03/02/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB155 | |
| HB132 | |
| HB107 | |
| HB131 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 155 | TELECONFERENCED | |
| += | HB 132 | TELECONFERENCED | |
| += | HB 107 | TELECONFERENCED | |
| *+ | HB 131 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 2, 2005
1:11 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. 155
"An Act relating to youth courts and to the recommended use of
criminal fines to fund the activities of youth courts; and
relating to accounting for criminal fines."
- MOVED CSHB 155(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 132
"An Act relating to sentencing for certain crimes committed
against the elderly; and providing for an effective date."
- MOVED CSHB 132(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 107
"An Act providing for the award of full actual attorney fees and
costs to a person aggrieved by unlawful obstruction or hindrance
of hunting, fishing, or viewing of fish or game; amending Rules
79 and 82, Alaska Rules of Civil Procedure; and amending Rule
508, Alaska Rules of Appellate Procedure."
- HEARD AND HELD
HOUSE BILL NO. 131
"An Act increasing the criminal classification of theft of an
access device and of obtaining an access device or
identification documents by fraudulent means; increasing the
criminal classification for certain cases of fraudulent use of
an access device; and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 155
SHORT TITLE: USE CRIMINAL FINES FOR YOUTH COURTS
SPONSOR(S): REPRESENTATIVE(S) SAMUELS
02/16/05 (H) READ THE FIRST TIME - REFERRALS
02/16/05 (H) JUD, FIN
03/02/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 132
SHORT TITLE: CRIMES AGAINST ELDERLY
SPONSOR(S): REPRESENTATIVE(S) STOLTZE
02/09/05 (H) READ THE FIRST TIME - REFERRALS
02/09/05 (H) JUD, FIN
02/23/05 (H) JUD AT 1:00 PM CAPITOL 120
02/23/05 (H) Heard & Held
02/23/05 (H) MINUTE(JUD)
03/02/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 107
SHORT TITLE: ATTY FEES: HUNTING/FISHING INTERFERENCE
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
01/24/05 (H) READ THE FIRST TIME - REFERRALS
01/24/05 (H) RES, JUD
02/02/05 (H) RES AT 1:00 PM CAPITOL 124
02/02/05 (H) Heard & Held
02/02/05 (H) MINUTE(RES)
02/09/05 (H) RES AT 1:00 PM CAPITOL 124
02/09/05 (H) Heard & Held
02/09/05 (H) MINUTE(RES)
02/16/05 (H) RES AT 1:00 PM CAPITOL 124
02/16/05 (H) Moved CSHB 107(RES) Out of Committee
02/16/05 (H) MINUTE(RES)
02/18/05 (H) RES RPT CS NT 3DP 1DNP 4NR
02/18/05 (H) DP: OLSON, ELKINS, RAMRAS;
02/18/05 (H) DNP: SEATON;
02/18/05 (H) NR: GATTO, LEDOUX, CRAWFORD, KAPSNER
02/18/05 (H) FIN REFERRAL ADDED AFTER JUD
03/02/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 131
SHORT TITLE: ACCESS DEVICE & I.D. DOCUMENT CRIMES
SPONSOR(S): REPRESENTATIVE(S) STOLTZE
02/09/05 (H) READ THE FIRST TIME - REFERRALS
02/09/05 (H) JUD, FIN
02/23/05 (H) JUD AT 1:00 PM CAPITOL 120
02/23/05 (H) Scheduled But Not Heard
03/02/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SARA NIELSEN, Staff
to Representative Ralph Samuels
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 155 on behalf of the sponsor,
Representative Samuels.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 155, provided
comments on a proposed CS.
JONATHON LACK, Member
Board of Directors
Anchorage Youth Court (AYC)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
155, encouraged its passage, and relayed the support of Sharon
Leon and Joseph Ehrheart for HB 155.
WHITNEY CUSHING
Homer, Alaska
POSITION STATEMENT: During discussion of HB 155, provided
comments on behalf of himself, Katie Gavenus, and Ginny
Espenshade.
MARK WARTES, Chair
Board of Directors
North Star Youth Court
Fairbanks, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
155 and said he looks for the legislature's support.
MELISSA McCUMBY, Program Director
Valdez Youth Court
Valdez, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
155.
PATTY WARE, Director
Division of Juvenile Justice (DJJ)
Department of Health & Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 155, provided
comments, suggested a change to the proposed CS, and responded
to questions.
BEN MULLIGAN, Staff
to Representative Bill Stoltze
Alaska State Legislature
POSITION STATEMENT: Presented a proposed CS for HB 132 on
behalf of the sponsor, Representative Stoltze; presented HB 131
on behalf of the sponsor, Representative Stoltze.
RANDY RUARO, Assistant Attorney General
Legislation & Regulations Section
Office of the Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of a
proposed CS for HB 132; responded to comments during discussion
of HB 131.
JIM POUND, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 107 on behalf of the sponsor,
Representative Ramras.
SAM TRIVETTE, AARP;
President
Retired Public Employees of Alaska (RPEA)
Alaska Public Employees Association/Alaska Federation of
Teachers (APEA/AFT)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 131 on behalf of
the AARP.
MICHELLE LOGAN, Detective
Anchorage Police Department (APD)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 131.
JAY FOLEY, Co-Executive Director
Identity Theft Resource Center (ITRC)
San Diego, California
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 131.
STEVE CLEARY, Executive Director
Alaska Public Interest Research Group (AkPIRG)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
131.
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 131, provided
comments, mentioned concerns, and responded to a question.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 131, responded to
comments and questions.
JOHN B. SKIDMORE, Assistant District Attorney
Third Judicial District (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 131, addressed
concerns and responded to questions.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:11:35 PM. Representatives
McGuire, Anderson, Dahlstrom, and Gruenberg were present at the
call to order. Representatives Coghill, Kott, and Gara arrived
as the meeting was in progress.
HB 155 - USE CRIMINAL FINES FOR YOUTH COURTS
1:12:16 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 155, "An Act relating to youth courts and to
the recommended use of criminal fines to fund the activities of
youth courts; and relating to accounting for criminal fines."
SARA NIELSEN, Staff to Representative Ralph Samuels, Alaska
State Legislature, sponsor, on behalf of Representative Samuels,
characterized HB 155 as simply an accounting bill that gives the
legislature the authority to appropriate to the youth courts up
to 25 percent of the fines collected by the Alaska Court System
(ACS). Youth courts comprise a program that helps young
offenders by intervening early to set them on the "right track"
and works to deter them from becoming adult offenders. The
Anchorage Youth Court (AYC) is the oldest in Alaska, and in the
first two quarters of the current fiscal year (FY), youth courts
dealt with 471 youth offender referrals, resulting in 8,833
hours of community [work] service (CWS) being ordered. Although
HB 155 allows the legislature to appropriate monies to youth
courts, it does not mandate it. She noted that members' packets
include a proposed committee substitute (CS) for HB 155, Version
24-LS0614\G, Bullock, 2/28/05, that is intended to address
concerns expressed by the ACS.
1:13:48 PM
REPRESENTATIVE ANDERSON moved to adopt the proposed CS for HB
155, Version 24-LS0614\G, Bullock, 2/28/05, as the work draft.
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
He asked for a description of the differences between HB 155 and
Version G.
MS. NIELSEN relayed that the differences pertain to estimations
regarding the collection of fines.
REPRESENTATIVE GRUENBERG noted that Version G includes new
Sections 3 and 4.
CHAIR McGUIRE mentioned that members' packets include an e-mail
from the ACS that provides a more in-depth explanation of why
the changes offered in the CS are necessary.
1:14:30 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), said that the CS addresses the fact that the ACS's
computer accounting system cannot yet, in all locations, break
out fines from forfeitures. The CS will allow the ACS to give
the legislature a yearly estimate of fines rather than an exact
amount; he noted that such is already done regarding surcharges.
REPRESENTATIVE GRUENBERG withdrew his objection.
CHAIR McGUIRE announced that Version G was before the committee.
MR. WOOLIVER remarked that as a general matter, the ACS is very
supportive of youth courts, considering them to be very
worthwhile on a number of levels.
1:16:46 PM
JONATHON LACK, Member, Board of Directors, Anchorage Youth Court
(AYC), after mentioning that he also serves on the [Alaska
Juvenile Justice Advisory Committee (AJJAC)], said that youth
courts throughout the state are remarkable in producing young
people who are involved in the program and in training them to
take an active role in the community. Youth courts excel at
punishing first time juvenile offenders severely and far more
quickly than the regular juvenile justice system (JJS). He too
characterized HB 155 as an accounting bill, and offered his
belief that the fiscal note from the Division of Juvenile
Justice (DJJ) reflects an amount anticipated only if the
legislature does appropriate funds as allowed by the bill.
House Bill 155 will give youth courts some reassurance that they
will be funded every year and that the current legislature
understands the importance of youth courts. He encouraged
passage of the bill and co-sponsorship of it.
1:19:17 PM
MR. LACK relayed that Sharon Leon - Executive Director,
Anchorage Youth Court (AYC) - and Joseph Ehrheart - United Youth
Courts of Alaska (UYCA) - have indicated agreement with his
comments and support the bill.
1:20:31 PM
WHITNEY CUSHING - speaking on behalf of himself, Katie Gavenus,
and Ginny Espenshade - relayed that he is the past student
president of the United Youth Courts of Alaska (UYCA), and
opined that no other group can be found with a greater
commitment to community and volunteerism. During his terms on
the UYCA, he said he found that the students and directors
involved in the UYCA have an unmatched frugality and resolve to
carry out justice. He opined that the youth courts of Alaska
have filled in an integral part of the court system, and have
saved the state money through profound ways, such as by reducing
the number of juveniles that go through regular juvenile courts,
and by addressing recidivism rates. He offered his belief that
the chances are great that a juvenile going through a youth
court will never show up in any of Alaska's other court systems.
Even in times of economic downturns, he said, he believes it is
necessary to invest in [youth] courts. He thanked the
legislature for recognizing youth courts as an integral part of
Alaska's justice process, and concluded by saying, "Over
thousands and thousands of hours are employed by youth courts;
youth court is basically justice structured to employ
volunteerism."
1:22:50 PM
MARK WARTES, Chair, Board of Directors, North Star Youth Court,
said he agrees with all of the comments from Anchorage and
[Homer], and relayed that the board unanimously supports HB 155.
He mentioned that he has served on at least "three major youth
boards here in the Fairbanks area," and the North Star Youth
Court is the only organization in which youths serve their
communities. It is an exciting program to be part of, he
remarked, adding that he looks for the legislature's support.
1:23:50 PM
MELISSA McCUMBY, Program Director, Valdez Youth Court, relayed
that the DJJ's juvenile probation officer handles Cordova,
Glennallen, and Valdez and so any relief the Valdez Youth Court
is able to provide is greatly appreciated. She noted that the
juvenile probation officer handled 41 referrals, 36 percent of
which Valdez Youth Court was able to address. She also
mentioned that the Valdez Youth Court handles city ordinance
violations, such as minors in possession of alcohol or tobacco
and curfew violations. To date, the Valdez Youth Court has
imposed 187 hours of CWS and collected $377 of restitution for
victims.
1:25:07 PM
PATTY WARE, Director, Division of Juvenile Justice (DJJ),
Department of Health & Social Services (DHSS), said that the
DHSS and the DJJ are very strong supporters of youth courts.
She mentioned that statewide in FY 04, in terms of holding
youths accountable through the use of their peers, youth courts
handled 10 percent of the DJJ's volume. Characterizing youth
courts as an excellent program, she said that Alaska has long
been a leader [in this venue]. She suggested, however, that
Section 2 of Version G, lines 11-12, be altered by deleting the
reference to the United Youth Courts of Alaska, and relayed that
this suggested change was engendered by a request from youth
courts that the DHSS, rather than the UYCA, be responsible for
the distribution of the funds authorized by the bill.
REPRESENTATIVE GRUENBERG asked whether such a change would incur
any indirect costs.
1:28:09 PM
MS. WARE mentioned that although the DJJ has submitted a small
fiscal note, the estimated costs are contingent upon the
legislature actually appropriating monies as allowed by the
bill, and would fund a half time program coordinator position.
She characterized this fiscal note as small given the level of
programming and technical assistance it would support. She
opined that were youth courts to be asked, they would express
appreciation of the DJJ's interaction with them.
REPRESENTATIVE GRUENBERG asked how many youth courts are in
Alaska.
MS. WARE said that 14 youth courts are operating currently and 5
are in various stages of development.
REPRESENTATIVE GRUENBERG asked whether the aforementioned half
time position is really necessary.
MS. WARE replied, "We based that figure on an additional 34-40
youth courts, based on a figure of about $900,000, based on the
amount of money that would have been taken from the [ACS's]
fines collected." In response to further questions, she
indicated that the fiscal note addresses future fiscal years,
but not the current fiscal year because the existing
infrastructure is sufficient to manage the 14 youth courts
already in existence as well as the 5 under development.
1:30:53 PM
REPRESENTATIVE GRUENBERG suggested possibly narrowing the title
if additional issues aren't going to be addressed by the bill.
MS. WARE indicated she is not aware of any other issues that
could be addressed by the bill.
1:32:23 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
delete from page 1, lines 11-12: ", or (2) the United Youth
Courts of Alaska". There being no objection, Amendment 2 was
adopted.
1:33:03 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 2, to narrow the title "so it just covers what's in
the bill."
CHAIR McGUIRE asked whether there were any objections to
Conceptual Amendment 2 "and title resolution to follow." There
being none, Conceptual Amendment 2 was adopted.
1:34:00 PM
REPRESENTATIVE ANDERSON moved to report the proposed CS for HB
155, Version 24-LS0614\G, Bullock, 2/28/05, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 155(JUD) was
reported from the House Judiciary Standing Committee.
HB 132 - CRIMES AGAINST ELDERLY
1:34:35 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 132, "An Act relating to sentencing for certain
crimes committed against the elderly; and providing for an
effective date."
BEN MULLIGAN, Staff to Representative Bill Stoltze, Alaska State
Legislature, sponsor, relayed on behalf of Representative
Stoltze that he and the sponsor considered the committee's
suggestions and created a proposed committee substitute (CS) for
HB 132, Version 24-LS0421\G, Luckhaupt, 3/1/05.
RANDY RUARO, Assistant Attorney General, Legislation &
Regulations Section, Office of the Attorney General, Department
of Law (DOL), said that because of members' concerns regarding
possible issues related to the U.S. Supreme Court case, Blakely
v. Washington, 124 S. Ct. 2531 (U.S., 2004), Version G no longer
references sentencing; now provides that the proposed changes to
penalties for crimes against the elderly will be located in
Title 11; contains language clarifying [what the mental intent
of the perpetrator must be in order for Section 2 of the bill to
apply] - he mentioned that the intent is for the defendant to
get notice of the possible enhanced penalty via the charging
documents, thus alleviating any "Blakely problems"; and no
longer contains the language that was formerly located in
subsection (b)(6) of the original version that referenced
criminal mischief crimes - that language has been deleted and
the remaining paragraphs have been renumbered.
1:37:15 PM
REPRESENTATIVE GARA said the changes in Version G satisfy his
concerns, and relayed that after further review, he now concurs
with Mr. Ruaro's interpretation of the bill.
CHAIR McGUIRE offered her understanding that she'd closed public
testimony at the bill's last hearing.
REPRESENTATIVE GRUENBERG asked Mr. Ruaro to clarify which
language has been deleted from Version G.
MR. RUARO said it was the language referring to property crimes
such as using a key to damage the paint job on a car.
1:39:34 PM
REPRESENTATIVE DAHLSTROM moved to report the proposed CS for HB
132, Version 24-LS0421\G, Luckhaupt, 3/1/05, out of committee
with individual recommendations and the accompanying fiscal
notes.
CHAIR McGUIRE pointed out that Version G had to be adopted as
work draft first.
REPRESENTATIVE DAHLSTROM moved to adopt the proposed CS for HB
132, Version 24-LS0421\G, Luckhaupt, 3/1/05, as the work draft.
There being no objection, Version G was before the committee.
REPRESENTATIVE DAHLSTROM again moved to report the proposed CS
for HB 132, Version 24-LS0421\G, Luckhaupt, 3/1/05, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 132(JUD) was
reported from the House Judiciary Standing Committee.
HB 107 - ATTY FEES: HUNTING/FISHING INTERFERENCE
1:40:26 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 107, "An Act providing for the award of full
actual attorney fees and costs to a person aggrieved by unlawful
obstruction or hindrance of hunting, fishing, or viewing of fish
or game; amending Rules 79 and 82, Alaska Rules of Civil
Procedure; and amending Rule 508, Alaska Rules of Appellate
Procedure." [Before the committee was CSHB 107(RES).]
JIM POUND, Staff to Representative Jay Ramras, Alaska State
Legislature, sponsor, presented HB 107 on behalf of
Representative Ramras. He said:
[House Bill 107] is based on language, in part written
years ago, about a growing concern that the
legislature had of individuals and groups obstructing
hunting, trapping, and even wildlife viewing in this
state. When an obstruction takes place, there often
is a criminal charge filed against the individual.
[He/she] can also be sued by the aggrieved person;
juries have awarded as much as $200,000 in some of
these cases. But under the current system and current
statute, reasonable attorney fees and costs are not
awarded.
This has a chilling effect, as those costs are
directly passed onto the plaintiff in the case. An
individual has to consider, before they go to court,
how much it's going to cost to pursue a civil case
even if they prevail; HB 107 corrects this error in
the law. It allows the court to authorize reasonable
and actual attorney fees and costs to the prevailing
party. It sends a clear message to those who would
attempt to prevent people from enjoying their outdoor
activities. It also tells Alaska's hunters, trappers,
and wildlife viewers that we support them in their
activities.
MR. POUND, in conclusion, urged the committee's support of HB
107.
CHAIR McGUIRE reminded members that CSHB 107(RES) was before the
committee.
1:42:25 PM
REPRESENTATIVE GARA raised the issue of unintended consequences.
Using the example of those who fish in combat fishing areas, he
indicated that he wouldn't want to see a lot of lawsuits "coming
out of a weekend at the Russian River."
MR. POUND offered his understanding that the language on page 2,
line 8, should address that concern because it specifies that
"lawful competitive practices" are exempted from the bill.
REPRESENTATIVE GARA argued that he still has a concern because
some things that occur are not necessarily part of a competitive
process; instead, they occur because somebody is "just being a
jerk - they're not trying to compete with you, they're just
cluelessly walking over your line or something like that." He
said he would like to see this issue addressed before the bill
gets to the house floor. He noted that trout fisherman try to
keep a low profile - they try not to splash through the water,
they crouch a little bit so as not to scare the fish away - and
so according to the wording of the bill, a person would be
interfering with a trout fisherman if he/she were walking around
splashing through the water. Does the language in the bill now
say that anybody who gets hypersensitive about "stream ethics"
can sue for full attorney fees?
MR. POUND opined, "The fact that we're dealing with a
'prevailing party' clause ... would eliminate the frivolous
lawsuits of that nature." He mentioned that much of the wording
in the bill is part of current statute and that HB 107 proposes
to add the aforementioned clause [to AS 16.05.791(b)]. He
offered his belief that this would not increase the number of
lawsuits, and that the prevailing party [clause] was originally
designed to address concerns pertaining to commercial fishing.
REPRESENTATIVE GARA, in response to a question, clarified that
the language which causes him concern is located in Section 1 of
the bill. That language is part of existing law, AS
16.05.790(a), and says in part:
a person may not intentionally obstruct or hinder
another person's lawful hunting, fishing, trapping, or
viewing of fish or game by
(1) placing one's self in a location in which
human presence may alter the
(A) behavior of the fish or game that
another person is attempting to take or view
REPRESENTATIVE GARA remarked that scaring fish away could
qualify as behavior addressed in the aforementioned paragraph
(1)(A); this, along with the proposed changes to AS
16.05.791(b), would make it financially rewarding for a person
to sue someone for scaring fish away because the person would be
able to get back all of his/her attorney fees. "It seems to me
that an unintended consequence would be to make annoyances that
people normally deal with now ... profitable to complain about,"
he added.
1:48:43 PM
MR. POUND offered instead that the plaintiff will still be
losing time and various other things and thus would not find it
worthwhile to pursue such a case.
CHAIR McGUIRE acknowledged Representative Gara's concern, and
suggested that the dialog on this issue continue.
REPRESENTATIVE GARA remarked that regardless of whether a person
would find it worthwhile to pursue a lawsuit, the bill does
allow a person to get back full attorney fees if he/she brings a
lawsuit because someone scared his/her fish away. "Fishermen
are pretty serious about what they do, and I can tell you that
people ..., when they deal with ... bad behavior at a fishing
stream, it ruins their day, and they would sue somebody over
it," he predicted. He asked that the sponsor consider changing
the bill so that it allows for the recovery of 80 percent of
attorney fees. Such a change, he opined, would still accomplish
most of the bill's goals, to punish someone for bad behavior,
without making it lucrative enough for someone who's had a bad
day [fishing] to go out and file a lawsuit.
MR. POUND said [the sponsor] wouldn't have an objection to such
a change. He pointed out, however, that the language in
Sections 3 and 4 has become a more important part of the bill
because the state has actually lost money by not having that
language in statute; such language would have eliminated some of
the lawsuits that Alaska State Troopers and wildlife protection
officers have been faced with.
REPRESENTATIVE GARA asked what the motivation for the bill is.
MR. POUND said that most of the motivation stems from
circumstances involving trapping [and hunting]: trap lines up
in the Interior have been cut, injured animals have been
released from traps, and people have come between a hunter and a
moose or caribou in order to keep the hunter from shooting it.
1:52:04 PM
REPRESENTATIVE COGHILL surmised that the increase in multi-use
activities on trails has created tension between different user
groups. For example, some of the activities now occurring on
trapping trails can spring traps, and some of the activities now
occurring on ski trails can damage snow machines. He mentioned
he has a concern regarding how to quantify or define physically
interfering or tampering with a person's viewing experience, for
example.
CHAIR McGUIRE suggested that the committee ought to ensure that
the behavior to which the bill can apply is intentional
behavior, and although the bill does specify "intentionally
obstruct or hinder", it goes on to also specify what the
behavior actually is; she noted that this language is part of
existing law, and that in order for the bill to apply, the state
will have to prove that someone did something intentionally.
REPRESENTATIVE COGHILL noted that some people might consider
viewing trees more pleasurable than viewing the skyline, and so
if one brushes a trail, that could "mess up somebody's view."
He offered an example wherein a person building a house
obstructed the view that another person had paid for - the
courts required the person obstructing the view to remove the
top story of his house. "As we get into more and more multiple
uses in Alaska, we better be really clear [about] what we're
talking about," he concluded.
1:56:10 PM
REPRESENTATIVE GRUENBERG mentioned that his wife is active in
creating dog parks, and he has concern that the creation of such
could run afoul of HB 107 as currently written even if that is
not the intent.
MR. POUND pointed out that the sponsor is just using existing
law as the vehicle for the proposed changes, which are intended
to address two actual cases. One proposed change is designed to
give the police more authority and ensure that they are not
inadvertently the subject of a lawsuit.
REPRESENTATIVE GRUENBERG cautioned against unintended
consequences.
1:58:05 PM
REPRESENTATIVE GARA said the bill appears to address situations
in which rafters or those in motor boats travel through water in
which someone is fishing for trout, for example; this is a
behavior that can anger those that are fishing. Under the bill,
lawsuits engendered by such cases could result in the plaintiff
being awarded full attorney fees.
MR. POUND remarked that such lawsuits could be filed under
existing law.
REPRESENTATIVE GARA countered that under the bill it will be for
"real money."
REPRESENTATIVE GRUENBERG asked whether it is the intent to "have
actual costs and [attorney] fees on appeal?" He opined that if
that is not the intent, then the bill would not alter Rule 508
of the Alaska Rules of Appellate Procedure.
REPRESENTATIVE COGHILL mentioned that the bill appears to
include licensed activities, except for [wildlife] viewing, and
so he is wondering if "that has any snags to it." He suggested
that there should be some mechanism in the bill to quantify
[obstructing and hindering].
CHAIR McGUIRE remarked that existing law, as detailed in the
bill, appears to raise concerns. she suggested that the sponsor
and members work together to come up with a committee substitute
(CS) or amendments that will address those concerns.
2:03:09 PM
REPRESENTATIVE GRUENBERG opined that the language currently in
existing AS 16.05.790(d) would seem to already include law
enforcement officers. If that is the case, why include the
change proposed by Section 2?
MR. POUND said that although it might seem that current law
already addresses situations involving law enforcement officers,
the court has ruled otherwise in a recent case where a "fish and
wildlife" helicopter was flying too low over commercial fishing
grounds.
REPRESENTATIVE GRUENBERG said he'd like to see whether that case
has been appealed. Just because a judge makes an erroneous
decision, it doesn't mean that the law has to be changed, he
remarked, noting that the such cases can be appealed.
MR. POUND offered his understanding that "they settled."
REPRESENTATIVE GRUENBERG suggested that the committee get a
legal opinion on whether current law does cover such situations.
CHAIR McGUIRE indicated that HB 107 would be held over.
HB 131 - ACCESS DEVICE & I.D. DOCUMENT CRIMES
2:05:50 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 131, "An Act increasing the criminal
classification of theft of an access device and of obtaining an
access device or identification documents by fraudulent means;
increasing the criminal classification for certain cases of
fraudulent use of an access device; and providing for an
effective date."
2:06:05 PM
BEN MULLIGAN, Staff to Representative Bill Stoltze, Alaska State
Legislature, sponsor, relayed on behalf of Representative
Stoltze that "access [identification (ID)] theft is a growing
problem in Alaska" and nationwide; between 2002 and 2004, the
number of complaints regarding access ID theft rose over 152
percent. Alaska currently ranks second [in the nation] in the
number of complaints issued per 100,000 people. House Bill 131
proposes to increase the penalty, from a class A misdemeanor to
a class C felony, for the theft of an access device, for the
fraudulent use of an access devise, and for fraudulently
obtaining an access device or identification document. The
proposed changes are meant to provide deterrence and punishment
for such crimes.
2:08:17 PM
SAM TRIVETTE, AARP; President, Retired Public Employees of
Alaska (RPEA), Alaska Public Employees Association/Alaska
Federation of Teachers (APEA/AFT), after mentioning that he has
been involved in the corrections industry for over 32 years,
said his experience has shown him that it is clear that law
enforcement resources are stretched to the "nth degree," and
that when such is the case, if a crime is felony, it will get a
lot much more attention than a misdemeanor. He relayed that at
a recent seminar regarding identity theft, there was testimony
by police officers acknowledging "how complicated this situation
is and how much the impact is upon seniors, especially, who
sometimes just don't understand the systems as they change over
the years." He relayed that the AARP supports HB 131 because it
thinks that by increasing the penalty for "this crime," the
chances are much more likely that police will get involved and
prosecute the crime. He noted that police have also relayed to
him that since many ID theft crimes are committed by people in
other states, if the crime is not a felony, law enforcement
agencies in those other states will essentially "blow you off."
Offering a personal example wherein his parents had items stolen
by caretakers, he opined that there is a need for sending a
strong message that law enforcement will use its best and
strongest efforts to prosecute such crimes as felonies.
2:11:17 PM
MICHELLE LOGAN, Detective, Anchorage Police Department (APD),
Municipality of Anchorage (MOA), after noting that she has
worked in the APD's fraud unit for the past three years,
testified in support of HB 131. She relayed that during the
past year and a half, she has seen a noticeable increase in the
number of identity theft reports. Some of the reports involve
crimes that are committed by perpetrators in Alaska, but often
ID theft originates in other states. She mentioned that victims
of ID theft have to spend a lot of time getting their credit
reports "back on track." Most ID theft the APD sees involves
credit card fraud, she remarked, adding that although HB 131 is
not specifically an ID theft bill, if it is passed, it will
greatly enhance the efforts of law enforcement to combat ID
theft and will give the APD the tools with which to put together
more meaningful cases for prosecution purposes.
MS. LOGAN, with regard to comments by Mr. Trivette, said that it
is not that law enforcement will "blow off" misdemeanor cases;
rather, there are just limited resources with which to pursue
misdemeanor cases. In fact, unless a crime is a felony, it
doesn't even get referred to the "detective division." She
indicated that she has experienced frustration when charging a
person with fraudulent use of an access device when the crime is
currently only a misdemeanor. She provided examples regarding
credit card theft wherein multiple charges were made but
individually the amounts being charged only warranted a
misdemeanor. In conclusion, she opined that adoption of HB 131
will send a message that Alaska is serious about protecting its
citizens against ID theft and is serious about prosecuting those
that perpetrate crimes of ID theft.
2:16:23 PM
JAY FOLEY, Co-Executive Director, Identity Theft Resource Center
(ITRC), relayed that the ITRC works one on one with victims of
identity theft in assisting them in clearing their names, from
the simple cases of credit card "skimming" and fraud, to the
most complicated criminal identity theft cases. Any and all
enhancement of penalties dealing with the subject of identity
theft will be a welcome relief, he remarked; all too frequently,
law enforcement agencies are taxed too greatly to pursue these
cases, and when they are fortunate enough to pursue them, it is
almost a mockery to the victim to have the court system rule
that the crime is a minor misdemeanor.
MR. FOLEY said that in the instances when a perpetrator does go
to court, he/she should face tougher penalties, which should act
as a deterrent to future identity thieves. Referring to a study
the ITRC released in 2003 regarding the aftermath of identity
theft, he said it indicates that on average, a victim will spend
about 600 hours cleaning up the mess left by the thief, will
incur up to $1,400 in expenses not including legal fees, and
will suffer from a wide range of emotional issues because of the
betrayal and a lack of support. He said that identity theft
victims in Alaska are imploring the legislature's consideration
of HB 131.
2:19:09 PM
REPRESENTATIVE GARA asked whether there are laws that prevent
the cardholder of a stolen credit card from being held liable
for the charges incurred by the thief.
MR. FOLEY said yes. Under the Fair Credit Reporting Act and
other federal laws, a cardholder is only responsible for the
first $50 of loss. A caveat, however, is that this limitation
only applies if the cardholder reports the theft promptly, so if
the cardholder doesn't notice the theft within a certain number
of days or fails to report it within that time period, then
he/she will become responsible for all charges.
REPRESENTATIVE GARA asked whether federal law preempts states
from regulating "that area," from saying that cardholders are
not responsible for credit card debt incurred without consent.
MR. FOLEY, although offering his belief that states would be
preempted from such, recommended that the legislature speak with
counsel of the Federal Trade Commission (FTC) further on that
issue.
STEVE CLEARY, Executive Director, Alaska Public Interest
Research Group (AkPIRG), opined that others have summed up "the
great merits" of HB 131, and relayed that the AkPIRG has been
trying to get more identity theft protections instituted in the
wake of the [recent] ChoicePoint Inc. security breach, which
resulted in nearly 150,000 consumers having their personal
information stolen. He mentioned that ChoicePoint had its
security breached several years ago as well, but never notified
those who became victims of identity theft because of it. He
raised the issue of possible amendments, for either this bill or
another, that would require mandatory notification when security
breaches occur and that would allow consumers to place a
security freeze on their account information. He mentioned that
the AkPIRG is hopeful that such changes to current law will be
made, and opined that HB 131 is a good first step in the
direction [of consumer protection].
2:23:09 PM
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), said she
agrees with some of the prior comments regarding the importance
of and concerns over identity theft. She said that when she
considers identity theft, she is thinking of what she called
"true identity and credit card theft," wherein a stranger comes
along and takes on another's identity. She mentioned a concern
regarding familial situations wherein a family member is using
or taking another family member's credit card or check, noting
that even if such were not used, just the taking of either item
could result in a felony charge.
MS. WILSON then raised the issue of fake IDs. She referred to
Section 4, which makes obtaining an access devise or
identification document by fraudulent means a class C felony,
and noted that AS 11.81.900(b)(30) defines an identification
document as:
"identification document" means a paper, instrument,
or other article used to establish the identity of a
person; "identification document" includes a social
security card, driver's license, non-driver's
identification, birth certificate, passport, employee
identification, or hunting or fishing license
MS. WILSON noted that under the aforementioned definition and
Section 4 of the bill, minors who acquire fake IDs will be
exposed to felony prosecution because they have used fraudulent
means to obtain an ID.
2:26:14 PM
REPRESENTATIVE COGHILL remarked that Ms. Wilson raised a good
point. He mentioned that sometimes in domestic situations,
people might be fighting over a checkbook, and questioned
whether a check would be considered an identification document.
MS. WILSON offered her belief that a check is an identification
document.
REPRESENTATIVE COGHILL posited, then, that an unintended
consequence in domestic dispute situations involving arguments
over a checkbook could be that one of the parties gets charged
with a felony. He suggested that the committee might want to
eliminate that potential.
RANDY RUARO, Assistant Attorney General, Legislation &
Regulations Section, Office of the Attorney General, Department
of Law (DOL), pointed out, however, that in domestic dispute
situations involving joint bank accounts, both parties have a
right to have the checks. Additionally, if a domestic dispute
didn't involve a joint bank account, before one of the parties
can be charged with identification theft, local law enforcement
would have to agree to investigate and to make the arrest. At
that point, the prosecutor could exercise his/her discretion to
charge the person at the felony level or at some "lesser
included" level. He acknowledged that Representative Coghill
has a valid concern, but surmised that the prosecutor's
discretion would provide a filter before a party in a domestic
dispute situation actually gets charged with a felony; also, a
jury would have to convict at the felony level, and the judge
would still retain the discretion to fashion an appropriate
sentence.
2:29:58 PM
REPRESENTATIVE GARA said he didn't think that the legislature
should pass laws and at the same time be hoping that the
prosecution won't enforce those laws. He also said he is not
sure that if the law specifies that certain behavior constitutes
a felony, that prosecutors have the discretion to charge the
person with a misdemeanor.
MR. RUARO offered his understanding that other statutes could be
used when the prosecutor doesn't want to charge someone with a
felony; for example, a person could be charged with "a simple
theft" or with some other type of lesser offense. Acknowledging
Representative Gara's concern, he suggested that John Skidmore,
Department of Law (DOL), could better address this issue.
REPRESENTATIVE GARA offered his understanding that when "a plea
deal" is proposed to the judge, he/she has to determine whether
the deal makes sense in light of the known facts, and so if the
law specifies that a situation involving a check, for example,
constitutes a felony, then it would be hard for the judge to
ignore the fact that the situation did involve a check and allow
a person to be charged differently.
2:32:21 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
mentioned that when she was a prosecutor, there were domestic
dispute cases wherein people wanted "the prosecution to deal, in
a criminal manner, with issues that were really domestic
issues," and prosecutors did have the authority not to
prosecute, and so did exercise that authority in such cases.
She also offered her belief that a check would not be considered
an identification document under the aforementioned definition;
although a check has commercial value, it is not a document that
one can use to establish identification.
CHAIR McGUIRE noted that Section 3 refers to an access device,
which is defined in AS 11.81.900(b)(1) as:
"access device" means a card, credit card, plate,
code, account number, algorithm, or identification
number, including a social security number, electronic
serial number, or password, that is capable of being
used, alone or in conjunction with another access
device or identification document, to obtain property
or services, or that can be used to initiate a
transfer of property
CHAIR McGUIRE noted that Section 4 refers to both access devices
and identification documents, and read from AS 11.81.900(B)(30)
[text provided previously] which defines an identification
document.
2:34:53 PM
REPRESENTATIVE GARA said he still has a concern that the
prosecution won't be able to charge situations involving fraud
by credit card, for example, differently than is being proposed
in the bill.
MS. CARPENETI pointed out, however, that "most of these" cases
are "plead out," and that the DOL has not, to date, experienced
any problems negotiating pleas on property crimes of "this"
nature. She said that because there are so many creative ways
for the judge and prosecutor to reach a just result, she is not
worried about problems arising. She, too, suggested that Mr.
Skidmore could better address this issue.
REPRESENTATIVE COGHILL asked how would one go about determining
whether someone has obtained an access device; he indicated that
he wants to know how "obtaining" becomes a felony.
MS. CARPENETI offered a personal example wherein her purse was
stolen, calling such [trespassory] taking, and also referred to
an example wherein the perpetrator gets someone's personal
information by going through his/her garbage.
REPRESENTATIVE COGHILL said that although he understands [how
the law would apply in cases involving] "regular thievery," he
is not sure he understands [how it would apply in cases
involving] what he called "high-tech thievery," such as when
people are talked into willingly providing personal information.
Could there be some argument that such information, if given
willingly, wasn't obtained through deception?
MS. CARPENETI said it would depend on what the people seeking
the information told the person they were getting the
information from, and again suggested that Mr. Skidmore could
better address this issue.
2:39:08 PM
CHAIR McGUIRE, using hypothetical examples, recapped members'
concerns for Mr. Skidmore.
2:40:20 PM
JOHN B. SKIDMORE, Assistant District Attorney, Third Judicial
District (Anchorage), Department of Law (DOL), after mentioning
that his duties include supervising the "property unit" and
relaying that his past experience includes prosecuting for the
DOL in other areas of the state, he said that the easiest way to
resolve a case at a lower level - to reduce a felony to a
misdemeanor - is to charge someone for an attempted crime; for
purposes of HB 131, doing so would allow the prosecution to
reduce the charge to a class A misdemeanor. There are also
varying levels of theft, he noted, and so it would be easy -
even in cases involving amounts over $500 - to simply charge
someone with theft in the third degree or with theft in the
fourth degree, instead of with theft in the second degree as
proposed in the bill; he noted that every day he resolves cases
involving theft of amounts over $500 as misdemeanors. Such is
the real world discretion that prosecutors have.
MR. SKIDMORE noted, with regard to the issue of prosecuting a
family member for taking a check, that a check is not included
in the statutory definition of an identification document, and
said that he cannot imagine a situation in which one would use a
check as a form of identification. Instead, a check is
statutorily defined as an access device; additionally, if
someone improperly uses a check, the bill won't apply because
such situations are already addressed by the laws pertaining to
forgery. He pointed out that children steal their parents'
checks all the time, and the prosecution has the discretion, and
often uses it, to determine whether it is appropriate to
prosecute someone in such cases under the existing [forgery and
theft] statutes. He offered his understanding that in order for
proposed AS 11.46.290(b) to apply, the person obtaining the
access device or identification document must do so with the
intent to defraud, and so elements other than merely taking an
access device or identification document must be taken into
consideration.
MR. SKIDMORE said he would echo prior testimony by the DOL
representative regarding discretion, which he opined, is built
into the criminal justice system in multiple layers. There must
first be enough evidence for the police to want to move forward
with a case and refer it to the prosecutor's office; the
prosecutor then uses discretion in determining whether it is
appropriate to charge a particular case and thus use up state
resources in seeking a criminal sanction against someone; and
the checks and balances on the police and prosecutor come from
juries and judges. In the occasional instances where familial
context cases are prosecuted, it is because they are just as
serious as all other theft cases or because the parents really
think there is a need for a child to be prosecuted; for example,
if the child has a drug addiction and can't be caught with the
drugs but can be charged with another felony offense, then the
child could be sentenced to probation only, with mandatory drug
treatment as a condition of probation.
2:46:51 PM
REPRESENTATIVE COGHILL indicated that Mr. Skidmore's comments
alleviate his concerns, and said he agrees with the intent of
bill. However, the bill proposes to make it a class C felony if
the value obtained from the use of the access device is $50 or
more. This would seem to make it easier to become a felon,
which has many repercussions. He asked whether using an access
device for several purchases under $50 would result in separate
criminal charges or whether the purchases combined would result
in a single criminal charge.
MR. SKIDMORE noted that existing AS 11.46.980(c) says, "In
determining the degree or classification of a crime under this
chapter, amounts involved in criminal acts committed under one
course of conduct, whether from the same person or several
persons, shall be aggregated." He opined that this means that
it would have to be shown that the multiple acts were all in one
course of conduct as opposed to several courses of conduct. He
characterized this as a fact-driven question, adding, "We do
often aggregate those types of cases, but you have to have the
appropriate facts that [show] it was all in one course of
conduct."
REPRESENTATIVE COGHILL opined that $50 seems too low, and asked
why they should lower the threshold for this particular felony
crime to that amount.
MR. SKIDMORE opined that identity theft is much more insidious
than "a straight" theft. For example, with a theft occurs
wherein a person steals an item or items from a store, the
offense ends when the perpetrator is caught - there are no more
repercussions to the victim from that theft. In contrast, when
an identity theft occurs, the consequences for the victim are
ongoing. He relayed that he'd recently heard someone on the
radio say that if one becomes the victim of identity theft,
he/she can be told: "Congratulations, you've just gotten a new
part time job; you will now spend countless hours trying to fix
your credit history and protect yourself," For some folks,
dealing with creditors and other people results in a tremendous
amount of trauma. He relayed an example from three years ago
wherein a woman living in Los Vegas had her identity stolen by
people who came to Alaska and started buying things; the woman
lost promotion opportunities and ultimately her job because she
missed days at work trying to deal with her creditors, and had
to undergo psychological counseling. And although such
repercussions may not occur when someone is only defrauded of
$50-$75, the insidious nature of identity theft warrants
lowering the threshold to $50, he opined.
REPRESENTATIVE COGHILL said that a $50 threshold for a felony is
"pretty low for me."
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 131.
2:52:36 PM
REPRESENTATIVE DAHLSTROM moved to report HB 131 out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE GARA objected for the purpose of discussion. He
said that he too is struggling with the proposed $50 threshold,
and noted that although the hope is that the increased penalty
will act as a deterrent, those that commit crimes don't read
statutes.
CHAIR McGUIRE asked whether he had a different threshold in
mind.
REPRESENTATIVE GARA indicated that he did not, at this time.
CHAIR McGUIRE mentioned that the bill has a House Finance
Committee referral.
REPRESENTATIVE GARA asked whether there are any other felonies
with a $50 threshold.
CHAIR McGUIRE said she did not think that there were, and
surmised that Mr. Skidmore's testimony indicated that one is
being proposed in the bill because of the insidious nature of
identity theft.
REPRESENTATIVE COGHILL mentioned that he is working on a bill
that will be addressing all felonies.
2:55:38 PM
REPRESENTATIVE KOTT said he shares some of the same concerns
that Representatives Gara and Coghill have expressed. Referring
to the argument that the crime the bill addresses is insidious,
he noted that the same argument could be made even if the
threshold were being lowered to $10, but people would still face
the same consequences associated with a felony that has a $50
threshold. He indicated that he would go along with an
amendment to raise the proposed threshold above $50.
CHAIR McGUIRE noted that the current threshold for [the felony
level crime of fraudulent use of access device] is $500.
REPRESENTATIVE COGHILL said that the "aggregated amount" was
what he was looking for. He offered his understanding that most
fraudulent uses of access devices probably involve amounts much
more significant than $50. He mentioned that he himself has had
to deal with this issue and, thus, he is sympathetic. However,
he relayed, he is also very cautious about creating a situation
whereby somebody becomes a felon over a $75 charge, since that
will result in repercussions for that person. He mentioned that
he is getting some comfort from the fact that fraudulent use
must be proven before a person can be convicted of a felony, but
that's the only comfort he is getting.
CHAIR McGUIRE relayed to Mr. Mulligan that members appear to be
struggling with the proposed threshold amount.
MR. MULLIGAN noted that even though a person stealing a credit
card might only charge $50 worth of merchandise or services,
there is the potential for that person to charge the maximum the
credit card will allow. With regard to the issue of altering
the proposed threshold, he surmised that the sponsor would like
some time to research the issue to determine an appropriate
amount.
REPRESENTATIVE DAHLSTROM withdrew her motion to move bill.
3:01:04 PM
REPRESENTATIVE DAHLSTROM said she shares the concerns raised
regarding the proposed threshold. She noted, however, that
there are consequences to having one's access devices and
identity documents stolen, some of which could include not being
able to close on a house or to lose a job. She mentioned that
she has had someone else's credit information show up on her
credit report, and that it took her two years to clear up the
situation.
CHAIR McGUIRE relayed her personal experience regarding
someone's fraudulent use of her debit card. She indicated that
although there is a policy call to make on this issue, there are
concerns with the bill that still need to be addressed. She
suggested that perhaps the sponsor could research what other
states do, and perhaps consider proposing a different threshold
amount.
REPRESENTATIVE GARA surmised that the insidiousness of stealing
someone's access device stems from the potential to keep using
it, so perhaps members' concerns regarding the $50 threshold
could be addressed via aggregating the amounts of repeat usage.
REPRESENTATIVE GRUENBERG relayed his personal experiences
regarding the fraudulent use of his credit card by an unknown
person and the attempted misuse of his credit card by a family
member. He said he is wondering what else is being done to
protect the consumer and address identity theft more thoroughly.
He asked where the crime is committed if a citizen of Alaska has
his/her credit card used fraudulently in California; he
indicated his assumption that such a crime would have been
considered as having been committed in California.
[Following was a brief discussion about which other bills,
currently and in the past, have pertained to credit card
companies and to fraud.]
[HB 131 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:08 p.m.
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