02/16/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB97 | |
| Department of Health & Social Services, Division of Juvenile Justice | |
| HB88 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 88 | TELECONFERENCED | |
| + | HB 97 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 16, 2005
1:15 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 97
"An Act relating to the authority to take oaths, affirmations,
and acknowledgments in the state, to notarizations, to
verifications, to acknowledgments, to fees for issuing
certificates with the seal of the state affixed, and to notaries
public; and providing for an effective date."
- MOVED CSHB 97(JUD) OUT OF COMMITTEE
OVERVIEW(S): DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION
OF JUVENILE JUSTICE
- HEARD
HOUSE BILL NO. 88
"An Act relating to certain weapons offenses involving minors;
to aggravating factors in sentencing for certain offenses
committed against a school employee; and providing for an
effective date."
- MOVED CSHB 88(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 97
SHORT TITLE: OATHS; NOTARIES PUBLIC; STATE SEAL
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) STA, JUD, FIN
01/26/05 (H) FN1: (GOV) - CORRECTED
02/03/05 (H) STA AT 8:00 AM CAPITOL 106
02/03/05 (H) Moved CSHB 97(STA) Out of Committee
02/03/05 (H) MINUTE(STA)
02/07/05 (H) STA RPT CS(STA) 6DP 1NR
02/07/05 (H) DP: LYNN, GATTO, ELKINS, GRUENBERG,
RAMRAS, SEATON;
02/07/05 (H) NR: GARDNER
02/16/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 88
SHORT TITLE: OFFENSES BY MINORS/AGAINST TEACHERS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/19/05 (H) READ THE FIRST TIME - REFERRALS
01/19/05 (H) JUD, FIN
01/26/05 (H) JUD AT 1:00 PM CAPITOL 120
01/26/05 (H) -- Meeting Canceled --
02/02/05 (H) JUD AT 1:00 PM CAPITOL 120
02/02/05 (H) <Bill Hearing Postponed to Fri. 2/4/05>
02/04/05 (H) JUD AT 1:00 PM CAPITOL 120
02/04/05 (H) -- Rescheduled from Wed. 2/2/05 --
02/07/05 (H) JUD AT 1:00 PM CAPITOL 120
02/07/05 (H) Heard & Held
02/07/05 (H) MINUTE(JUD)
02/16/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
BRIAN WESTAD, Intern
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Presented HB 97 on behalf of the
administration.
SCOTT CLARK, Notary Commission Administrator
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 97.
ANNETTE KREITZER, Chief of Staff
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 97.
PATTY WARE, Director
Division of Juvenile Justice (DJJ)
Department of Health & Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Presented the overview of the Department of
Health and Social Services' Division of Juvenile Justice.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
proposed amendments to HB 88.
LEONARD M. "BOB" LINTON, JR., District Attorney
Third Judicial District (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
proposed amendments to HB 88.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:15:28 PM. Representatives
McGuire, Coghill, Dahlstrom, Gruenberg, and Gara were present at
the call to order. Representatives Anderson and Kott arrived as
the meeting was in progress.
HB 97 - OATHS; NOTARIES PUBLIC; STATE SEAL
1:16:16 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 97, "An Act relating to the authority to take
oaths, affirmations, and acknowledgments in the state, to
notarizations, to verifications, to acknowledgments, to fees for
issuing certificates with the seal of the state affixed, and to
notaries public; and providing for an effective date." [Before
the committee was CSHB 97(STA).]
1:16:25 PM
BRIAN WESTAD, Intern, Office of the Lieutenant Governor, relayed
that HB 97 would make changes to Alaska's notary statutes, which
have not been updated since 1961. These changes have been
proposed by Alaska's notaries working together with the
Lieutenant Governor's office, and are outlined in a handout
titled, "Notary Statue Comparison - CSHB 98(STA)", which lists
the following categories: Qualifications, Term, Fees, Bond,
Commission Types, Commission Revocation, Notary Data, And Non-
Commissioned Notaries. With regard to qualifications, the bill
proposes to lower the minimum age requirement to 18 - one of the
reasons for doing this is to allow bank tellers to become
notaries public - and also proposes to require notaries public
to reside legally in the U.S. and not be convicted of or
incarcerated for a felony within 10 years of application.
MR. WESTAD said that with regard to terms, notaries public will
continue to serve a term of four years, but the bill proposes to
create limited governmental notaries public commissions, which
will be linked with one's position as a government worker and
will end when one's job ends. With regard to fees, the
application fee for non-state government notaries will remain
the same - $40 - but the fee for a Lieutenant Governor
certificate will increase from $2 to $5. With regard to bonds,
the requirement will remain the same. With regard to commission
types, notaries public will continue to serve four years, but
limited governmental notaries public will serve as long as they
hold their governmental positions. With regard to commission
revocation, the bill proposes to allow the Lieutenant Governor
to revoke a commission for good cause via a formal disciplinary
procedure using the administrative hearing office. With regard
to notary data, the bill proposes that the Lieutenant Governor
may collect information in addition to that which is already
gathered and made public.
1:19:53 PM
REPRESENTATIVE GARA asked why a notary must reapply every four
years, and whether anyone who has reapplied has been turned
down.
SCOTT CLARK, Notary Commission Administrator, Office of the
Lieutenant Governor, remarked that current law requires
reapplication every four years, and that "there's not very many
people, if any," that have ever been denied.
ANNETTE KREITZER, Chief of Staff, Office of the Lieutenant
Governor, said that in creating the bill, it was thoroughly
vetted amongst current notaries and other industry groups, and
changing the length of term didn't seem to be an issue, so the
bill keeps the term at four years.
REPRESENTATIVE GARA surmised that increasing the length of a
notary's term could reduce the state's paperwork, and suggested
that the lieutenant governor's office pursue that concept
further.
MS. KREITZER said that point is well taken and the lieutenant
governor's office will continue to consider that concept. At
this point, however, even though a version of the current bill
has been proposed [several] times, it has not yet passed, and so
the lieutenant governor's office would like to see the current
proposal adopted before considering other changes. In response
to further questions, she relayed that the increase in licensing
fees for Lieutenant Governor certificates is simply a reflection
of the higher cost of doing business since 1961, and that Mr.
Clark has done research to justify the proposed $3 increase.
1:24:53 PM
REPRESENTATIVE GRUENBERG [although the following alterations
were already incorporated into CSHB 97(STA)] made a motion to
adopt Amendment 1, to incorporate alterations detailed by the
drafter in a memo dated 1/28/05:
replace commas with semicolons in proposed AS
44.50.032(b)(2) and (c)(2); add "; delegation" to the
catchline of proposed AS 44.50.069; remove parentheses
and add "created under" to proposed AS 44.50.069(e);
rewrite the definition of "notary public" in proposed
AS 44.50.200(1) to be more precise with regard to the
cross-referenced sections.
CHAIR McGUIRE suggested making Amendment 1 conceptual.
MS. KREITZER indicated that the lieutenant Governor's office has
no objections to the motion.
1:27:33 PM
CHAIR McGUIRE asked whether there were any objections to
[Conceptual] Amendment 1. There being none, Conceptual
Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG, referring to a change suggested by the
drafter in the aforementioned memo, made a motion to adopt
Amendment 2, to delete "shall" and insert "may" on page 11, line
9.
CHAIR McGUIRE objected for the purpose of discussion.
MS. KREITZER indicated that the lieutenant governor's office has
no objections to Amendment 2.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 2. There being none, Amendment 2 was adopted.
1:29:17 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 3,
labeled 24-GH1008\F.1, Luckhaupt, 2/16/05, which read:
Page 11, line 22, following "handwriting":
Insert "or by electronic means as authorized by
regulations adopted by the lieutenant governor"
Page 13, lines 14 - 15:
Delete "; a notary public may not sign through
the use of a facsimile stamp or an electronic or
graphic printing method"
Insert ", or sign an electronic document by
electronic means as authorized by regulations adopted
by the lieutenant governor"
Page 13, line 19:
Following "official":
Insert "handwritten"
Following "signature":
Insert "and information regarding the notary
public's electronic signature"
Page 13, following line 19:
Insert a new subsection to read:
"(c) Within 10 days after the security of a
notary public's electronic signature has been
compromised, the notary public shall provide the
lieutenant governor with written notification that the
signature has been compromised. After the notary
public has provided the lieutenant governor with the
notification, the notary public shall provide the
lieutenant governor with any additional information
that the lieutenant governor requests about the
compromise of the signature."
Page 13, line 28:
Delete "or"
Insert ","
Page 13, line 30, following "length":
Insert ", or may be an electronic form as
authorized by regulations adopted by the lieutenant
governor"
Page 13, line 31, through page 14, line 1:
Delete "in a secure area"
Insert "secure and"
Page 14, line 2, following "lost,":
Insert "or the security of the notary public's
official electronic seal is compromised,"
Page 14, line 4:
Delete "or"
Insert ","
Following "loss":
Insert ", or compromised security. After the
notary public has provided the lieutenant governor
with the notification, the notary public shall provide
the lieutenant governor with any additional
information that the lieutenant governor requests
about the compromise of the seal"
Page 14, line 12:
Delete "A"
Insert "With regard to each paper document being
notarized, a"
Page 14, line 15:
Delete "of each paper document notarized,"
Page 14, line 18:
Delete "Illegible"
Insert "For a notarized paper document,
illegible"
Page 14, following line 23:
Insert a new subsection to read:
"(d) A notary public may use a seal in
electronic form on electronic documents notarized by
the notary public as authorized by regulations adopted
by the lieutenant governor. The seal shall be affixed
only at the time the notarial act is performed."
Page 15, line 14, following "signature":
Insert "and information regarding the notary
public's electronic signature"
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG said Amendment 3 was crafted so as to
allow the use of electronic notarizations when that technology
becomes available.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 3. There being none, Amendment 3 was adopted.
1:30:44 PM
REPRESENTATIVE GARA asked whether initial or subsequent
applications to become a notary must be done in person.
MR. CLARK said it can be done by mail, but the signature must be
notarized as must the oath on the notary bond.
REPRESENTATIVE GRUENBERG disclosed that he is a notary.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 97.
1:31:43 PM
REPRESENTATIVE GRUENBERG moved to report CSHB 97(STA), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
97(JUD) was reported from the House Judiciary Standing
Committee.
^OVERVIEW(S)
^DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF JUVENILE
JUSTICE
1:31:58 PM
CHAIR McGUIRE announced that the next order of business would be
the overview by the Department of Health & Social Services,
Division of Juvenile Justice.
PATTY WARE, Director, Division of Juvenile Justice (DJJ),
Department of Health & Social Services (DHSS), presented the
overview of the Department of Health and Social Services'
Division of Juvenile Justice. She relayed that one of the DJJ's
missions is to hold juvenile offenders accountable for their
behavior through a variety of ways, including supervision in the
community, in a variety of capacities, under court-ordered
probation supervision requirements. Another of the DJJ's
missions is to promote safety and the restoration of victims and
communities; the DJJ is both a justice agency and a
rehabilitative agency. The emphasis is on letting juvenile
offenders know that they have in fact harmed a victim, harmed
communities, and that they need to pay the victim back and
repair the harm they have caused. The DJJ's third mission is to
assist offenders and their families in developing skills to
prevent crime; this a critical component because the DJJ
believes its responsibility is to make sure that juveniles leave
the juvenile justice system (JJS) with a higher level of [life]
skills than when they first came into the JJS so that they don't
reoffend.
MS. WARE relayed that the DJJ works closely with law
enforcement, with Department of Law (DOL) attorneys, with the
Public Defender Agency (PDA), and with the Alaska Court System
(ACS). The delinquency statutes are in Title 47: AS 47.12
guides all of the DJJ's operations including how it handles
police reports, how it files petitions, and how it secures
detention; and AS 47.14 contains information regarding juvenile
institutions. With regard to the Alaska Administrative Code
(AAC): 7 AAC 52 details all the regulations guiding DJJ
facility operations and includes everything from grievance
procedures to how juveniles are treated; and 7 ACC 54 details
all the regulations guiding juvenile confidentiality.
MS. WARE relayed that the DJJ has jurisdiction of minors under
the age of 18, and noted that there are differences between the
adult system and the JJS. For example, except under certain
limited circumstances, the DJJ is not subject to the adult
sentencing guidelines located in AS 12.55. Those exceptions
pertain to the automatic waiver provisions located in AS
47.12.030; for example, if a 16- or 17-year-old commits either
an unclassified felony, a class A felony against a person, or a
class B felony against a person with a deadly weapon after
having been previously adjudicated of a similar crime, then that
juvenile would automatically be waived into the adult system,
and the DJJ would not get that referral. She mentioned that in
some circumstances, a juvenile could also be subject to "blended
sentencing," which is sometimes referred to down south as dual
sentencing; in such instances, a juvenile would be subject to
both a juvenile court order and adult sentencing guidelines, and
if the juvenile follows through with the juvenile court order,
then the adult sentencing requirements would not kick in.
1:38:58 PM
MS. WARE said that with regard to detention in the JJS, the
purposes are clearly delineated in statute, and should be used
to protect the minor or the community, or to ensure the minor's
attendance at a court hearing. Significant effort has been
expended recently to ensure that locked-detention resources are
being used for the aforementioned purposes; historically such
resources have been used less for those purposes and more
because of a lack of community-based alternatives. She
mentioned the Detention Assessment Instrument (DIA), explained
that it is a risk-based screening instrument used by juvenile
probation officers to determine which juveniles to detain, and
noted that although initially there were concerns among law
enforcement that using the DIA might compromise public safety,
they have not been borne out by experience.
MS. WARE also pointed out that by statute, when a juvenile is
put into a detention bed, within 48 hours that juvenile must
either be released or be brought into court to get a judge's
approval to extend the period of detention beyond the initial 48
hours. Such approval is primarily handled by juvenile probation
officers within the DJJ working in conjunction with the district
attorney's office. She then turned attention to the issue of
the DJJ's options regarding judgments and orders for formal
cases. She indicated that one option is when the judge finds
the juvenile delinquent; the DJJ then gets what is known as a
"B-1," which is full departmental custody with the DHSS, and the
juvenile is placed in one of the DJJ's locked institutions.
This option is reserved for the most serious and/or repeat
juvenile offenders.
MS. WARE explained that another option is known as supervisory
custody; the department retains custody of the juvenile but
he/she is released either to his/her parent or legal guardian.
A third option involves full departmental custody with placement
in a non-detention setting; this is also known as residential
care, and such care is provided by nonprofit organizations and
is funded by grants targeting youth under the age of 18. A
fourth option is foster care, she noted, but pointed out that
the DJJ doesn't use foster care often. Another rare option is
that of issuing a restitution order only; the juvenile would not
be supervised, but the DJJ would be taking steps to ensure that
restitution is paid.
1:45:08 PM
MS. WARE relayed that what triggers the work that the DJJ does
is a police report from either state or local law enforcement.
In fiscal year (FY) 2004, the DJJ received 6,189 delinquency
referrals from across the state, representing 10,213 charges;
the latter equates to 4,275 "unduplicated kids" that the DJJ
needed to work with and make decisions about. She referred to a
chart in members' packets and relayed that the percentages
pertaining to reports of crimes against persons versus reports
of crimes against property reflect data that has been pretty
consistent over a period of years: nearly 50 percent of
referrals pertain to crimes against property, and 19 percent
pertain to crimes against persons. She added that roughly 35-40
percent of referrals are from Anchorage. Another chart reflects
the same 6,189 reports broken down by class of crime; she
indicated that the percentages in this chart have been
consistent from year to year. Misdemeanor charges make up 55
percent of the workload, felony charges make up 31 percent of
the workload, and conduct and probation violation charges make
up 13 percent of the workload.
MS. WARE surmised that when the majority of Alaskans consider
the JJS, they think about locked, secure institutions. Although
such institutions make up a large part of the DJJ's budget,
every single one of the aforementioned delinquency referrals is
handled by a juvenile probation officer who provides a
tremendous amount of accountability, making sure that the
juvenile is paying back restitution, that the juvenile is
performing community work service (CWS), and that the juvenile
is doing the things he/she must do in order to move on to do
something more productive with his/her life. Juvenile probation
officers do this by supervising children at home and at school,
by making contacts in work settings, and by partnering with law
enforcement in school-based settings. She noted that the DJJ
files delinquency petitions - formal court processes - on about
35 percent of its cases.
1:50:12 PM
MS. WARE relayed that another important role of juvenile
probation officers is victim contact throughout the entire
justice process, and includes informing victims of the juvenile
process, getting victim impact statements, ensuring that victims
know their rights, and notifying victims who wish it that a
juvenile is going to be released. Because of budgetary
constraints, however, this piece of the DJJ's workload has
sometimes fallen by the wayside; that is why the DJJ is
requesting four victim services positions in the governor's FY
06 budget.
MS. WARE relayed that the DJJ is implementing something known as
the Youth Level of Service/Case Management Inventory (YLS/CMI).
Because it is very important for the DJJ to be making decisions
about which young people pose a risk to the community, which
young people need to be institutionalized, and which young
people have such a low level of risk that state resources should
not be expended on them, the DJJ has spent time looking at
various instruments that will assist the DJJ in making these
decisions, and has opted to implement the YLS/CMI as the best
method by which to obtain needed information. She mentioned
that currently, the YLS/CMI is only being used after the DJJ has
made the decision to file a delinquency petition, brought the
juvenile to court, and had him/her adjudicated; the DJJ
anticipates using the YLS/CMI much sooner in the process so as
to make use of the resulting information sooner.
1:53:09 PM
MS. WARE turned attention to what she characterized as the most
visible portion of the DJJ: the DJJ's eight locked facilities,
which are located in Anchorage, Fairbanks, Juneau, Bethel,
[Palmer], Ketchikan, Kenai, and Nome, and which have a total of
288 beds of two types - short term detention beds used for
periods of up to 30 days pre-adjudication, and long term
detention beds used for juveniles that have been adjudicated.
She noted that four stand-alone detention centers - located in
Ketchikan, [Palmer], Kenai, and Nome - have only short term
detention beds, and that four stand-alone detention centers -
located in Anchorage, Fairbanks, Juneau, and Bethel - have both
short term and long term detention beds.
MS. WARE said that all of the DJJ's institutions have recently
begun to focus some of their resources on transitional and
reentry services, though currently Anchorage has the most
comprehensive model, called the Transitional Services Unit, and
the hope is that that model can be adapted to fit some of the
DJJ's smaller institutions. Additionally, the DJJ is
transitioning to "Performance-based Standards (PbS)," a national
quality assurance initiative developed by the Council of
Juvenile Correctional Administrators (CJCA) in conjunction with
the U.S. Department of Justice (DOJ), Office of Juvenile Justice
and Delinquency Prevention, Office of Justice Programs.
MS. WARE said that Alaska has recently "signed onto" [PbS],
which is a very rigorous exacting process that will help the DJJ
focus on outcomes for detention units as well as treatment
units. The outcomes are categorized by safety, security, order,
programming, health, mental health, justice, and reintegration,
and are based on best practice and research. She mentioned that
the PbS requires two data collection cycles per year, and that
Alaska just completed its first cycle in October, 2004, which
involved having every facility enter data - based on 159
outcomes for treatment and 59 outcomes for detention - into a
web-based portal; the resulting information will assist the DJJ
in moving forward with improvement plans.
1:57:06 PM
MS. WARE mentioned that the DJJ reports a number of performance
measures to the legislature, including re-offense data regarding
juveniles who are leaving long-term institutional treatment, and
juveniles who have not served time in a facility but for whom
the DJJ has closed out a probation supervision case; both types
of juveniles are tracked for two years. Referring to a chart in
members' packets, she noted that the re-offense rate regarding
juveniles with closed out probation supervision is 22 percent,
and that the re-offense rate for juveniles leaving long-term
institutional treatment is 37 percent through the first year and
58 percent through the second year. In response to a question,
she indicated that because of a lack of resources, juveniles
with closed out probation supervision are not tracked when they
reach the age of majority. She also mentioned that a re-offense
could simply be another referral.
MS. WARE mentioned that other performance measures include data
pertaining to restitution collection and to CWS. Referring to
another chart in members' packets, she indicated that for
informal cases in FY 04, at time of case closure, there was a 90
percent collection rate, and that 96 percent of CWS hours
ordered were completed. In response to a comment, she relayed
that although the re-offense rate may seem high, the DJJ is
trying to improve upon that, and mentioned that compared with
other states, Alaska is not doing too poorly. In response to a
question, she noted that the DJJ also internally tracks re-
offenses based on the seriousness of the offenses. She also
mentioned that the DJJ will be striving to compile more re-
offense data, particularly regarding the closed out probation
supervision cohort, and hopes to get that information to the
legislature during the interim, as well as information regarding
juveniles who end up in the JJS because of substance abuse or
mental health disorders.
2:08:29 PM
MS. WARE, in response to questions regarding current waiver
provisions, relayed that it is difficult to get a discretionary
waiver, even on murder cases; that the DJJ, in conjunction with
the district attorney's office, has filed for discretionary
waivers in different jurisdictions, but they have not been
granted; that she believes that although the DJJ does a good job
of providing an array of treatment services in its institutional
facilities, there are certain criminal offenses serious enough
to warrant waiver into the adult system; and that the
administration's position is that it is appropriate to add
certain serious offenses involving weapons to the current
automatic waiver provision of statute.
MS. WARE, in response to a question regarding what services the
DJJ's institutions provide, relayed that all juveniles in those
institutions are required to meet educational requirements; that
there are substance abuse prevention and/or treatment services,
depending upon the facility; that there are contract mental
health services in the DJJ's "treatment institutions," as well
as a mental health clinician in the Anchorage, Bethel, and
Fairbanks facilities and soon in the Juneau facility; that the
Anchorage facility has some specialized units such as a sex
offender unit, a girls unit, and a closed treatment unit
specializing in juveniles who are serious, violent offenders or
"mental health offenders"; and that anger management classes,
victim empathy classes, as well as other treatment services are
provided in all of the DJJ's facilities.
CHAIR McGUIRE thanked Ms. Ware for her presentation.
HB 88 - OFFENSES BY MINORS/AGAINST TEACHERS
2:16:12 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 88, "An Act relating to certain weapons
offenses involving minors; to aggravating factors in sentencing
for certain offenses committed against a school employee; and
providing for an effective date."
CHAIR McGUIRE after ascertaining that no one else wished to
testify, closed public testimony on HB 88.
2:17:54 PM
REPRESENTATIVE GRUENBERG referred to Amendment 1, labeled 24-
GH1096\A.1, Luckhaupt, 2/7/05, which read:
Page 1, line 2:
Delete "against a school employee"
Insert "on school grounds, on a school bus, at a
school-sponsored event, or in administrative offices
of a school district"
Page 2, lines 16 - 18:
Delete all material and insert:
"(31) the offense is a violation of
AS 11.41 or AS 11.46.400 and the defendant directed
the conduct constituting the offense against a person
while the person was on school grounds, on a school
bus, at a school-sponsored event, or in the
administrative offices of a school district; in this
paragraph,
(A) "school bus" has the meaning given in
AS 11.71.900;
(B) "school district" has the meaning given
in AS 47.07.063;
(C) "school grounds" has the meaning given
in AS 11.71.900."
REPRESENTATIVE GARA, referring to a letter in members' packets
from Mr. Linton, Department of Law (DOL), dated 2/16/05, which
detailed three out of four cases in which a discretionary waiver
was sought but not granted, asked why the cases involving murder
weren't automatically waived into adult court.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
that it was because they involved a juvenile defendant under 16
years of age.
2:19:28 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1.
REPRESENTATIVE COGHILL objected, saying he is not a big fan of
the school grounds issue, though he can understand why they
might want the bill to apply to an incident that occurs on a
school bus. He offered his belief that specificity with regard
to location could create problems.
CHAIR McGUIRE offered her understanding that as currently
written, the bill could apply to assaults that are mere bumps
and pushes.
REPRESENTATIVE GRUENBERG noted that AS 11.61.195(a)(2) specifies
location, and indicated that he's attempting to do something
similar with proposed AS 12.55.155(c)(31) because he wants to
protect everyone who is on school grounds. He added that he
would be happy to consider a friendly amendment that would say
the conduct has to happen while school is in session.
2:25:38 PM
REPRESENTATIVE DAHLSTROM asked Representative Gruenberg whether
would consider it a friendly amendment to say "certain crimes
committed against school employees" and then insert "on school
grounds, on a school bus". She posited that such language might
take care of concerns that the language is open ended and would
apply to anyone, while still getting to the root of "where we
want to go."
REPRESENTATIVE GRUENBERG said he would consider such language a
friendly amendment because it would make the language more
precise. He asked, however, whether members have any interest
in having the aggravator apply when anyone is assaulted "during
a school event, on school property, or in a school bus".
CHAIR McGUIRE said she is not sensing a tremendous amount of
support for that concept. She offered her understanding that
Representative Dahlstrom is proposing an alternative that would
incorporate a lot of the work done by Representative Gruenberg,
and surmised that that alternative would have more committee
support.
2:27:33 PM
CHAIR McGUIRE clarified her understanding that Representative
Dahlstrom's suggestion would be to leave the language specifying
that the assault was directed at a school employee and then add
language which would specify that the assault occurred on the
school grounds, on a school bus, at a school-sponsored event, or
in the administrative offices.
REPRESENTATIVE GRUENBERG said he would support that change, but
suggested that the language also specify that the conduct
occurred while school is in session.
REPRESENTATIVE DAHLSTROM concurred with Chair McGuire's synopsis
of her suggested amendment to Amendment 1.
REPRESENTATIVE KOTT said he is concerned that perhaps student
teachers would not be covered by language specifying school
employee, and remarked that they should be afforded the same
protection.
REPRESENTATIVE GARA suggested adding language so that the bill
covers "school employee, volunteer, or intern".
CHAIR McGUIRE said such would not cover school bus drivers that
are on contract.
REPRESENTATIVE GARA suggested also adding "contractor"; thus the
language would read in part, "school employee, intern,
volunteer, or contractor".
REPRESENTATIVE GRUENBERG said he supports that concept, but
asked why they wouldn't also protect children.
2:30:42 PM
REPRESENTATIVE COGHILL offered his understanding that children
are already protected, and reiterated his belief that
specificity with regard to location could create problems.
REPRESENTATIVE GRUENBERG asked Ms. Carpeneti whether there is an
aggravating factor for assaulting a child on school grounds.
MS. CARPENETI said not to her knowledge. She noted that a
problem with specifying which people the bill applies to is that
the person who fills up the school vending machines might not
then be covered. She acknowledged that that might be a
justification for focusing on location.
CHAIR McGUIRE noted that HB 88 does not discuss the place so
much as person.
MS. CARPENETI concurred.
2:32:53 PM
CHAIR McGUIRE noted that there is concern about altercations
between students having a very serious aggravator apply.
REPRESENTATIVE GRUENBERG said he did not intend for the
aggravator to apply to such situations; rather, he merely wants
to protect children from serious assaults such as occurred at
Columbine High School in Colorado. He pointed out that applying
an aggravator is not mandatory, and suggested that the committee
could clarify his intent in some fashion. He said he feels very
strongly that children must be protected, that children should
be safe at schools.
REPRESENTATIVE COGHILL agreed, but pointed out that the bill
already specifies, "school employee" and "on school grounds or
at a school-sponsored event". He offered his understanding that
the bill will be applicable only after there is already a
conviction; thus he is not sure that [changing the language]
will make any difference. Instead, there is the potential to
create more problems than are solved.
CHAIR McGUIRE, in response to comments, indicated that the
question before the committee is whether to say that anyone who
is in the aforementioned areas, regardless of who they are, who
is assaulted by another adult, will have this aggravator
available.
REPRESENTATIVE GRUENBERG mentioned a situation that occurred
several years ago in his district where a person came onto
school grounds with a knife and started slashing children. Such
a situation is illustrative of the need for language that will
protect both children and adults.
2:38:17 PM
REPRESENTATIVE COGHILL pointed out, however, that the bill
doesn't actually protect children, instead it merely provides an
aggravator for sentencing purposes after the assault has already
occurred. He suggested that if the goal is to protect children,
then they should consider providing for personnel in the schools
to perform that function.
REPRESENTATIVE GRUENBERG said he would accept that suggestion as
a friendly amendment.
REPRESENTATIVE COGHILL withdrew his objection.
2:38:52 PM
REPRESENTATIVE GRUENBERG urged the committee adopt Amendment 1.
CHAIR McGUIRE noted that Representative Dahlstrom had suggested
an amendment to Amendment 1.
REPRESENTATIVE DAHLSTROM withdrew her suggested amendment to
Amendment 1.
CHAIR McGUIRE objected to the motion to adopt Amendment 1 for
purposes of discussion.
MS. CARPENETI indicated that the administration is amenable to
Amendment 1.
2:40:02 PM
REPRESENTATIVE GARA asked whether there are currently any
aggravators that increase sentences when the victim is a minor.
MS. CARPENETI said she thinks there are, since there are
aggravators that apply when the victim is extremely vulnerable,
and that would include a child.
REPRESENTATIVE GARA asked whether such would apply if the victim
is a 16-year-old.
MS. CARPENETI said she wouldn't think so, depending on the
circumstances.
REPRESENTATIVE GARA sought assurance that the change proposed by
Amendment 1 would not create an aggravator that would be
redundant to an existing aggravator.
MS. CARPENETI offered her belief that it would not.
CHAIR McGUIRE withdrew her objection.
REPRESENTATIVE KOTT said he thinks that Amendment 1 is a good
amendment.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1. There being none, Amendment 1 was adopted.
2:41:41 PM
CHAIR McGUIRE referred to Amendment 2, labeled 24-GH1096\A.3,
Luckhaupt, 2/8/05, which read:
Page 3, lines 14 - 15:
Delete all material and insert:
"(4) that is misconduct involving weapons
in the
(A) first degree under
(i) AS 11.61.190(a)(1); or
(ii) AS 11.61.190(a)(2) when the firearm
was discharged under circumstances manifesting
substantial and unjustifiable risk of physical injury
to a person; or
(B) second degree under AS 11.61.195."
CHAIR McGUIRE opined that Amendment 2 speaks to the heart of
bill, which adds offenses to the automatic waiver provision of
current statute.
REPRESENTATIVE GARA made a motion to adopt Amendment 2.
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA remarked that the bill aims to automatically
transfer a whole class of juveniles into adult court - juveniles
who engage in weapons crimes, juveniles who engage in very
serious activity. One of the crimes the bill proposes to waive
into adult court, however, pertains to the crime of discharging
a firearm from a propelled vehicle and damaging property;
shooting at a road sign could constitute such behavior. Since
other sections of the law already address similar behavior
wherein there is an unjustifiable risk that harm could befall a
person, Amendment 2 proposes to eliminate the proposed waiver
into adult court if the behavior could only cause property
damage. If Amendment 2 is adopted, juveniles who engage in a
weapons crime that involves substantial risk to a person would
still be waived into adult court.
2:44:00 PM
MS. CARPENETI said that although she generally agrees that
property crimes are different from crimes against a person,
under the circumstances of first degree misconduct involving
weapons, it is really hard to imagine that somebody shooting a
gun out of a moving vehicle wouldn't be endangering another
person. However, to the extent that there might be those
unusual circumstances that the behavior could only be that of
shooting at a road sign when nobody is around, then she supposed
that she didn't have an objection. She asked that Mr. Linton be
allowed to comment on Amendment 2 because of his familiarity
with "these cases."
2:44:50 PM
LEONARD M. "BOB" LINTON, JR., District Attorney, Third Judicial
District (Anchorage), Department of Law (DOL), relayed that he
as not yet seen Amendment 2.
REPRESENTATIVE GARA explained the content of Amendment 2.
MR. LINTON pointed out that the conduct which Amendment 2
proposes to exclude from the automatic waiver is already part of
current law as it applies to adults, and if the circumstances
are such that it would be unreasonable to charge an adult with a
class A felony, it would also be unreasonable to charge a 16- or
17-year-old juvenile with a class A felony for the same conduct.
It would behoove the prosecution to look at the statute and see
whether the conduct constitutes a substantial and unjustifiable
risk of physical injury to a person or damage to property, he
remarked, adding that he does not know of any instances where
adults have been charged under AS 11.61.190(a)(2) for shooting
at road signs in remote areas. The current law has not been
misapplied such that the language "substantial and unjustifiable
[risk]" has been applied to a road sign in a remote area. In
conclusion, he said he does not see any risk that prosecutors,
courts, or police would apply the statute in circumstances where
the conduct was committed by juveniles.
CHAIR McGUIRE asked Mr. Linton to explain why he thinks an
unjustifiable risk of damage to property deserves escalated
treatment.
MR. LINTON mentioned examples where automobiles parked outside
houses were being shot at. He added: "Were there people
getting into or getting out of those vehicles at the time?
Would people normally be getting into, getting out of, or likely
to be in vehicles? Are people just sitting inside ... their
vehicles to avoid the fight with the wife or the husband?"
2:50:47 PM
REPRESENTATIVE GARA said he is not trying to change the proposed
waiver as it pertains to AS 11.61.195 or AS 11.61.190(a)(1). He
asked Mr. Linton to offer a reason for waiving a juvenile who
does not cause any danger to a person into adult court.
MR. LINTON indicated that he would do some research to try to
find examples where a juvenile is shooting at an empty house or
an empty vehicle and it does not constitute an unjustifiable
risk of physical injury to a person. He pointed out that the
shooter in such cases doesn't care whether the house or the
vehicle is empty or whether someone is standing nearby; rather,
the shooter just wants to terrorize.
REPRESENTATIVE GRUENBERG mentioned that he has been the victim
of a drive-by shooting when his vehicle was shot while it was
parked outside of his house. The concern at this point, he
surmised, is that the statute is broad enough to include the act
of shooting at a road sign even if there is no one else within
10 miles of it.
CHAIR McGUIRE asked Mr. Linton to look at 11.61.195(a)(3), which
speaks to [knowingly] discharging a firearm at or in the
direction of "(A) a building with reckless disregard for a risk
physical injury to a person; or (B) a dwelling". She asked him
to comment regarding possibly adding "an automobile" via a
subparagraph (C). Such a change would make shooting a firearm
at or in the direction of a vehicle the crime of misconduct
involving a weapon in the second degree, a class B felony. She
pointed out that the term "property" is very broad and does
include road signs.
MS. CARPENETI remarked that Mr. Linton might have difficulty
finding examples of cases wherein property is damaged without
there also being an unjustifiable risk of physically injuring a
person, because those types of cases are not prosecuted under
this section; the DOL uses its discretion in charging such
cases, as do judges and juries. She indicated that she would
not have a problem with Amendment 2, but would not want to add
"vehicle" to AS 11.61.195(a)(3).
CHAIR McGUIRE withdrew her objection to Amendment 2.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 2. There being none, Amendment 2 was adopted.
2:56:10 PM
REPRESENTATIVE ANDERSON moved to report HB 88, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes.
REPRESENTATIVE GARA objected for the purpose of discussion. He
remarked that he has not seen any evidence that the current law
regarding waiving a juvenile into adult court is not working,
nor heard evidence that such a waiver would be better for the
juvenile. He said he wants evidence that the juveniles referred
to in HB 88 would not be better served in the juvenile justice
system (JJS).
CHAIR McGUIRE pointed out that Mr. Linton's letter describes one
case that goes to the point that the current waiver provision is
not working, though she added that she does share a portion of
Representative Gara's concerns. She remarked that it would be
helpful to know that some effort is going towards rehabilitation
of those that will be affected by Section 3 of the bill.
REPRESENTATIVE GRUENBERG said he supports the bill, but doesn't
see the need for retaining Sections 1, 2 and 6, which would
establish a short title for the proposed Act, would add findings
and intent language into uncodified law, and would provide an
effective date of July 1, 2005.
REPRESENTATIVE GRUENBERG suggested that the committee strike
Sections 1, 2, and 6.
CHAIR McGUIRE remarked that any motion to that effect would be
out of order because there is already a motion before them to
report the bill from committee. She suggested to Representative
Gruenberg that he consider offering such an amendment in either
the next committee of referral or on the House floor.
REPRESENTATIVE GARA withdrew his objection to report the bill
from committee. He added that he just didn't understand the
need for the bill.
3:05:08 PM
CHAIR McGUIRE asked whether there were any further objections to
reporting HB 88, as amended, from committee. There being none,
CSHB 88(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:06 p.m.
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