT TITLE:VERIFY AGE REQD FOR DEFENSE IN SEX CRIMES
SPONSOR(S): REPRESENTATIVE(S)DYSON
Jrn-Date Jrn-Page Action
04/10/01 0930 (H) READ THE FIRST TIME -
REFERRALS
04/10/01 0930 (H) JUD
04/10/01 0930 (H) REFERRED TO JUDICIARY
04/25/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 19
SHORT TITLE:CHILD SUPPORT ENFORCEMENT/SOC SEC.#
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/09/01 0028 (S) READ THE FIRST TIME -
REFERRALS
01/09/01 0028 (S) RES, HES, FIN
01/09/01 0028 (S) FN1: ZERO(REV)
01/09/01 0028 (S) GOVERNOR'S TRANSMITTAL LETTER
01/24/01 (S) RES AT 3:30 PM BUTROVICH 205
01/24/01 (S) Moved CSSB 19(RES) Out of
Committee
01/24/01 (S) MINUTE(RES)
01/25/01 0168 (S) RES RPT CS 5DP 1NR NEW TITLE
01/25/01 0169 (S) DP: TORGERSON, PEARCE,
LINCOLN, TAYLOR,
01/25/01 0169 (S) KELLY; NR: ELTON
01/25/01 0169 (S) FN1: ZERO(REV)
01/29/01 (S) HES AT 1:30 PM BUTROVICH 205
01/29/01 (S) Heard & Held
01/29/01 (S) MINUTE(HES)
02/05/01 (S) HES AT 1:30 PM BUTROVICH 205
02/05/01 (S) Moved CS(HES) Out of
Committee
02/05/01 (S) MINUTE(HES)
02/06/01 0287 (S) HES RPT CS 3DP 2NR NEW TITLE
02/06/01 0288 (S) DP: GREEN, LEMAN, DAVIS;
02/06/01 0288 (S) NR: WARD, WILKEN
02/06/01 0288 (S) FN1: ZERO(REV)
02/14/01 (S) FIN AT 9:00 AM SENATE FINANCE
532
02/14/01 (S) Heard & Held
02/14/01 (S) MINUTE(FIN)
02/15/01 0385 (S) FIN RPT CS(HES) 8DP
02/15/01 0385 (S) DP: KELLY, DONLEY, AUSTERMAN,
HOFFMAN,
02/15/01 0385 (S) OLSON, WILKEN, WARD, LEMAN
02/15/01 0385 (S) FN2: ZERO(REV)
02/15/01 (S) FIN AT 9:00 AM SENATE FINANCE
532
02/15/01 (S) Moved Out of Committee
02/15/01 (S) MINUTE(FIN)
02/20/01 (S) RLS AT 10:45 AM FAHRENKAMP
203
02/22/01 0470 (S) RULES TO CALENDAR 2/22/01
02/22/01 0478 (S) READ THE SECOND TIME
02/22/01 0478 (S) HES CS ADOPTED UNAN CONSENT
02/22/01 0479 (S) ADVANCED TO THIRD READING
UNAN CONSENT
02/22/01 0479 (S) READ THE THIRD TIME CSSB
19(HES)
02/22/01 0479 (S) PASSED Y14 N4 E2
02/22/01 0479 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
02/22/01 0479 (S) TAYLOR NOTICE OF
RECONSIDERATION
02/22/01 (S) RLS AT 10:45 AM FAHRENKAMP
203
02/22/01 (S) MINUTE(RLS)
02/26/01 0508 (S) RECONSIDERATION NOT TAKEN UP
02/26/01 0508 (S) TRANSMITTED TO (H)
02/26/01 0508 (S) VERSION: CSSB 19(HES)
02/28/01 0451 (H) READ THE FIRST TIME -
REFERRALS
02/28/01 0451 (H) HES, JUD, FIN
03/22/01 (H) HES AT 3:00 PM CAPITOL 106
03/22/01 (H) Moved HCS SB 19(HES) Out of
Committee
03/22/01 (H) MINUTE(HES)
03/23/01 0703 (H) HES RPT HCS(HES) NT 2DP 3NR
2AM
03/23/01 0703 (H) TITLE CHANGE: HCR 10
03/23/01 0703 (H) DP: WILSON, DYSON; NR:
COGHILL, JOULE,
03/23/01 0703 (H) STEVENS; AM: KOHRING, CISSNA
03/23/01 0704 (H) FN2: ZERO(REV)
04/25/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HCR 10
SHORT TITLE:SUSPEND UNIFORM RULES FOR SB 19
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES
Jrn-Date Jrn-Page Action
03/26/01 0727 (H) READ THE FIRST TIME -
REFERRALS
03/26/01 0727 (H) JUD, FIN
04/25/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE LISA MURKOWSKI
Alaska State Legislature
Capitol Building, Room 408
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 157.
TERRY LUTZ, Chief Financial Institution Examiner
Central Office
Division of Banking, Securities & Corporations (DBSC)
Department of Community & Economic Development (DCED)
PO Box 110807
Juneau, Alaska 99811-0807
POSITION STATEMENT: Assisted with the presentation of HB 157
and answered questions.
ROBERT D. STORER, Executive Director
Alaska Permanent Fund Corporation (APFC)
Department of Revenue (DOR)
PO Box 25500
Juneau, Alaska 99802-5500
POSITION STATEMENT: Presented HB 126 and answered questions.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 243.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Assisted with the presentation of HB 243
and answered questions.
BARBARA MIKLOS, Director
Central Office
Child Support Enforcement Division (CSED)
Department of Revenue (DOR)
550 West 7th Avenue, Suite 310
Anchorage, Alaska 99501
POSITION STATEMENT: Presented SB 19 on behalf of the
administration.
JULIA LOUISE TENNISON (ph)
(no address provided)
Chugiak, Alaska 99567
POSITION STATEMENT: During discussion of SB 19, recounted
difficulties that she has experienced because of the federal
requirements regarding social security number disclosure.
ACTION NARRATIVE
TAPE 01-74, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:24 p.m. Representatives
Rokeberg, James, Coghill, and Meyer were present at the call to
order. Representatives Berkowitz and Kookesh arrived as the
meeting was in progress.
HB 157 - TRUST COMPANIES & FIDUCIARIES
Number 0073
CHAIR ROKEBERG announced that the first order of business would
be HOUSE BILL NO. 157, "An Act relating to trust companies and
providers of fiduciary services; amending Rules 6 and 12, Alaska
Rules of Civil Procedure, Rule 40, Alaska Rules of Criminal
Procedure, and Rules 204, 403, 502, 602, and 611, Alaska Rules
of Appellate Procedure; and providing for an effective date."
[Before the committee was CSHB 157(L&C).]
Number 0078
REPRESENTATIVE LISA MURKOWSKI, Alaska State Legislature,
sponsor, noted that the [statutes related to trust companies]
have been around since 1949 and have remained practically
unchanged since then. She suggested that it is time to update
these statutes, which she referred to [informally] as the "Trust
Company Act." Via HB 157, regulations pertaining to trust
companies will be put into place; up to this point in time, the
[Division of Banking, Securities & Corporations (DBSC)] has been
regulating Alaska's few trust companies by referencing the
statutes that pertain to banking. She remarked that she and the
DBSC have been working together on this legislation since her
first term of office, and now the DBSC, the banking industry,
and all other persons who have looked at HB 157 are comfortable
with it. In conclusion, HB 157 will simply provide a regulatory
process for the trust companies already in Alaska, and companies
that are being encouraged to come to Alaska.
CHAIR ROKEBERG, after noting that there are two proposed
amendments, asked the sponsor whether she has objections to
either.
REPRESENTATIVE MURKOWSKI said she does not.
Number 0336
TERRY LUTZ, Chief Financial Institution Examiner, Central
Office, Division of Banking, Securities & Corporations (DBSC),
Department of Community & Economic Development (DCED), said that
he thinks HB 157 is an important bill and is badly needed.
REPRESENTATIVE COGHILL asked whether there would be "any major
earthquakes within the industry as a result of defining all of
these responsibilities."
MR. LUTZ said, "We really don't know; we've put out as much
information as we could, and [gotten] as may comments as we
could .... One can only guess what might come out of the
woodwork." He opined that HB 157 is a good product and would
not be "stepping on any toes."
REPRESENTATIVE MURKOWSKI added that those who work with trust
companies have been involved with the DBSC every step of the
way; therefore, she opined, no one is anticipating any great
shakeups.
CHAIR ROKEBERG also affirmed that those in the legal community
who work on trusts have been intimately involved in developing
HB 157.
REPRESENTATIVE COGHILL asked whether HB 157 puts a higher
barrier on entrepreneurs who might want to enter this industry.
MR. LUTZ opined that HB 157 would make the process of entering
the industry easier. Although the "numbers are higher for
capital standards," he noted, the director can adjust "the
capital."
Number 0611
CHAIR ROKEBERG closed the public testimony on HB 157. He then
asked for an explanation of Amendment 1 [22-LS0139\O.1,
Bannister, 4/25/01], which read:
Page 3, following line 27:
Insert a new paragraph to read:
"(6) handles escrow transactions and is a
title insurance company that has a certificate of
authority issued under AS 21.09, a title insurance
limited producer that is licensed as required by
AS 21.66.270, or an employee of the title insurance
company or title insurance producer when acting in the
scope of the employee's employment; in this paragraph,
(A) "escrow transaction" has the meaning
given in AS 34.80.090;
(B) "title insurance company" has the
meaning given in AS 21.66.480;
(C) "title insurance limited producer" has
the meaning given in AS 21.66.480;"
Renumber the following paragraphs accordingly.
Page 5, line 5:
Delete "(a)(1) or (8)"
Insert "(a)(1) or (9)"
REPRESENTATIVE MURKOWSKI explained that Amendment 1 would
clarify how title insurance companies fit into HB 157.
CHAIR ROKEBERG noted that this new subsection (6) "just refers
to title insurance companies and the escrow transactions
relating to those." He added that current statute makes a
distinction between escrow agents and title companies acting as
escrow agents.
Number 0708
CHAIR ROKEBERG made a motion to adopt Amendment 1. There being
no objection, Amendment 1 was adopted.
Number 0722
CHAIR ROKEBERG referred to Conceptual Amendment 2, which read
[original punctuation provided]:
Page 5, Line 2, after "settlors"
Delete ";"
Insert: "."
Page 5, Line 2, after "settlors"
Insert: "However, the limitation on the number of
settlors listed above may be changed by the Dept by
regulation or order in accordance with (b), of this
section."
Page 5, Line2
Delete: "in"
Insert: "In"
Page 5, Line 5, after "(8)"
Insert: or (17)
CHAIR ROKEBERG noted that Conceptual Amendment 2 allows the DCED
flexibility when it is appropriate in a particular situation to
have more than ten settlors.
Number 0779
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 2.
There being no objection, Conceptual Amendment 2 was adopted.
REPRESENTATIVE BERKOWITZ asked whether HB 157 is based on model
legislation.
MR. LUTZ explained that the DBSC used a combination of the model
act provided by the Conference of State Bank Supervisors (CSBS),
and trust acts in place in 15-20 other states. He noted that he
has not encountered any strenuous objections to HB 157. Over
the years, he explained, there have been a lot of questions and
amendments to the legislation, but the entities involved have
indicated that they are now comfortable with the result.
Number 0907
REPRESENTATIVE MEYER moved to report CSHB 157(L&C), as amended,
out of committee with individual recommendations and the
accompanying fiscal note. There being no objection, CSHB
157(JUD) was reported from the House Judiciary Standing
Committee.
HB 126 - REMOVAL OF MEMBERS OF THE PF BOARD
Number 0941
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 126, "An Act relating to removal of members of
the board of trustees of the Alaska Permanent Fund Corporation;
and providing for an effective date."
Number 0967
ROBERT D. STORER, Executive Director, Alaska Permanent Fund
Corporation (APFC), Department of Revenue (DOR), explained that
HB 126 inserts into statute the provision that public members of
the board of trustees of the APFC may only be removed for cause.
The board of trustees consists of six members: Two members are
commissioners and the other four are public members appointed by
the governor to serve for four-year staggered terms. What the
APFC is asking for is language consistent with that of 19 other
boards and commissions, including the State Pension Investment
Board, which oversees the management of the assets of the
retirement system.
MR. STORER noted that it takes some time for a board member to
be educated and understand the role of managing large
institutional assets. He explained that although HB 126 does
not give tenure and replacement of board members is still
allowed, HB 126 would ensure that there is continuity of board
members and that institutional memory would be passed on for the
benefit of all board members. Investment management of large
funds is becoming more and more sophisticated, he said, and the
APFC, for example, can take over a year to study an issue before
acting upon it.
CHAIR ROKEBERG requested that a list of the aforementioned 19
other boards be added to members' packets. He asked why the
primary tenet is for corporate boards of directors to have
staggered terms.
MR. STORER reiterated that it is to provide continuity of
management, be it a public fund or "Corporate America", so that
the institutional memory of how decisions are made is
perpetuated.
REPRESENTATIVE JAMES said she is pleased to see HB 126 before
the committee; she noted that it is similar to legislation she
had sponsored in the past but which was vetoed by the governor.
She said she agrees wholeheartedly that the APFC board of
trustees needs continuity and that members should not be removed
on a political whim. She opined that because it handles huge
sums of money on behalf of the state, the APFC board of trustees
is the most important board that Alaska has.
Number 1010
MR. STORER, in response to questions, explained that there had
never been a board member replaced at the APFC until the Hickel
Administration took office; either a board member resigned or
his/her term expired. The Hickel Administration replaced five
of the six board members, leaving the chair in place. This
person remained in place until Governor Knowles was elected, at
which time, again, five of the six board members were replaced,
keeping the same chair. When this person's term expired, the
current chair filled the vacancy. Mr. Storer noted that each
time these replacements took place, the incoming board members
had to be educated "from scratch." He added that in neither
instance had there been a problem with the performance of the
board.
REPRESENTATIVE JAMES observed that during the entire history of
the APFC, there has not been one single appointment to the board
that she has objected to; all of the candidates have been
excellent choices. In conclusion, she said that she did not see
any need for appointees to the APFC board of trustees to list
what political party they belong to; the duties of the board
have nothing to do with politics.
CHAIR ROKEBERG recognized the presence of members from the APFC
and board of trustee member, Clark Gruening, whom the chair
thanked for his service. Chair Rokeberg closed the public
hearing on HB 126.
Number 1429
REPRESENTATIVE JAMES moved to report HB 126 out of committee
with individual recommendations and the accompanying zero fiscal
notes. There being no objection, HB 126 was reported from the
House Judiciary Standing Committee.
HB 243 - VERIFY AGE REQD FOR DEFENSE IN SEX CRIMES
Number 1460
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 243, "An Act relating to sexual assault or
abuse of a minor."
Number 1477
REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor,
remarked that he considers it offensive and opportunistic for
someone who molests a minor to claim that [he/she believed] the
minor was of age. He opined that most such defenses are
patently invented. He explained that HB 243 adds language which
states that if a perpetrator is going to use that claim as a
defense, he/she will have had to have done something to verify
the age of the minor, such as viewing a government-issued ID
card, speaking with a parent who says that the child is of age,
or something along those lines.
Number 1552
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), explained that the legislature has declared that having
sexual relations with persons under the age of 16 is against the
law and it is an even more serious offense if that person is
under the age of 13. At the same time, however, it is
recognized in statute - and, according to the Alaska Supreme
Court, under the Alaska State Constitution as well - that
defendants can try to convince the jury that they honestly and
reasonably believed that the victim was over the age of sixteen.
MR. GUANELI noted that it didn't used to be this way. In law
school, one of the first things students learn about criminal
law is how to allocate mental states and burdens of proof. He
said that some of the kinds of cases discussed when he attended
law school were statutory rape cases, with the question being
did the state have to prove that the defendant knew that the
[youth] was of a certain age. Generally, he said, the answer
was no; "you run the risk, when you have sex with people who
look young, that they turn out to be [too] young." Over the
years, however, things have changed, and the Alaska Supreme
Court now holds the position that the defendant may try to
convince the jury that he/she honestly and reasonably believed
that the victim was over 16.
MR. GUANELI pointed out that in 1994, the Alaska Court of
Appeals determined that the legislature has the ability to set
some parameters on such a defense, for example, by requiring
that the defendant did everything reasonably possible to
ascertain the age of his/her sexual partner. He recounted that
a couple of common statements used as a defense regarding a
mistake as to age are: "She told me that she was over 16." and,
"Her friends told me that she was over 16." Mr. Guaneli
mentioned a specific case in which the defendant said that the
girl, who later turned out to be 14, had told him on the
Internet that she was in college. With regard to using such a
defense, a recent Alaska Court of Appeals decision [State v.
Fremgen] said that even if the victim is under the age of 13,
the defendant could still try to prove that he/she believed the
victim was much older. In this case, Mr. Guaneli noted, the
defendant claimed that the girl had told him that she had had
many sexual partners and had told him about sexual acts she had
performed, and because of these statements, he perceived her to
be old enough.
Number 1755
MR. GUANELI observed that in today's society, with exposure to
television (TV), movies, and music, young people are more
sophisticated than in the past and are more willing to use
obscene words and gestures. To allow someone to use this kind
of behavior by today's youth to build the defense that he/she
believed that a young person was over 16, makes a mockery of the
law; HB 243 is designed to counter such claims. In addition to
honestly and reasonably believing that the child was 16, HB 243
also requires that the defendant take some reasonable measures
to verify it, which could include checking a driver's license or
speaking with the child's parent. Mr. Guaneli recounted a case
in which a man had asked to see a young girl's driver's license
but when she couldn't produce one, he had sex with her anyway;
such behavior indicates that although some people do think about
how old someone with whom they intend to have sex is, they are
still specifically preying on someone who looks young and
vulnerable.
MR. GUANELI relayed that in Steve v. State, the Alaska Court of
Appeals said that while a person may not be able to tell exactly
how old someone is by looks alone, it is still possible to tell
that someone is a young teenager; accordingly, "it is fair to
expect people to exercise caution when choosing a youthful
sexual partner." He opined that HB 243 says that it is not
enough to listen to what the young person says or what his/her
friends say, or to assume that because of the child's gestures,
words, or manner of dress, that the young person is of the age
of consent.
REPRESENTATIVE MEYER asked whether requesting proof and being
shown an ID card that later proved to be fake would still be
adequate for an affirmative defense.
MR. GUANELI opined that it would be because the defendant made a
reasonable effort to ascertain the child's age. He added that
the same is true with regard to the sale of alcohol and tobacco.
REPRESENTATIVE MEYER noted that it is becoming easier to
manufacture fake ID cards.
Number 1963
REPRESENTATIVE DYSON explained that HB 243 would only come into
play when the perpetrator is using [a mistake as to age] as a
defense. "What we're trying to do is cut the ground out from
underneath exploitive older people who are abusing children and
trying to get off using this [defense]; they've got to use
reasonable care to ascertain that they are not committing a
crime." If word of this legislation spreads, and people start
being more responsible, he said, that would be wonderful. On
another point, he noted that 30-40 percent of the children in
Alaska who are being molested are male; on a national level,
that percentage may be higher.
REPRESENTATIVE JAMES mentioned that she did not believe that
only the older person should be reprimanded in some cases; "it
takes two to tango," she noted, and in some cases the young
people also play a part.
REPRESENTATIVE BERKOWITZ said he respectfully disagrees with the
assertion that HB 243 only comes into play when the defendant
uses the defense [of a mistake as to age]; it comes into play
every time lawful participants "get together." He suggested
that what the sponsor is essentially saying, via HB 243, is that
"in order to have sex, people have to ask for their papers
first"; even where it's lawful and consensual, the situation is
still one of compelling honest citizens to ask for each other's
papers. He opined that putting people in a position of
requiring individuals to [show their papers] is a step away from
the kind of free society that he supports.
REPRESENTATIVE BERKOWITZ, on another point of concern, noted
that HB 243 says, "reasonable measures does not include mere
statements by the victim or the victim's friends". In essence,
he opined, HB 243 is saying that the judgment of the legislature
supplants the judgment of the jury; "we're taking away
discretion from the jury," and doing so does damage to the
current legal system.
REPRESENTATIVE DYSON noted that, "we're talking about 15 years
old and younger." He offered that there is long tradition in
the western democracies that children below the age of majority
are unable to make major decisions on their own behalf. Society
does not want children making major decisions on their own; the
child's parents should be making the major decisions. "We do
that with medical care and we do that with alcohol and tobacco,"
he added. If Representative Berkowitz's argument is to be
consistent, he suggested, then "kids ought to be able to make
the decisions about alcohol and tobacco without [age] being
verified."
Number 2153
MR. GUANELI pointed out that in some cases in which the defense
of a mistake as to age is being used, the victims are as young
as 12; notwithstanding whether someone consented to the act,
different rules should apply for a person who is 12, 13, 14, or
15. Alaska statutes already include a three-year range, he
noted, so the provisions of HB 243 will not generally pertain to
the "high school relationships" that often occur, as long as a
person is within three years of age of the other person. He
opined that HB 243 does not affect the jury's deliberations; it
only affects the kinds of excuses that offenders can bring
before juries, which, according to the Alaska Court of Appeals,
is perfectly within the constitutional prerogative of the
legislature. It is a policy judgment, he added.
MR. GUANELI, in response to the question of why reference to
victims under the age of 13 is being stricken via HB 243,
reiterated that the recent court of appeals decision in State v.
Fremgen said that even if the victim is under the age of 13, the
defendant could still try to prove that he/she believed the
victim was much older. Thus, striking the reference to victims
under the age of 13 merely reflects that decision. He noted
that he did not know the final outcome of that case with regard
to whether the defendant has been found guilty.
REPRESENTATIVE BERKOWITZ opined that adding "and (2) undertook
reasonable measures to verify that the victim was that age or
older" doesn't seem to change the current statute much at all
given that it already says, "the defendant reasonably believed
the victim to be that age or older", because this "reasonable
belief" is arrived at in part by looking at the young person.
CHAIR ROKEBERG noted that one change it makes is to allow an
affirmative defense for sexual intercourse with a young person
if the parent verifies the child's age.
REPRESENTATIVE BERKOWITZ pointed out that:
You don't just talk with someone and then have
[sexual] contact with them. These statements are
going to be in the context of physical presence. "So
I ask this girl if she was old enough and she said she
was, and while I was looking at her, she appeared to
be [old enough]"; so therefore the statement that
"reasonable measures" does not include mere
statements' doesn't really lend much to the debate,
because it's not a mere statement. It's a statement
in conjunction with the victim's appearance, or the
other circumstances. So, that "reasonable measures"
section here doesn't really change the status quo.
Number 2397
REPRESENTATIVE JAMES recalled that two of her foster children -
one, a girl of 14, the other, a girl of 13 - had been sexually
active since the ages of 11 or 12, and both looked to be at
least 16 years old. She said she maintains the position that it
isn't "just the guy's fault."
CHAIR ROKEBERG, in opposition to Representative Berkowitz's
suggestion that HB 243 does nothing, said he thinks that because
paragraphs (1) and (2) are conjunctive due to the addition of ";
and", it requires that an action be taken by the defendant to
verify the victim's age.
REPRESENTATIVE BERKOWITZ countered that since the existing
statute says, "the defendant reasonably believed the victim to
be that age or older" and HB 243 adds "; and (2) undertook
reasonable measures to verify that the victim was that age or
older", in order to reasonably believe something, clearly, a
person must have already undertaken reasonable measures to
verify it.
CHAIR ROKEBERG remarked that having a belief does not presuppose
having undertaken a step to support that belief.
REPRESENTATIVE BERKOWITZ argued, "How could you form a
reasonable belief if you hadn't undertaken reasonable measures?"
CHAIR ROKEBERG noted that because of the way young girls behave
and dress in this day and age, these outward manifestations
could lead to the formation of such a belief. He mentioned that
perhaps the legislature should review the age levels listed in
all of Alaska's sex crime statutes.
TAPE 01-74, SIDE B
Number 2480
REPRESENTATIVE BERKOWITZ said that if reasonable belief is
conditioned on reasonable measures, then these should include
checking ID as well as a whole other universe of things that are
not listed HB 243. He noted that he has already established
that although HB 243 is excluding mere statements, "you don't
have a mere statement in conjunction with having physical
intercourse with somebody; rather, you're having a mere
statement in conjunction with the other person being present."
REPRESENTATIVE KOOKESH expressed disbelief that this legislation
is even being discussed because, according to the written
sponsor statement, "HB 243 will force sexual predators who prey
upon minors to go through a similar process" of checking ID. By
the very fact that they're a sexual predator, he argued, "what
makes you think they're going to follow the law and check an
ID?" With regard to a sexual predator taking reasonable
measures, he pointed out that those people are already breaking
one aspect of the law anyway, so it is unreasonable to expect
them to follow some other part of the law. "It just doesn't
make any sense to me," he stated; "we're putting a lot of faith
in a person who is already described as a sexual predator, and
we expect him to follow the law to ask for ID?"
CHAIR ROKEBERG said that he agrees with Representative Kookesh
on that point, but he also pointed out that in current statutes
regarding sexual assault and sexual abuse, there is a whole
litany of different levels of crime as well as a number of "age
hurdles and separations." There are multiple "statutory rape
statutes" in Alaska, he noted. He then suggested that HB 243
could only be used to entrap somebody who had not taken steps to
verify a younger partner's age in a consensual sexual situation.
He asked whether this is the intent of HB 243.
REPRESENTATIVE DYSON said his intention is to "undercut the guys
who are breaking the law who use this as a defense. Just to
say, 'He (or she) said they were of age, and boy, Judge, I sure
believed it,' I want to force them to go the next step."
REPRESENTATIVE JAMES asked which folks the sponsor intends this
legislation to affect: Is it the 25-year-old who has sex with a
13-year-old, or is it the 18-year-old who has consensual sex
with a 13- to 14-year-old? She also asked how many people "get
off" by using a defense of mistaken age; how big is the problem
HB 243 purports to fix?
REPRESENTATIVE DYSON said that he is interested in addressing
the problem of people who engage in sexual relationships with
children who are more than three years younger than themselves -
those people who are significantly older than the youth they
prey on. He recounted that while growing up, everybody knew not
to mess around with "San Quentin Quail." He stated that in
Canada, at least up until he reached the age of 30, the penalty
was capital punishment. This sent an incredibly restraining
message; it was not just a "hand slap." He said he hopes to
send the message, via HB 243, that it is dangerous in Alaska to
take sexual advantage of young children.
Number 2124
REPRESENTATIVE JAMES opined that the best way to "fix that
problem" would be to remove paragraph (1); in this way, everyone
who is over 21 and has sex with somebody that's under 16 would
be "done" - no excuses.
CHAIR ROKEBERG suggested that having de facto statutory rape
laws are no longer sufficient; perhaps it is time to do
something to get the message out to young people that statutory
rape is against the law.
REPRESENTATIVE BERKOWITZ opined that they should first have some
empirical evidence before coming to that conclusion.
REPRESENTATIVE JAMES mentioned that she "would like to have more
than [a charge of] promiscuity for some of these girls who go
out there and do this."
MR. GUANELI, on the question of how often the defense of a
mistake as to age comes into play, said it probably arises in
perhaps a couple of dozen cases a year. He added that he is
unable to say how often it is used successfully. The danger
created by the current law, he opined, is revealed in the
Fremgen case in which the defendant, as part of his defense, was
allowed to tell the jury how the victim had described to him all
the various sexual acts that she had performed with various
partners, and which he claimed lead him to believe that she was
old enough; such a defense paints a picture in the minds of the
jurors of someone who is promiscuous and who doesn't deserve
society's protection.
MR. GUANELI noted that HB 243 is not drafted to say that only
checking ID or asking the parents would be acceptable reasonable
measures to verify someone's age, other steps might also be
acceptable but are simply not listed specifically. He said he
agreed with Chair Rokeberg that "; and" is conjunctive and means
that a defendant has to take another step beyond "reasonably
believed". It is too easy to simply say, "She was dressed that
way"; such a statement tends to prejudice the jury against
someone whom current law has declared is the victim.
Number 1963
MR. GUANELI, in response to the question regarding what HB 243
does, said:
The defendant is going to have to say, "I honestly
believed that she was 16 or 17," which is all the
current law requires. And, in addition to that, is
going to have to prove that some other measures were
taken to verify that belief. So, ... the defendant
may be able to say, "Well she looked older and I
believed it, but I didn't stop at that, I did
something to verify it." If the defendant can't do
that, if the defendant can't show that to the judge at
the beginning, then the judge will say, "You can't
present this to the jury at all." ... The judge has
got to make some additional threshold determinations
of whether or not this defense is even available,
whether there is even any evidence that the defendant
can raise. If the defendant has done absolutely
nothing, has just looked at the girl and based on his
subjective view of what looks 16 and what doesn't,
that's not going to be enough. Something more has to
be done; ... I think that's the thrust of this.
REPRESENTATIVE BERKOWITZ noted that current statute doesn't say
"honest belief", it says "reasonable belief", and the new
language says "reasonable measures", that is, the stuff that
makes up a reasonable belief. He posited that, "You can't get
to 'reasonable belief' without undertaking 'reasonable
measures', but 'reasonable belief' doesn't mean mere statements,
and you're never going to have mere statements; it's going to be
in a context." He requested that someone tell him, succinctly,
whether HB 243 "changes anything that isn't already there."
MR. GUANELI responded:
There is a [paragraph] (1) and a [paragraph] (2), and
in between the (1) and the (2) there is an "and"; ...
the courts generally interpret separately numbered
provisions to mean something different. ... I believe
... they are going to interpret this as requiring
something additional as a means of verification.
Number 1829
REPRESENTATIVE BERKOWITZ countered: "But when (1) equals (2) -
when (1) and (2) are the same - then you're really not adding
anything."
REPRESENTATIVE JAMES suggested amending paragraph (2) to say
only "undertook reasonable measures to verify that the victim
was that age or older", and then delete the remainder. She
opined that in this way, paragraph (2) would not restrict what
could be done to verify a person's age.
REPRESENTATIVE DYSON mentioned that people who sell alcohol and
tobacco are making judgment calls based on "reasonable belief"
when they decide which patrons to "card."
CHAIR ROKEBERG pointed out that a vendor is different than a
sexual predator. To expand on Representative James' point, he
noted that putting too many "sideboards" on what can be used as
an affirmative defense runs the risk of being found
unconstitutional. He suggested amending paragraphs (1) and (2)
to read "(1) reasonably believed the victim to be that age or
older; and (2) does not include mere statements by the victim or
the victim's friends that the victim is that age or older".
Upon further consideration, he opined that HB 243 is
unconstitutional.
MR. GUANELI noted that the Fremgen case is the impetus for
deleting the very last clause of paragraph (2) pertaining to
victims under the age of 13; the age of the victim can no longer
restrict the use of a mistake as to age as an affirmative
defense. He added, however, that the Steve case affirms that
the legislature can require that the defendant did everything
reasonably possible to verify the victim's age if using such a
defense. He opined that this is what HB 243 does, and that it
is constitutional.
REPRESENTATIVE BERKOWITZ noted that procedurally, the Alaska
Court of Appeals affirmed the trial court's decision in the
Fremgen case to allow the defendant to raise the defense of a
mistake as to age, regardless of the victim's age. He explained
that there are two components to a criminal act: a guilty mind
and a guilty act; there has to be some kind of criminal intent.
In the Guest case, he noted, the court said, "We believe that
the charge of statutory rape is legally unsupportable ... unless
a defense of reasonable mistake of age is allowed. To refuse
such a defense would be to impose criminal liability without any
criminal mental element."
CHAIR ROKEBERG suggested that the sponsor "tune this thing up."
He opined that although the sponsor is on the "right track," the
committee has to make sure that the legislation could "pass
constitutional muster."
[HB 243 was held over.]
SB 19 - CHILD SUPPORT ENFORCEMENT/SOC SEC.#
Number 1491
CHAIR ROKEBERG announced that the next order of business would
be CS FOR SENATE BILL NO. 19(HES), "An Act relating to federal
child support enforcement requirements regarding social security
number information, employer reports about employees, and
certain kinds of automated data matching with financial
institutions; repealing the termination date of changes made by
ch. 87, SLA 1997, and ch. 132, SLA 1998, regarding child support
enforcement and related programs; repealing the nonseverability
provision of ch. 132, SLA 1998; repealing uncodified laws
relating to ch. 87, SLA 1997, and ch. 132, SLA 1998; and
providing for an effective date." [Before the committee was HCS
CSSB 19(HES).]
Number 1460
BARBARA MIKLOS, Director, Central Office, Child Support
Enforcement Division (CSED), Department of Revenue (DOR),
explained that in 1996, congress passed welfare reform with the
intention of making people self-sufficient and not dependent on
public money. One important aspect of helping families maintain
self-sufficiency is child support, and to this end, congress
added requirements that states pass laws to help child support
programs collect child support as well as facilitate child
support collection between states. The Alaska State Legislature
passed legislation in 1996, 1997, and 1998 that met the
requirements imposed by congress in the welfare reform
legislation. In fiscal year (FY) 1999 the CSED collected and
distributed $81 million in child support, in FY 2000 $85 million
was collected and distributed, and in FY 2001 the CSED is
expecting to collect and distribute $91 million. The CSED
believes that the tools it was given have helped increase child
support collections and disbursements.
MS. MIKLOS noted that legislation passed in 1997 and 1998 was to
be "sunsetted" this year for the purpose of revisiting the
issues involved. She opined that CSED is doing much better than
it was three years ago in terms of the Alaskan public; although
there are still some problems and issues to be resolved,
complaints of the CSED have dramatically decreased. She
explained that it is very important to pass SB 19 this year
because it will help the CSED maintain some very effective
programs, and also because congress will impose financial
penalties on Alaska by withholding federal child support funding
(approximately $15 million) and funding for the public
assistance program (approximately $55 million) if such
legislation is not enacted.
MS. MIKLOS noted that SB 19 started out as a couple of
paragraphs simply authorizing sunsets to be repealed. She
explained that one of the changes made to the bill as it made
its way through the process was to remove all references to
collecting social security numbers from hunting and fishing
licenses. This change was made possible because the CSED
applied for and received a waiver from the federal government
exempting Alaska from the requirement of collecting social
security numbers from those documents. Another change involved
placing five-year sunsets on provisions requiring the exchange
of social security numbers and provisions requiring social
security numbers on various applications such as occupational
licenses and driver's licenses. Another five-year sunset was
placed on a financial data match program, which provides for an
automated match between the CSED and various financial
institutions for collections purposes.
Number 1198
MS. MIKLOS said that in starting out, SB 19 was intended to only
address welfare reform and its requirements. During the
process, however, a couple of provisions have been added on,
both with the agreement of the CSED. One provision - Section 11
- states that violation of AS 25.27.075(a), which requires
employers to report personnel information to the CSED, would not
give rise to a private cause of action. Another provision -
Section 12 - although unrelated to welfare reform, added
language to ensure that any child support payments received
during the last five business days of the prior month because of
the payroll cycle would be credited to the next calendar month
as intended by the obligor.
MS. MIKLOS explained that Sections 1-10, 13, 14, and 17 relate
to the new sunset requirements. Section 15 repeals all sunsets;
Section 16 says that all those sections that are repealed and
don't come back are repealed immediately; and Section 17 says
that July 1, 2003, is the new sunset date for all sections that
continue to have a sunset. She noted that since the CSED
already believes that the most important thing it should do with
social security numbers is hold them sacred and ensure that they
are not misused, it would prefer to have a longer sunset period;
she added that the CSED is very vigilant and sends out monthly
messages to all its employees reminding them of their
responsibility to hold certain information, including social
security numbers, confidential. She said that the CSED would
rather have the opportunity to focus on those kinds of programs
and safeguards as opposed to spending the resources to come back
before the legislature and debate the social security number
issue.
MS. MIKLOS, in response to questions, explained that the
effective date of 2003 in Section 17 pertains to sections of SB
19 that remove the social security number requirements from
existing law. This means that those requirements will remain in
effect until July 1, 2003. She noted, however, that the CSED's
preference would be to leave the social security number
requirements in place until 2004, although removing any sunset
date from those requirements would be more preferable. As long
as there is a sunset date on the social security number
requirements, since the CSED is required by federal law to use
the social security numbers as referenced in the sections
contained in Section 17, it will also be required to come back
before the legislature to debate the issue. At the request of
Representative James, Ms. Miklos repeated her calculations
regarding how much child support money has been collected and
distributed by the CSED since 1999 and how much of a financial
penalty would imposed on Alaska for noncompliance of the federal
government's regulations.
REPRESENTATIVE COGHILL noted that he would prefer that [state
government] not collect any social security numbers, and he
mentioned that there is a national debate in congress on this
issue.
MS. MIKLOS, in response to a question, said that no federal
funds would be withheld by having the effective date of Section
17 remain July 1, 2003.
Number 0583
JULIA LOUISE TENNISON (ph), testified via teleconference. She
explained that she has experienced great difficulties because of
the federal requirement that she disclose her social security
number when renewing her Alaska driver's license. She recounted
the details of the legal processes that she has undertaken to
straighten out her situation. She noted that although the
Alaska Court of Appeals has not yet finished with her case, it
has waived the filing fee and has relayed to her that it
considers her case worthy of review.
MS TENNISON reminded the committee that when the legislature
passed the legislation requiring her to disclose her social
security number, it did so with the inclusion of a finding and
intent section that described the federal requirements as
"unreasonable and constitutionally questionable". The
legislation also included a nonseverability clause, which said
that if any part of the legislation is found to be
unconstitutional, then so is all of that legislation. She then
cited numerous constitutional and statutory points to back up
her argument that such federal requirements are
unconstitutional.
TAPE 01-75, SIDE A
Number 0001
MS. TENNISON said she did not understand why there is a
distinction being made between a person who has never been
issued a social security number and someone who was issued a
social security number but then had "gotten rid of" it. She
also noted that she did not completely understand the
ramifications of signing an affidavit to the effect that she has
never had a social security number issued to her.
CHAIR ROKEBERG suggested to Ms. Tennison that she also send her
testimony to Alaska's congressional delegation, since the social
security number disclosure requirements are federal mandates.
MS. TENNISON pointed out that there are no federal mandates
requiring anyone to disclose his/her social security number;
instead, mandates were placed on states to make statutory
changes enabling the collection of social security numbers in
order to continue receiving federal funds. She expressed
displeasure that the legislature sold everybody's freedom for
$70 million per year.
REPRESENTATIVE BERKOWITZ pointed out that the committee recently
passed legislation that will prevent people from being penalized
if they don't have a social security number to put on a driver's
license application.
REPRESENTATIVE COGHILL clarified that this pending legislation
has removed the requirement that a person who does not disclose
his/her social security number on a driver's license application
must fill out the aforementioned affidavit. He agreed with Ms.
Tennison that the legislature is responsible for the current
statutes regarding social security number disclosure.
MS. TENNISON concluded by asking why she should face the
possibility of being arrested simply for refusing to provide a
social security number on a driver's license application. She
suggested that the legislature should get rid of any such
statutory requirements because, she opined, they are
unconstitutional.
Number 0346
REPRESENTATIVE COGHILL moved to report HCS CSSB 19(HES) out of
committee with individual recommendations and the accompanying
fiscal note. There being no objection, HCS CSSB 19(HES) was
reported from House Judiciary Standing Committee.
HCR 10 - SUSPEND UNIFORM RULES FOR SB 19
Number 0369
CHAIR ROKEBERG announced that the last order of business would
be HOUSE CONCURRENT RESOLUTION NO. 10, Suspending Rules 24(c),
35, 41(b), and 42(e), Uniform Rules of the Alaska State
Legislature, concerning Senate Bill No. 19, relating to certain
federal child support enforcement requirements, so that the
phrase "relating to child support payments" may be added to the
bill's title.
Number 0402
REPRESENTATIVE COGHILL moved to report HCR 10 out of committee
with individual recommendations. There being no objection, HCR
10 was reported from the House Judiciary Standing Committee.
ADJOURNMENT
Number 453
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:04 p.m.
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