03/10/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB410 | |
| HB255 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 255 | TELECONFERENCED | |
| *+ | HB 410 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 10, 2008
1:18 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Bob Lynn
COMMITTEE CALENDAR
HOUSE BILL NO. 410
"An Act requiring state oil and gas leases to be construed in
favor of the state and against the person challenging the
state's interpretation of the lease."
- HEARD AND HELD
HOUSE BILL NO. 255
"An Act relating to dual sentencing of certain juvenile
offenders; amending Rule 24.1, Alaska Delinquency Rules; and
providing for an effective date."
- MOVED CSHB 255(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 410
SHORT TITLE: OIL & GAS LEASE TERMS
SPONSOR(S): REPRESENTATIVE(S) GRUENBERG
02/19/08 (H) READ THE FIRST TIME - REFERRALS
02/19/08 (H) JUD, RES
03/10/08 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 255
SHORT TITLE: DUAL SENTENCING
SPONSOR(S): REPRESENTATIVE(S) JOHNSON
05/04/07 (H) READ THE FIRST TIME - REFERRALS
05/04/07 (H) JUD, FIN
05/11/07 (H) JUD AT 1:00 PM CAPITOL 120
05/11/07 (H) Heard & Held
05/11/07 (H) MINUTE(JUD)
01/21/08 (H) JUD AT 1:00 PM CAPITOL 120
01/21/08 (H) Heard & Held
01/21/08 (H) MINUTE(JUD)
02/25/08 (H) JUD AT 1:00 PM CAPITOL 120
02/25/08 (H) Scheduled But Not Heard
03/03/08 (H) JUD AT 1:00 PM CAPITOL 120
03/03/08 (H) Scheduled But Not Heard
03/10/08 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
KURTIS GIBSON, Deputy Director
Division of Oil & Gas
Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 410, answered
questions.
JEFF LANDRY, Senior Assistant Attorney General
Oil, Gas & Mining Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 410, answered
questions.
JEANNE OSTNES, Staff
to Representative Craig Johnson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Reviewed the changes encompassed in CSHB
255, Version L, on behalf of the sponsor, Representative
Johnson.
REPRESENTATIVE CRAIG JOHNSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as the sponsor of HB 255.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 255, answered
questions.
ANTHONY NEWMAN, Program Officer
Division of Juvenile Justice
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 255, answered
questions.
QUINLAN G. STEINER, Director
Public Defender Agency
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 255, provided
comments.
GERALD LUCKHAUPT, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Spoke as the drafter of HB 255.
DWAYNE PEEPLES, Deputy Commissioner
Department of Corrections
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 255, answered
questions.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:18:22 PM. Representatives Holmes,
Gruenberg, Dahlstrom, and Ramras were present at the call to
order. Representatives Coghill and Samuels arrived as the
meeting was in progress. Representative Lynn was excused.
HB 410 - OIL & GAS LEASE TERMS
1:20:03 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 410, "An Act requiring state oil and gas leases
to be construed in favor of the state and against the person
challenging the state's interpretation of the lease."
1:21:32 PM
The committee took an at-ease from 1:21 p.m. to 1:24 p.m.
1:24:16 PM
REPRESENTATIVE GRUENBERG, speaking as the sponsor, relayed that
HB 410 will require that for state oil and gas leases any
ambiguity in the statutes be interpreted in favor of the state.
This concept is based on a clause in the form lease used by the
Alabama Department of Conservation and Natural Resources. This
legislation is based upon the November 2007 case, ExxonMobil
Corporation v. Alabama Department of Conservation and Natural
Resources, in which an attorney revised the standard lease form
from one that was more favorable to the lessee to one that is
more favorable to the state. In doing so, a uniquely state-
friendly lease was devised in an effort to maximize royalty
interest for the state. The clause at issue in the
aforementioned case was paragraph 27, which specifies "[i]n case
of ambiguity, this lease always shall be construed in favor of
the LESSOR and against the LESSEE." A number of the justices in
the aforementioned case believed that certain clauses weren't
ambiguous, and therefore didn't have to reach the construction
according to the clause. Furthermore, others felt that
paragraph 27 rendered the issue clear. In fact, that clause
alone caused a number of justices on the Alabama Supreme Court
to rule in favor of the state, which was worth millions of
dollars to the State of Alabama. The current lease form
contains a provision that says, "This lease is to be interpreted
in accordance with the rules applicable to the interpretation of
contracts made in the State of Alaska." He noted that a number
of cases in Alaska specify that when there is a contract of
adhesion, a party that drafts a contract on a take-it or leave-
it basis, it's construed more strictly against the drafter.
This [legislation] would change the interpretation of oil and
gas leases, such that it would require that the ambiguous
language be construed strictly in favor of the state and against
the person/entity challenging the state's interpretation.
1:29:54 PM
KURTIS GIBSON, Deputy Director, Division of Oil & Gas,
Department of Natural Resources (DNR), in response to
Representative Gruenberg, specified, speaking on behalf of the
administration, that the Division of Oil & Gas doesn't oppose HB
410. He characterized the legislation as primarily a legal
issue regarding how ambiguity in the lease itself should be
reviewed by the courts. In further response to Representative
Gruenberg, Mr. Gibson deferred to the Department of Law (DOL)
regarding whether this could potentially make a difference in
litigation for the State of Alaska. However, he offered his
opinion that to the extent HB 410 tilts the playing field in
favor of the state, it would favor the state. He noted that the
aforementioned is his unqualified and nonlegal opinion.
REPRESENTATIVE GRUENBERG asked if there are cases in which
lessees feel that certain clauses are ambiguous and argue with
the state, such that this would come into play.
MR. GIBSON replied yes, there are certainly times in which there
are ambiguities with regard to the lease form. To the extent
that those ambiguities would be ruled in favor of the state, it
would appear to benefit the state.
CHAIR RAMRAS inquired as to the meaning of ambiguous in the
context of HB 410.
MR. GIBSON reiterated that this is primarily a legal issue that
more or less deals with the legal interpretation of contracts,
and thus is probably best answered by DOL. As the state's
representative in many of these contractual issues, the Division
of Oil & Gas would certainly favor anything that would improve
the state's legal standing in the event of an ambiguity. Mr.
Gibson related his understanding that HB 410 doesn't directly
affect the lease forms as currently written. He characterized
the legislation as a prospective change. In further response to
Chair Ramras, Mr. Gibson clarified that from the standpoint of
the Division of Oil & Gas, the administration supports HB 410.
He mentioned his understanding that DOL supports HB 410,
although he said he isn't qualified to speak on behalf of DOL.
1:33:36 PM
REPRESENTATIVE HOLMES offered her understanding that the earlier
mentioned case in Alabama will likely be interpreted similarly
in Alaska. She then referred to page 10 of the Supreme Court of
Alabama's document, which says "When a contract is subject to
two reasonable but differing interpretations, it is ambiguous."
On page 19 of the same document it says "A term in a contract is
ambiguous only if, when given the context, the term can
reasonably be open to different interpretations by people of
ordinary intelligence." She opined that the aforementioned is
in line with her understanding that a situation in which two
reasonable interpretations of a section of a contract would be
when it's considered ambiguous.
CHAIR RAMRAS surmised that it sounds like a difference of
opinion. Therefore, he questioned when a difference of opinion
is considered to be ambiguous under a legal definition.
REPRESENTATIVE GRUENBERG informed the committee that the Alaska
Supreme Court has interpreted the term "ambiguous" twice. One
of those cases, Williams v. Crawford 982 Pacific 2d 250 Alaska
1999, specifies the following: "A contract is ambiguous only if
taken as a whole it is reasonably subject to different
interpretations." Representative Gruenberg surmised that a
contract or a clause could be considered ambiguous or not.
However, since it would be reasonable for there to be different
interpretations, the court would first have to find that each
interpretation was reasonable. If there are two or more
different reasonable interpretations, then the clause could be
held to be ambiguous. One of the 9th Circuit Court of Appeals
cases, Roberts v. Continental Insurance Company, says a policy
provision is ambiguous if susceptible to two reasonable
interpretations by a court.
1:39:57 PM
REPRESENTATIVE GRUENBERG referred to Amendment 1, and explained
that it is intended to address a typographical error in the
bill; Amendment 1 read [original punctuation provided]:
Line 10 - After "Section" - Delete "2"; Insert "1"
1:41:07 PM
REPRESENTATIVE GRUENBERG relayed that when reading [the Alabama
decision] it seemed the provision was very protective of the
state and might be worth reviewing, which ultimately resulted in
the introduction of HB 410.
1:43:23 PM
JEFF LANDRY, Senior Assistant Attorney General, Oil, Gas &
Mining Section, Civil Division (Anchorage), Department of Law,
explained that in this context ambiguous would be a term or
phrase in the lease that has two different but reasonable
interpretations. In such a situation, the court would have to
determine which party would prevail. Mr. Landry characterized
this as a very subtle area of the law in which DOL believes
Alaska's courts generally do a good job. If there are
ambiguities in the lease, normally the parties would turn to
extrinsic evidence to try to determine and ascertain the
expectations and intentions of the parties. For instance, there
could be contemporaneous communications between the parties when
the contract was entered into. It could also be course of
conduct by the parties. The court would weigh that evidence and
determine how to interpret that particular term or phrase in the
lease.
REPRESENTATIVE HOLMES, drawing from her experience as a contract
attorney, commented that the concept of ambiguity is fairly
common in contract law. Representative Holmes clarified that
just because two parties have differing views as to what
something means, it doesn't make it an ambiguous. In order to
be ambiguous, the court must find that both are reasonable
interpretations. She asked how, in the absence of the
provisions proposed in HB 410, the courts are interpreting the
lease provisions now.
MR. LANDRY recalled that the last oil and gas case in which the
court opined on ambiguous terminology was the Amerada Hess
litigation.
1:48:19 PM
REPRESENTATIVE HOLMES inquired as to what the courts might do
now without the proposed section.
MR. LANDRY acknowledged that the common law rule is that the
ambiguous terms would normally be construed against the drafter.
The aforementioned wasn't an issue in the Amerada Hess case
because the lease form was conducted through a regulatory
process. Therefore, the reasoning was that the public, and
presumably the oil companies, already had input into the lease
form. Additionally, Judge Carpeneti as well as others were
aware that the lease form was written by the oil companies and
folded into a regulatory process. The subsequent lease forms
have all been written by the Department of Natural Resources
(DNR), and thus the common law would call for those leases to be
interpreted against the drafter, the state. However, the Alaska
Supreme Court may not follow that rule. He opined that if there
was an ambiguous term, the court would look to extrinsic
evidence and review the course of conduct of the parties,
contemporaneous statements by the drafters, etcetera. He
reiterated that this is a very subtle area of the law and the
Alaska courts are very attuned to these issues, particularly
with respect to the state's oil and gas leases. Mr. Landry
said, "So, we don't really know what would happen." This
proposed legislation would upset the common law and would have
an impact on how the court would look at extrinsic evidence.
1:51:07 PM
REPRESENTATIVE GRUENBERG asked if the passage of HB 410 would
simplify and perhaps prevent a lot of lengthy and expensive
litigation on these points of contract interpretation.
MR. LANDRY answered that he wasn't sure. He noted that [HB 410]
would change the common law. To the extent possible, DNR, he
opined, should try to sweep ambiguous terms out of its leases.
Mr. Landry related his assumption that the standard proposed in
HB 410 is intended to only apply to the court system. He then
opined that the legislation almost forces the commissioner to
interpret ambiguous language in favor of the state, regardless
of the evidence. The aforementioned may be problematic, he
remarked.
CHAIR RAMRAS concurred.
MR. LANDRY, in response to Representative Gruenberg, said that
he read the Alabama case, which doesn't involve statute but
rather involves Alabama writing an entirely new state-friendly
oil and gas lease. The aforementioned lease has similar
language to the proposed statute in HB 410 embedded in the lease
form. Mr. Landry related his understanding that Alabama used a
prospective application. In further response to Representative
Gruenberg, Mr. Landry concurred that the justices that construed
the clause in the contract in the Alabama case didn't find it to
be problematic, but rather outcome determinative. He remarked
that it was the law of Alabama.
REPRESENTATIVE GRUENBERG asked if there would've been a
significant difference in the result in the Alabama case had it
been statutory language as opposed to a clause in the lease. He
questioned the difference; "wouldn't they have used it the same
way?"
MR. LANDRY said he isn't particularly familiar with the Alabama
courts.
REPRESENTATIVE GRUENBERG asked if there would make any
difference to Alaska courts whether the language is embedded in
the lease or a governing statute.
MR. LANDRY responded, "Probably so."
1:54:37 PM
REPRESENTATIVE DAHLSTROM asked what engendered the introduction
of HB 410: something in the past or a possibility in the
future.
REPRESENTATIVE GRUENBERG specified that he introduced the
legislation due to the possibility of [problems] in the future.
Representative Gruenberg explained that he came across the
Alabama case, which seemed to be an insightful way of protecting
the state's interests and a unique solution to the problem.
After not being able to correspond with the commissioner [in a
timely fashion], Representative Gruenberg said that he thought
it could be put into Alaska law.
REPRESENTATIVE GRUENBERG, in response to Chair Ramras, confirmed
that HB 410 would favor the state. In regard to concerns that
the legislation may dissuade [oil & gas] clients, Representative
Gruenberg pointed out that in Alabama that wasn't the case when
the clause was in place.
1:58:13 PM
REPRESENTATIVE DAHLSTROM inquired as to the sponsor's thoughts
regarding Mr. Landry's comment that HB 410 is problematic. She
then asked if it would be fair to institute this provision in
family law court.
REPRESENTATIVE GRUENBERG acknowledged that the term problematic
caught his ear, which is why he inquired as to Mr. Landry's
thoughts as to whether the Alabama Supreme Court justices who
found the clauses ambiguous found it to be problematic.
Representative Gruenberg opined that the justices didn't find
the clause problematic as the clause was applied. The justices'
opinions were short, succinct, and outcome determinative.
Representative Gruenberg said he understood Mr. Landry's answer
to not dispute his answer. In further response to
Representative Dahlstrom, Representative Gruenberg informed the
committee that similar clauses are sometimes used in family law
contracts, wills, and trusts. These are in terrorem clauses in
which in a will "if you dispute my interpretation of what I
wrote, you get nothing under the will." Such clauses have been
upheld, and thus there is precedent in the law for such. He
then recalled that some of [these clauses] are included in
family law contracts. He explained that factual background in
family law causes is usually not the same, although it may
sometimes be the same in pre-marital contracts. He related his
understanding that in family law these clauses apply strictly if
the marriage is very short, but less strictly if the marriage
continues. Therefore, if one challenges a contract after a
short marriage, he/she loses.
2:02:03 PM
REPRESENTATIVE HOLMES highlighted that this clause wouldn't
determine the outcome of all oil and gas lease challenges. This
clause, she opined, would only come into effect in a situation
in which the outcome of the challenge hinged on a term, phrase,
or section being considered ambiguous. Since the parties in oil
and gas leases are what's referred to as "sophisticated
parties," the chances of having ambiguous terms is limited.
"This is not outcome determinative for all lease challenges, it
would only be outcome determinative on specific points that
appear not to come up very often," she pointed out.
REPRESENTATIVE DAHLSTROM questioned then whether this
legislation proposes a law that's not really necessary.
REPRESENTATIVE HOLMES said that she's a bit troubled as there
are a lot of questions as to how a term would be determined to
be ambiguous. However, she opined that it's helpful to provide
clarity to contract law.
2:05:56 PM
REPRESENTATIVE GRUENBERG informed the committee that the goal of
the transactional attorney as opposed to a litigator is to keep
the clients out of court and to provide certainty and clarity in
the drafting of the agreement. The fact that this has arisen
only once shouldn't make the difference in this case because
Alaska is a young state and the large contracts are relatively
recent in development. Representative Gruenberg pointed out
that there aren't many of these cases because in most cases in
the Lower 48 oil and gas development doesn't occur between the
sovereign and the developer as it's mostly private parties who
own subsurface rights. However, when it's the sovereign
resources that are at stake it's a form of public land law, and
therefore the interests at stake are a bit different than they
would be in other types of oil and gas leases. Although there
may not be many of these cases, if the state can be saved from
litigation and have certainty in its favor in even one case,
then the precaution is well worth it because the stakes are so
large in each case.
2:08:30 PM
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 410.
2:08:40 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1
[text provided previously]. There being no objection,
Amendment 1 was adopted.
CHAIR RAMRAS relayed that HB 410, as amended, would be set
aside.
HB 255 - DUAL SENTENCING
2:10:55 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 255, "An Act relating to dual sentencing of
certain juvenile offenders; amending Rule 24.1, Alaska
Delinquency Rules; and providing for an effective date."
[Before the committee was the proposed committee substitute (CS)
for HB 255, Version 25-LS0914\E, Luckhaupt, 1/18/08, which had
been adopted as the work draft on January 21, 2008.]
The committee took an at-ease from 2:12 p.m. to 2:22 p.m.
2:22:07 PM
REPRESENTATIVE DAHLSTROM moved to adopt CSHB 255, Version 25-
LS0914\L, Luckhaupt, 2/22/08, as the working document. There
being no objection, Version L was before the committee.
2:22:53 PM
JEANNE OSTNES, Staff, to Representative Craig Johnson, Alaska
State Legislature, relayed that Version L doesn't include the
expansion of bill sentencing for youth, as specified in Section
1 of the prior versions. Section 1 of Version L adds arson in
the second degree as an offense, when committed by a 16- or 17-
year-old, eligible for dual sentencing. Under both the original
version and Version L, the use of dual sentencing is expanded so
that a previous adjudication isn't required when a 16- or 17-
year-old commits a class B felony against a person or commits
misconduct involving weapons in the first or second degree.
Section 2 in Version L doesn't create any changes, attempt to
clarify the existing process, and doesn't add the new subsection
proposed in the original version of HB 255. Ms. Ostnes
explained that instead Section 2 of Version L makes changes to
an existing subsection of the statute, AS 47.12.120(j), such
that when a juvenile who is dual sentenced receives his/her
orders, he/she will be required to remain under the supervision
of the department until the juvenile's 20th birthday. Other
juveniles are only required to remain under juvenile restriction
until their 19th birthday. However, that may be extended to the
20th birthday only if they consent to the extension and it's
specifically granted by a court. Juvenile's who are dual
sentenced will remain under department jurisdiction until their
20th birthday, unless a court discharges them earlier.
2:25:45 PM
MS. OSTNES pointed out that in HB 255, Section 3 added a new
condition, violation of a condition of probation, to the list of
factors in AS 47.12.160(d). However, Version L doesn't attempt
to add a probation violation to the list of activities that may
prompt the imposition of the adult sentence, instead Section 3
in Version L amends AS 47.12.160(a). To be consistent with the
changes in Section 2 of Version L that allow the court to retain
jurisdiction until the minor reaches 20 years of age, Section 2
now also clarifies that the court may modify or enlarge a
judgment, order, or discharge the minor in the exercise of the
court's power of protection over the minor or for the minor's
best interest. Section 4 of the original version amended the
burdens of proof necessary for imposition of the adult sentence
in a dual sentencing case, but Version L doesn't change the
existing burdens of proof. Instead, it amends AS 47.12.240(c)
to state that the department may transfer custody of a minor,
who is subject to dual sentencing, at least 16 years of age, and
for whom the department has filed a petition with the court to
impose the adult sentence, to the Department of Corrections
(DOC) and the minor may remain under DOC's custody pending
resolution of the petition. Ms. Ostnes acknowledged that [the
legislation] changed quite a bit, which she attributed primarily
to discussions she had with members or their staff in
conjunction with the Division of Juvenile Justice (DJJ).
REPRESENTATIVE GRUENBERG expressed concern with the language on
page 2, line 27 and page 3, line 5, which read "modify or
enlarge a judgment". He asked if, after a judgment is entered,
it can be modified to increase it or would that be a violation
of due process or double jeopardy. Secondly, can the court do
the aforementioned without triggering the right to a jury trial,
in so far as new evidence would be taken. He opined that it's
somewhat similar possibly to the use of an aggravating factor.
The U.S. Supreme Court has recently said that if an aggravating
factor that requires additional evidence is imposed, proof
beyond a reasonable doubt has to be shown and it has to go
before a jury. The Alaska Supreme Court has said that in a
delinquency case there is the right to a jury trial, proof
beyond reasonable doubt.
2:31:02 PM
REPRESENTATIVE GRUENBERG then turned attention to page 3, line
29 and opined that transfer of custody to the department should
[require] a hearing. In the 48 hours or so that it would take
to get that hearing set up, administrative segregation could be
[imposed].
2:31:58 PM
REPRESENTATIVE CRAIG JOHNSON, Alaska State Legislature, offered
his understanding that once a dual sentence is imposed, "you've
gone through the process. I don't know that we're talking about
additional evidence, but we're actually serving the sentence on
the same crime." Therefore, since the process has occurred and
the sentence was imposed simultaneously, it's not necessary for
a second hearing, he opined. He likened it to a request for
parole that is denied. Representative Johnson said that he
didn't believe it to be a double jeopardy situation because it's
imposed at the same time.
REPRESENTATIVE GRUENBERG said he would suppose that it would
depend upon the circumstances of the case as to whether new
evidence is taken. He suggested that the term "enlarge" may be
ambiguous, and therefore it may require [definition]. He
explained that his concern is in regard to if "enlarge" means to
increase in size a sentence that was already imposed and if
that's based on new evidence, if there is a jury trial involved.
2:34:42 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), pointed out
that this language is part of existing law. She explained that
juvenile adjudications aren't criminal matters, but rather are
civil matters. Therefore, juveniles who have been adjudicated
are those who committed an offense that would've been a crime
were the juvenile an adult. This requires a hearing to enlarge
or change a disposition of a child, it's not imposed
unilaterally. As long as it is related to the juvenile
adjudication/disposition, there wouldn't be a constitutional
concern, she opined. She noted that it wouldn't be enlarged
absent a hearing.
REPRESENTATIVE GRUENBERG recalled that there are a series of
cases that provide juveniles many constitutional protections in
delinquency cases. He related his understanding that the right
to a jury trial and double jeopardy are constitutional
protections in delinquency cases.
MS. CARPENETI noted her agreement, and added that the sponsor
was correct in comparing the process to that of a probation
revocation hearing when there is concern regarding the behavior
of a child under their supervision.
2:36:51 PM
REPRESENTATIVE GRUENBERG asked if a judgment can be enlarged in
a probation hearing for an adult.
MS. CARPENETI said that she isn't familiar with that term in the
criminal justice field for adults, but [the court] can certainly
impose time in jail that has been suspended.
REPRESENTATIVE GRUENBERG said that's not what he's talking
about. He clarified that he's referring to the technical term
"enlarge." He opined that the term of incarceration couldn't be
increased to more years for an adult probationer.
MS. CARPENETI confirmed, "You certainly couldn't add time that
wasn't imposed in the beginning."
REPRESENTATIVE GRUENBERG stressed that the aforementioned is
about what he's concerned. Therefore, if it can't do so for an
adult, can it constitutionally be done for a child, he
questioned.
MS. CARPENETI suggested that it would be helpful to have
examples of what is done when the adjudication is enlarged. She
said she didn't believe time is added.
REPRESENTATIVE GRUENBERG expressed the need for the term to be
carefully defined in order to avoid constitutional problems,
particularly in relation to the Blakely case.
MS. CARPENETI related her belief that Blakely isn't involved in
this area of the law, but rather would be involved in the
disposing of the juvenile. Blakely isn't used afterwards when
the juvenile is under the supervision of the court and the
juvenile hasn't complied with conditions. She, again, suggested
that concrete examples may be helpful, and reiterated that this
law has been in place for a long time.
2:39:31 PM
ANTHONY NEWMAN, Program Officer, Division of Juvenile Justice,
Department of Health and Social Services (DHSS), said that in
the juvenile justice system juveniles are routinely placed on
probation while participating in a rehabilitative program of
some kind. The distinction is that these aren't sentences but
rather are rehabilitative programs. The judge will bring the
juvenile and his/her family along with the probation officers to
the court for the hearing and can extend the probation service
up to a year or two. The aforementioned, he noted, happens
frequently.
2:42:47 PM
REPRESENTATIVE GRUENBERG asked Mr. Newman to define the term
"enlarge" as used in HB 255.
MR. NEWMAN said that he hasn't heard the term "enlarge" applied
to the juvenile case, although the action of extending a
juvenile disposition happens routinely. In further response,
Mr. Newman confirmed that extending a juvenile disposition
[happens routinely] for a probation violation. The initial
disposition order occurs after the department receives
commitment or supervision orders for up to two years or up to
the age of 19.
REPRESENTATIVE GRUENBERG surmised, per the language on page 2,
line 27, that could result in a sentence of more than two years.
He then posed a scenario in which a juvenile is committed to the
department for two years on his/her 14th birthday. At age 15,
that same juvenile violates a term of his/her probation. In
such a situation, could there be a modification order that would
extend the time in which the juvenile is committed beyond a
total of two years from the initial date.
MR. NEWMAN replied yes. In further response to Representative
Gruenberg, Mr. Newman said he wasn't aware of that being
challenged.
MS. CARPENETI, in response to Representative Gruenberg, said
that she would have to research whether that's double jeopardy.
She offered her belief that it has surely been litigated.
REPRESENTATIVE GRUENBERG opined that the term "enlarge" seems to
allow what he's concerned about. He reiterated his concern
regarding the constitutionality of [allowing a juvenile
disposition to be enlarged.]
2:46:42 PM
REPRESENTATIVE GRUENBERG expressed concern with page 3, line 29,
and whether there could be a transfer of custody to the
department for a probation violation without a hearing. He
related his understanding that with dual sentencing, normally if
the adult incarceration portion of that is to be imposed, there
would have to be a second hearing.
MR. NEWMAN replied yes.
REPRESENTATIVE GRUENBERG opined that he doesn't want paragraph
(4) on page 3, line 29, to be interpreted as allowing the
department to "end run" that requirement of a hearing. He
expressed the need to have language that prevents the
aforementioned. To that end, he suggested on page 3, line 29,
inserting the language ", after the hearing," following "and".
MS. CARPENETI directed attention the language "pending
resolution of the petition." located on page 3, lines 30-31, and
pointed out that there would be a hearing on the resolution of
the petition.
REPRESENTATIVE GRUENBERG acknowledged that this [addresses] a
temporary transfer to an adult facility. He emphasized the need
for there to be some kind of truncated hearing to support the
transfer on a temporary basis.
2:48:27 PM
MS. CARPENETI suggested changing the age referenced in paragraph
(4) on page 3 to 18.
REPRESENTATIVE GRUENBERG commented that such language would
work.
CHAIR RAMRAS inquired as to how a minor could be 18 years of
age.
MR. NEWMAN clarified that the minor can be 18 years of age
because juvenile jurisdiction extends through age 19. As
applied in the chapter [of Section 4] a minor means anyone under
juvenile jurisdiction.
REPRESENTATIVE SAMUELS posed a situation in which a 16-year-old
is going to the adult system, but is held in the [local] youth
center. He suggested that the youth center wouldn't want a
juvenile going to adult jail at the youth center.
MR. NEWMAN noted his agreement, adding that's why the language
referring to the 16-year-old was utilized. He noted that there
are other options, such as transferring the juvenile to another
youth facility if it would be too difficult for the staff.
REPRESENTATIVE SAMUELS pointed out that juveniles at the youth
centers are being rehabilitated. However, once an individual is
to go to an adult facility, the argument in previous years has
been that juveniles shouldn't be in the youth facility. He
emphasized that he wouldn't want to send a juvenile who knows
he/she is going to adult jail to associate with those [the youth
center] is trying to rehabilitate.
2:51:00 PM
MS. CARPENETI related her understanding that Representative
Gruenberg's concern is that it's pending the adjudication of the
petition. The concern, she opined, is how to deal with a 16- or
17-year-old before it's resolved that the he/she should go to
adult jail.
REPRESENTATIVE COGHILL surmised that it's within the discretion
of the court.
MS. CARPENETI confirmed that to be the case. She also pointed
out that language on page 3, lines 12-13, specify "a minor may
be incarcerated in a correctional facility", which offers
discretion also.
REPRESENTATIVE HOLMES informed the committee that things such as
the failure to complete a rehabilitation program or to comply
with terms of a restitution order can cause a petition to be
filed under AS 47.12.160(d). However, those might not
necessarily trigger the imposition of an adult sentence.
Representative Holmes said, "If you do have somebody ... under
dual sentencing who commits a heinous crime and you think that
they are going to ... end up in a adult facility, then maybe it
makes sense to have them there, pending the resolution. But, if
this is more of a failure to complete something and they may
continue to stay under juvenile jurisdiction, then it seems
counter-intuitive to hold them in an adult facility and then
send them back down." Perhaps, there needs to be a hearing to
determine where the person should be held, she suggested.
2:54:30 PM
REPRESENTATIVE SAMUELS offered his understanding that the system
wouldn't file a petition if a restitution payment has been
missed. The petition, he emphasized, will be filed when the
desire is to move the juvenile to the adult system.
MR. NEWMAN concurred with that summation. He specified that the
idea the [department] would seek to impose the adult sentence
because the youth has failed to meet the terms of a
rehabilitation program is meant to apply to the juvenile who has
exhausted the system. Therefore, it's probably an 18- to 19-
year-old at that point.
REPRESENTATIVE GRUENBERG pointed out that there could be a
situation in which there's a petition to place the minor in an
adult facility and it will take some time before the hearing can
occur. That hearing would basically be a trial. In the
meantime, there needs to be some sort of hearing in which
evidence is taken and the right to cross examination is
afforded. He likened the hearing to those for a temporary
restraining order, which is usually fairly small. The hearing
would provide the judge the opportunity to make a determination,
which he opined is better than merely changing the age. While
the aforementioned is accomplished, the juvenile could be placed
in administrative segregation or something similar.
Representative Gruenberg recalled talking with the sponsor about
an amendment that could be addressed in the House Finance
Committee.
2:57:49 PM
REPRESENTATIVE JOHNSON confirmed that to be his understanding as
well and would carry such an amendment to the House Finance
Committee. However, he acknowledged the chair's desire to send
House Finance Committee as finished legislation as possible.
REPRESENTATIVE GRUENBERG noted his preference to address such an
amendment in the House Finance Committee.
2:58:21 PM
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
QUINLAN G. STEINER, Director, Public Defender Agency, Department
of Administration (DOA), relayed that HB 255 scales back the
expansion previously put forth in the legislation to a more
manageable expansion. With regard to the question of the
transfer, he opined that it doesn't really hurt to have a
hearing for a transfer of custody under the earlier mentioned
circumstances. "If you win, later on, a "PTR" hearing, that
person could've spent a substantial amount of time in an adult
facility and then be immediately transferred back with the
skills of an adult facility into the juvenile facility," he
related. [A hearing prior to a transfer] wouldn't take a lot of
time as it would be akin to a bail hearing.
3:00:25 PM
REPRESENTATIVE COGHILL questioned whether, at sentencing, a
transfer would be contemplated since the person would be
retained under the jurisdiction of the court.
MR. STEINER related his interpretation that Section 4(c)(4)
refers to a transfer under AS 47.12.160(d), which seems to be a
probation violation. He said he read the language to mean that
theoretically one could be transferred merely on the filing of
the petition. In further response to Representative Coghill,
Mr. Steiner confirmed that the person would have a juvenile
sentence and an adult sentence.
REPRESENTATIVE COGHILL surmised then that the court, upon
finding a failure under AS 47.12.160(d), would anticipate the
need to have the hearing if it retained jurisdiction.
MR. STEINER responded that it doesn't seem that a hearing would
be automatic. It seems that a transfer could occur
automatically, and therefore the juvenile could be moved to an
adult facility without a hearing. The hearing regarding whether
that person has committed a violation would come later or a
hearing could be requested asking that the transfer be returned
to the juvenile facility. Although he said he was sure such a
hearing would be given, nothing in statute requires it.
3:03:17 PM
VICE CHAIR DAHLSTROM noted her agreement with Representative
Samuels earlier comments. She then related her belief that it's
better to leave the age at 16 years of age due to the heinous
nature of the crimes.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
MR. NEWMAN informed the committee that if the age is changed to
18 years of age and that individual commits a subsequent felony
or misdemeanor, he/she will be recognized as an adult and be
placed in an adult facility. Therefore, changing the age to 18
doesn't really accomplish anything. The division, he explained,
was looking for some sort of trigger for the dangerous juvenile,
but before the transfer of custody there was the desire to place
a guard on the [department]. Without the filing of the
petition, the department could transfer custody at any time.
Therefore, there was the desire to have some sort of trigger to
enable the transfer of custody, while limiting it in some way.
The hearing is to determine the resolution of that petition.
3:05:24 PM
CHAIR RAMRAS surmised that the question is whether the age
should be 16 or 18 and if the age is 16, whether there should be
an interim hearing to provide an additional safeguard. He then
asked if the committee is fairly comfortable with the remainder
of dual sentencing in Version L.
REPRESENTATIVE SAMUELS, referring to the language on page 3,
lines 3-7, expressed concern regarding the best interest of the
people, the victim, and "the minor's best interest." He said,
"I've got a specific question on the people's best interest and
the victim's best interest as opposed to a court coming in and
saying just the best interest of the minor sometimes makes me
uncomfortable."
REPRESENTATIVE GRUENBERG offered his recollection that prior
testimony had indicated that the court should also consider the
protection of the public.
MR. NEWMAN recalled that comment, and suggested that it would be
a quick amendment to add the following: "for the protection of
the minor, minor's best interest, and the best interest of the
public."
3:07:17 PM
REPRESENTATIVE SAMUELS, in response to Representative Gruenberg,
confirmed that the aforementioned [suggested language embodies]
the concept he was seeking.
MS. CARPENETI, in response to Representative Gruenberg,
reiterated that ["enlarge"] is in current law and has been used
and applied for years. In further response to Representative
Gruenberg, Ms. Carpeneti suggested that the drafter may be able
to explain the meaning of "enlarge."
3:08:52 PM
REPRESENTATIVE COGHILL opined that part of the issue with dual
sentencing is when criminal law is mixed with Title 47 law,
which is primarily civil in nature. The best interest of the
child is almost always the standard in Title 47, he pointed out.
At this point, the best interest of a minor who is a convicted
of a felon is probably within the prison, he said.
REPRESENTATIVE DAHLSTROM related her understanding that if the
age is changed from 16 to 18, this legislation isn't necessary.
In situations in which the juvenile offender has committed a
heinous crime, there is a constitutional obligation to
[consider] what's in his/her best interest. However,
Representative Dahlstrom opined that the best interest of the
public and the victim rises above the best interest of the
juvenile.
MS. CARPENETI clarified that raising the age to 18 would negate
the need for [paragraph (4) on page 3, lines 28-31].
MR. NEWMAN related his understanding that the issue is when a
juvenile age 16 has been dual sentenced and that juvenile
commits another offense, where will that juvenile be held until
it's resolved whether the adult sentence will be imposed. In
Version L, the department may transfer such a juvenile to an
adult facility awaiting resolution of the petition.
MS. CARPENETI pointed out that as specified on page 3, line 12,
it's discretionary with the court, which is current law.
3:11:38 PM
REPRESENTATIVE HOLMES remarked that she would be happy to leave
the age at 16, but require a quick hearing to determine that the
juvenile is to be held in an adult facility.
REPRESENTATIVE SAMUELS posited that it could take years to have
the aforementioned hearing. In the meantime and in the worst
case scenario, where is such a juvenile placed, he asked. The
choices are to place the juvenile in the adult system and
attempt to segregate him/her from the general population or
place him/her in the most secure juvenile facility.
Representative Samuels charged that an expedited hearing doesn't
necessarily result in an expedited resolution.
REPRESENTATIVE GRUENBERG noted that he took exception to that.
He informed the committee that he has practiced in this area of
law and that an expedited hearing on a temporary placement
results in a decision right away.
3:13:23 PM
REPRESENTATIVE SAMUELS, in disagreement with Representative
Coghill's earlier statement, suggested that the best interest of
the minor is to eliminate all the restitution and let the minor
out of jail.
REPRESENTATIVE GRUENBERG informed the committee that the
language "best interest" is a legal term of art that doesn't
mean what the child wants. In these cases, a guardian ad litem
can look out for the best interest of the minor and an attorney
can represent what the child wants, which are specifically
different. The aforementioned is discussed in the Veasey v.
Veasey case, which is a child custody case.
REPRESENTATIVE SAMUELS noted his disagreement, stating that
[Version L] proposes to give all jurisdiction to the court
including restitution to the victim. He deferred to DOL
regarding how to remedy this.
3:15:47 PM
REPRESENTATIVE GRUENBERG remarked that this returns to his
earlier concern regarding whether the courts can legally and
constitutionally enlarge the original punishment. He said that
although he objects to having the protection of the public
[over] the protection of the minor or what's in the minor's best
interest, he doesn't mind having it be something that the court
can consider as well.
3:16:57 PM
MS. CARPENETI pointed out that the language in Section 3 is
talking about extension of the jurisdiction of the court, not
the powers of the court to order restitution. Ms. Carpeneti
clarified that the provision refers to how long [the court]
deals with a child under the specified circumstances. This
provision provides the court one more year. Ms. Carpeneti said
that she wouldn't be concerned that any of the powers of the
court are being changed, in terms of what it ordered or what
adult sentence it imposed in the first place. The provision
simply allows, under these circumstances, that if DJJ doesn't
request the adult sentence to be imposed, DJJ is allowed to
supervise the child for another year.
3:18:12 PM
REPRESENTATIVE GRUENBERG surmised then that originally the court
has jurisdiction for two years or until the child becomes 19
years of age, whichever occurs first. If the child breaks
probation, the court can extend probation until age 20.
MS. CARPENETI explained that generally juvenile jurisdiction
over a child ends at age 18, although it can be extended to age
19. This legislation provides that for a person who is dual
sentenced, DJJ jurisdiction could last until the person reaches
the age of 20 unless there is a procedure in which the juvenile
court releases the person earlier.
REPRESENTATIVE GRUENBERG further surmised then that would be
imposed at the initial disposition.
MR. NEWMAN and MS. CARPENETI replied yes.
REPRESENTATIVE SAMUELS asked whether placing a period following
the word "minor" on page 3, line 6, accomplishes anything.
MS. CARPENETI related her belief that the drafter used the
language to mirror other language giving DJJ an additional year
of supervision if the minor isn't given a dual sentence.
3:20:53 PM
GERALD LUCKHAUPT, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency (LAA), speaking as the
drafter, explained that Section 3 was included because as the
last group of changes were being made he noticed that the first
sentence of AS 47.12.160(a) applies to minors receiving dual
sentences. He noted that the first sentence is existing law
that relates how the court can stay the execution, modify, set
aside, revoke, etcetera. However, the dual sentencing statute
doesn't consider that a court can set aside the dual sentence or
set aside the juvenile sentence as long as the adult sentence
isn't hanging over it. Therefore, Mr. Luckhaupt opined that the
application of that section needed to be cleaned up such to only
allow the things the dual sentencing statute considers a court
can do, which are to enlarge or modify a judgment. He pointed
out that any order a court enters in a juvenile context is never
longer than two years. Those orders are regularly enlarged for
those who aren't 18 years of age. Those orders have to be
enlarged if the juvenile is found to still need commitment to an
institution or to the department. That's the way the juvenile
system works because a limit of two years has been established
to re-examine what's occurring with the juvenile and make the
department continue working on reformation and rehabilitation of
the juvenile. Basically, the exact language as in the prior
version was used, minus the things offensive to a dual
sentencing approach. He specified that the dual sentencing
approach doesn't allow the juvenile sentence to merely be set
aside and ended. He noted that the delinquency sections were
drafted rather loosely in the 1990s and that "stuck out" as he
tried to finalize the approach. He related that the language
merely mirrors existing language and eliminates the principles
that don't fit into the dual sentencing approach.
3:24:50 PM
REPRESENTATIVE SAMUELS said he finds it difficult to think of a
circumstance in which it would be in the minor's best interest
to have the dual sentence imposed.
MR. LUCKHAUPT pointed out that the provision doesn't come into
play until after the dual sentence has been imposed. The
language in Section 3 and the remaining sections in AS 47.12
don't apply to a criminal dual sentence. If the court finds one
of the five violations, it has to impose the adult sentence. At
that point, nothing about the sentence will be governed by Title
47, but rather will be governed by Title 12, the criminal code.
Therefore, this only applies to the limited delinquency
judgment.
REPRESENTATIVE SAMUELS related his understanding then that the
legislation extends the age from 19 to 20. Therefore, he
questioned whether the court could "do away with the adult
sentence at anytime."
MR. LUCKHAUPT replied no.
CHAIR RAMRAS requested that someone review the five
[violations].
3:27:15 PM
MS. CARPENETI specified that the five [violations] are the
following: commits a subsequent felony offense; commits a
subsequent offense against a person that is a misdemeanor and
involves injury to the person or the use of a deadly weapon;
fails to comply with the terms of a restitution order; fails to
comply; fails to engage in or satisfactorily complete a
rehabilitation program ordered by the court or required by a
facility; juvenile probation officer; or escapes from a juvenile
or other correctional facility.
REPRESENTATIVE COGHILL pointed out that the aforementioned five
[violations] are in Title 47, which is under the civil
protection of children.
MR. NEWMAN highlighted that the aforementioned five [violations]
are discretionary in that the department has the discretion to
petition for imposition of the adult sentence when one of the
five violations occurs; it's not mandatory.
CHAIR RAMRAS surmised then that it's discretionary in the
juvenile court system, but once one of the five [violations] has
been cited by DJJ, the court "shall" impose an adult sentence.
MS. CARPENETI interjected that it must be proven, it's not just
a petition.
3:29:10 PM
MS. CARPENETI, in response to Chair Ramras, clarified that there
has to be a hearing on the petition. The question of the age,
16 or 18, is about where to place the child after the petition
has been filed. In order for the adult sentence to be imposed
there has to be a hearing and a fact finding. In response to
Representative Holmes, Ms. Carpeneti specified that the five
[violations] are located in AS 47.12.160(d).
MR. LUCKHAUPT remarked that it would be in the minor's best
interest for the court to extend the jurisdiction to the age of
20 in certain cases. The aforementioned would be because the
minor hasn't been rehabilitated or reformed.
REPRESENTATIVE COGHILL surmised then that under Section 4, the
best interest of the minor would be to keep the minor in DJJ
custody until the minor shows that he/she has been
rehabilitated/reformed.
MR. LUCKHAUPT likened it to what would occur if the fact that
there were any juvenile proceedings at all was ignored. He
posed a situation in which an offender had already been found to
be guilty at age 16, he/she would be held in an adult
institution. Mr. Luckhaupt said he is equating the filing of
the petition to the filing of information or an indictment. In
that case, a juvenile wouldn't be held in a juvenile institution
but rather an adult institution. The situation is one in which
the minor has already been indicted and so the question is
whether to impose the sentence. He related his understanding
from Mr. Newman that the desire is to address situations in
which minors aren't acting like minors and are hurting other
minors in the facility. [The division] feels it can't protect
the other minors and needed to do something quickly, he said.
3:33:36 PM
REPRESENTATIVE COGHILL opined that the question seems to be in
regard to where to hold the minor when transferring from a minor
facility to an adult facility. With regard to the question as
to whether the guiding factor would be in the best interest of
the child, he related his understanding from Mr. Luckhaupt, the
drafter, that under any other charge the minor would be held in
the appropriate prison. Representative Coghill suggested that
the minor would be treated as a minor in the juvenile system
until the minor has been shown to have failed one of the five
criteria. However, if the minor is guilty of a felony, then
that minor is likely to be a bad actor in the juvenile system
and be hugely disruptive.
REPRESENTATIVE SAMUELS noted his agreement with Chair Ramras
that his concern is that minors who are going to end up in an
adult facility will be an especially bad influence on those
minors in the juvenile facility who can be rescued, saved, and
rehabilitated. Representative Samuels then noted his agreement
with Mr. Luckhaupt in that as soon as the charging document
refers to a felony, there won't be a discussion but rather the
minor will be charged and it's left to the prosecutor.
3:36:07 PM
REPRESENTATIVE GRUENBERG reminded the members that if a minor
commits one of these crimes, the minor could be charged with a
new crime and then bound over to be tried as an adult. In
virtually all of these cases the state has a choice, "but
they're choosing to treat it as a probation violation.
Representative Gruenberg then noted that the committee should
have an amendment that he may want to offer.
3:37:15 PM
The committee took an at-ease from 3:37 p.m. to 3:39 p.m.
3:39:43 PM
REPRESENTATIVE GRUENBERG made a motion that the committee adopt
Conceptual Amendment 1, as follows:
Page 3, line 28:
Delete "and"
Page 3, line 29, following "sentence"
Insert "and a court, following a hearing, has
approved the interim transfer of the minor,"
CHAIR RAMRAS offered his understanding that Representative
Samuels objected.
MR. LUCKHAUPT, in response to Representative Holmes, explained
that Conceptual Amendment 1 has three parts before the minor can
be transferred. The three parts are as follows: the minor must
be at least 16 years of age, a petition has been filed, and
following a hearing a court approves the interim transfer of the
minor. Once the aforementioned criteria is met, the department
may transfer the minor to an adult institution. He explained
that the aforementioned is to allow the transfer of the minor
prior to the hearing on the petition. Once that occurs and the
court finds the existence of the five [criteria], the minor
serves the adult sentence at that point and is subject to the
criminal sentencing and goes to a criminal institution. This
would apply to the hearing that Representative Gruenberg wanted
to go along with the filing of the petition.
REPRESENTATIVE COGHILL related his understanding that the
language specifies the transfer of the minor from the Department
of Health and Social Services (DHSS) and the Department of
Corrections would occur pending the resolution of the petition.
Therefore, a petition can be filed and the minor can be
transferred pending the resolution of the petition.
REPRESENTATIVE GRUENBERG noted that's the case under the current
language of the legislation.
MR. LUCKHAUPT said that for a 16-year-old minor a petition is
filed and a hearing regarding the desire to transfer the minor
is held, then the minor can be transferred pending the
resolution of the petition.
3:43:21 PM
REPRESENTATIVE GRUENBERG said that he's offering Conceptual
Amendment 1 because it can be a considerable period of time
before the hearing on the petition is held. During that period
of time, the minor would be in an adult population, which may or
may not be appropriate. If the petition is denied, the minor is
returned to the population in the juvenile detention center. At
that point, the minor may have been the victim of some assaults
at the [adult facility]. Therefore, Representative Gruenberg
opined that it's important to have a hearing prior to taking
that first step in order to avoid endangering the minor or those
at the juvenile facility to which the minor is returned. He
then asked if federal law requires a hearing prior to placing a
minor in an adult facility.
MR. LUCKHAUPT related that there are issues with federal law
regarding pre-trial incarceration of minors, including those who
are runaways and minors facing delinquency proceedings. The
situation this bill addresses is a minor who has been convicted
of an adult criminal sentence, which is part of the dual
sentencing approach. Mr. Luckhaupt said that he didn't know of
any rules that address "the conviction after a conviction of a
child that restricts a minor being in an adult institution."
MR. NEWMAN informed the committee that Representative
Gruenberg's question is being asked of the U.S. Office of
Juvenile Justice and Delinquency Prevention. Because the minor
[being addressed in HB 255] has received a dual sentence the
minor has been adjudicated in juvenile court "where those rules
apply" as well as sentenced in adult court, it's not clear that
"those rules would apply to a dual sentenced youth who has
received that adult sentence."
REPRESENTATIVE GRUENBERG surmised then that it's not known
whether [this proposed legislation] will violate federal law.
MR. NEWMAN remarked, "We don't believe that it does, but we're
seeking confirmation." In further response to Representative
Gruenberg, Mr. Newman said that he hasn't obtained any ruling.
REPRESENTATIVE GRUENBERG expressed concern as he said he didn't
want the state to potentially violate federal law. He remarked
that it's legally much safer to do what he's proposing with
Conceptual Amendment 1.
3:46:12 PM
CHAIR RAMRAS said that although he shares Representative
Gruenberg's concern, he is satisfied with the current language
of the legislation.
REPRESENTATIVE SAMUELS pointed out that 16-year-old minors are
already placed in the adult prison when charged. These are
juveniles who have been convicted of an underlying crime and
have violated one of the five offenses listed. The state has
already made its policy choice to protect the public and protect
the victims of these crimes. Representative Samuels said that
he doesn't buy the argument that there will be a quick hearing.
He related his preference for the existing language of the bill.
CHAIR RAMRAS related his understanding that a minor who commits
a violent criminal offense was already being waived into the
adult sentence. Therefore, the dual sentencing was designed for
a minor who had committed a class A misdemeanor or felony and
was going to have a dual sentence. If one of the five factors
is violated, then that minor would be remanded into the adult
system. This is a juvenile, he clarified, who committed a crime
that wasn't so serious that he/she was initially waived into the
adult system, but rather the minor was held in the juvenile
system [until such time as] the minor stepped out of bounds in
one of the five manners specified. Now, the question is whether
the court should weigh in with an additional hearing or whether
the system can access.
3:49:07 PM
REPRESENTATIVE GRUENBERG instructed the members to review
Section 4 of the original legislation, Version C. Section 4
specifies that the petition must be filed and the court must
find those factors by a preponderance of the evidence. The
court has to have a hearing and make the factual finding that
the factors have been violated. Representative Gruenberg said:
Here, on a temporary basis, just on the filing of the
petition alone, the kid goes into the adult slammer.
There is no factual finding that that has, in fact,
occurred. That is absolutely a key difference and
that's all I'm saying. There's got to be a
preliminary finding of one of those ... factors,
that's all I'm saying. Otherwise, it's like filing a
complaint. Anybody can file a complaint ... petition,
I just want a court to make a preliminary finding of
that before you put the kid in the slammer ... on a
permanent basis ....
MS. CARPENETI highlighted that the lead-in on page 3, line 12,
of Version L is discretionary.
REPRESENTATIVE GRUENBERG emphasized that the language doesn't
specify what the court has to do. Therefore, if the court has
the hearing, it will have to make the preliminary finding. He
opined that there are significant problems in allowing a
transfer on a temporary basis without any hearing when a hearing
is required to do so on a permanent basis. "It's unfair not to
require any kind of a hearing by the court, and just on the
basis of a filing of a petition, the kid goes into the adult
jail," he said.
3:51:38 PM
REPRESENTATIVE SAMUELS reiterated that it's already done with
the auto waivers.
The committee took an at-ease from 3:51 p.m. to 3:54 p.m.
3:54:04 PM
DWAYNE PEEPLES, Deputy Commissioner, Department of Corrections,
explained that DOC has three types of operations that could
address some of the issues. At Spring Creek facility in Seward
there is a youthful offender unit for those juveniles and those
under age 21 who have already been waived and convicted. Within
DOC facilities there are also protective custody units in which
inmates are provided special protection. Furthermore, the minor
could be placed in a segregated unit, which is a single cell, as
a form of protective custody.
REPRESENTATIVE GRUENBERG said that although the aforementioned
is a good idea, a brief hearing by the court could allow it to
make the appropriate referral. He related his preference for
leaving it to the court as to how this is set up. He pointed
out that there is a specific requirement that the court make a
very specific factual finding before the minor can be referred.
The aforementioned isn't addressed "by this." Furthermore, how
this is set up is more appropriately addressed by a judge, he
opined, in order that no habeas corpus is filed. He emphasized
the need to avoid passing legislation that will be struck down.
REPRESENTATIVE SAMUELS surmised that DOC already does this and
that a 16-year-old minor won't be placed in the general
population of an [adult] facility.
MR. PEEPLES replied yes.
REPRESENTATIVE GRUENBERG asked if it's done in every case.
MR. PEEPLES said that he couldn't testify to every case, but
offered that it's normal procedure to try to keep [minors]
segregated. For those [minors] who are dual sentenced and
remanded, DOC would probably first look to transferring them to
the Spring Creek facility.
REPRESENTATIVE GRUENBERG pointed out that there would be a
period of time between when the minor is remanded and
transferred. Furthermore, some of those individuals may be
murderers and the minor may not be in the same category as the
other youthful offenders. He emphasized the need to take care.
3:57:55 PM
A roll call vote was taken. Representatives Holmes and
Gruenberg voted in favor of Conceptual Amendment 1.
Representatives Dahlstrom, Coghill, Samuels, and Ramras voted
against it. Therefore, Conceptual Amendment 1 failed by a vote
of 2-4.
3:58:19 PM
REPRESENTATIVE COGHILL moved to report CSHB 255, Version 25-
LS0914\L, Luckhaupt, 2/22/08, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 255(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 3:58 p.m.
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