Legislature(2009 - 2010)CAPITOL 120
03/19/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB324 | |
| HB366 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 366 | TELECONFERENCED | |
| *+ | HB 324 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 19, 2010
1:22 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative Carl Gatto
Representative Bob Herron
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 324
"An Act relating to the crime of failure to appear; relating to
arrest for violating certain conditions of release; relating to
release before trial, before sentence, and pending appeal;
relating to material witnesses; relating to temporary release;
relating to release on a petition to revoke probation; relating
to the first appearance before a judicial officer after arrest;
relating to service of process for domestic violence protective
orders; making conforming amendments; amending Rules 5 and 41,
Alaska Rules of Criminal Procedure, and Rules 206 and 603,
Alaska Rules of Appellate Procedure; and providing for an
effective date."
- HEARD & HELD
HOUSE BILL NO. 366
"An Act relating to indemnification agreements that relate to
motor carrier transportation contracts."
- MOVED CSHB 366(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 324
SHORT TITLE: FAILURE TO APPEAR; RELEASE PROCEDURES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/03/10 (H) READ THE FIRST TIME - REFERRALS
02/03/10 (H) JUD, FIN
03/19/10 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 366
SHORT TITLE: MOTOR CARRIER INDEMNIFICATION AGREEMENTS
SPONSOR(S): JOHNSON
02/23/10 (H) READ THE FIRST TIME - REFERRALS
02/23/10 (H) TRA, JUD
03/11/10 (H) TRA AT 1:00 PM CAPITOL 17
03/11/10 (H) Moved CSHB 366(TRA) Out of Committee
03/11/10 (H) MINUTE(TRA)
03/12/10 (H) TRA RPT CS(TRA) 5DP 1NR
03/12/10 (H) DP: JOHNSON, T.WILSON, GRUENBERG,
PETERSEN, P.WILSON
03/12/10 (H) NR: JOHANSEN
03/19/10 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SUSAN MCLEAN, Division Director
Legal Services Section
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions during
discussion of HB 324.
JEANNE OSTNES, Staff
Representative Craig Johnson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 366 on behalf of the sponsor,
Representative Johnson.
AVES THOMPSON, Executive Director
Alaska Trucking Association (ATA)
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions during
discussion of HB 366.
DEAN McKENZIE, President
Alaska West Express
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions during
discussion of HB 366.
ACTION NARRATIVE
1:22:54 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:22 p.m. Representatives Ramras, Lynn,
Gruenberg, Holmes, Herron, and Gatto were present at the call to
order. Representative Dahlstrom arrived as the meeting was in
progress.
HB 324 - FAILURE TO APPEAR; RELEASE PROCEDURES
1:24:31 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 324, "An Act relating to the crime of failure to
appear; relating to arrest for violating certain conditions of
release; relating to release before trial, before sentence, and
pending appeal; relating to material witnesses; relating to
temporary release; relating to release on a petition to revoke
probation; relating to the first appearance before a judicial
officer after arrest; relating to service of process for
domestic violence protective orders; making conforming
amendments; amending Rules 5 and 41, Alaska Rules of Criminal
Procedure, and Rules 206 and 603, Alaska Rules of Appellate
Procedure; and providing for an effective date."
1:24:47 PM
SUSAN MCLEAN, Division Director, Legal Services Section,
Criminal Division, Department of Law (DOL), after noting that
there is debate about some provisions of HB 324, informed the
committee that the bail statutes haven't been revised since
1966. Since the original bail statute was enacted, there have
been additions to it such that there are now many layers.
Therefore, the original goal of HB 324 is to streamline the bail
statutes into a reasonable, user-friendly format. She reminded
the committee that a constitutional amendment which gave rights
to crime victims had been adopted. As a result, many parts to
the bail statute were added. However, those didn't neatly fall
into the bail statutes. Ms. McLean related that, therefore, the
primary purpose of HB 324 is to streamline the bail statutes
such that they are easier to use and give effect to the
constitutional rights of crime victims within the statutes. A
major feature of HB 324 is that a person who is charged with a
serious sex offense will be required to prove that the release
conditions prior to trial will protect the victim and the
public. The legislation will also adopt standards for persons
appointed as third party custodians for persons released on
bail. Moreover, HB 324 would prohibit a person found guilty of
a serious sex offense from being released before sentencing or
during appeal of the conviction. The legislation protects
victims of domestic violence by establishing standards that the
court must (indisc.) before allowing a perpetrator of domestic
violence to return to the victim's residence. Finally, HB 324
would allow more time prior to a dependent's first appearance in
court for the police to investigate, the prosecutor to make an
informed charging decision, to bail arguments to be better
presented on both sides, and the victim to be contacted so that
he/she may be present at the first bail hearing.
1:28:08 PM
MS. MCLEAN then provided the committee with a sectional analysis
of HB 324. Section 1 moves the crime of failure to appear,
which currently resides in Title 12 to Title 11. The crime of
failure to appear in Section 1 is similar to existing law, save
that the failure to appear statute proposed for Title 11
addresses the "Moffitt" issue. The elements of the crime of
failure to appear have always been understood to be that a
person knowingly failed to appear in court, and that it's the
state's burden to prove the person knew he/she had to appear in
court. In 2009 the Alaska Court of Appeals decided Moffitt v.
State which said that there's a second burden of proof for the
state. The court found that implicit in the legislative intent
was that the state has to also prove that the defendant wasn't
prevented from the hearing by circumstances beyond his/her
control. In response to questions, Ms. McLean related that she
can't say the Defense Bar generally supports Section 1 because
there may be provisions that the public defender agrees with
that a private attorney does not. Furthermore, the American
Civil Liberties Union (ACLU) wrote a letter when the companion
legislation was presented in the Senate. She opined that not
all public defenders or private attorneys would agree with
everything in the ACLU's letter. However, she said that there
are some members of the Defense Bar who perceive this as an
attempt to create new law, whereas the administration views
Section 1 as an attempt to clarify the legislative intent of the
original law.
REPRESENTATIVE HOLMES surmised then that DOL believes Section 1
clarifies legislative intent, although it's counter to how it's
currently being interpreted by the courts.
MS. MCLEAN replied yes, adding that this is a new interpretation
by the courts. She noted that there have been conditions for
failure to appear for 45 years.
REPRESENTATIVE GRUENBERG recalled that the committee recently
heard HB 386, which included provisions making it a crime for
failure to appear for a citation. He opined that [the
aforementioned provision in HB 386] is similar to HB 324.
MS. MCLEAN stated that there's always been criminality attached
with failure to appear in court. In fact, she said she didn't
know of any state that doesn't have some sort of criminal
sanction for failure to appear in court. Furthermore, in a
felony case in Alaska, there is no court without the defendant,
as the process can't go forward without the defendant.
REPRESENTATIVE GRUENBERG asked whether, in any state, there is
any constitutional impediment to going forward when an
individual fails to appear in court. He further asked if Alaska
could have such a statute.
1:34:15 PM
MS. MCLEAN offered her understanding that the right to be
present at every stage of a criminal proceeding is a fundamental
right.
REPRESENTATIVE GRUENBERG posed a scenario in which an individual
voluntarily and knowingly absents himself/herself. He also
posed a scenario in which an individual walks out of the trial.
MS. MCLEAN pointed out that there is a statute and rule that
addresses the aforementioned. If an individual voluntary
absents himself/herself in the middle of a proceeding, the
proceeding would go forward because he/she is voluntarily
absent.
REPRESENTATIVE GRUENBERG then posed a scenario in which an
individual is present at the date the trial is set, but then
doesn't attend [the trial]. He surmised that currently the
proceedings couldn't go forward. He then asked if there is any
constitutional reason that there couldn't be a statute that
would allow the proceedings to go forward.
MS. MCLEAN offered her understanding that the constitution would
require that, at the point of trial, the defendant must be
present.
REPRESENTATIVE GRUENBERG reiterated his question regarding
whether such a statute could be enacted. He opined that in some
cases, defendants do what they can to disrupt and delay the
proceedings.
MS. MCLEAN informed the committee that in Alaska there have been
several cases in which the defendant wasn't present for the jury
question and the case was overturned on appeal. Therefore, she
characterized a statute as proposed by Representative Gruenberg
to be constitutionally on the edge.
1:37:58 PM
MS. MCLEAN informed the committee that Section 2 is
noncontroversial as it's a conforming amendment. Section 2
conforms the language in certain cases from reasonable cause to
probable cause so that all of the language in AS 12.25.030 reads
"probable cause". Section 2 allows a law enforcement officer to
arrest an individual for violation of conditions of release if
the officer has probable cause to believe the individual has
violated conditions of release. The language codifies what DOL
thought was the law such that an officer can arrest, without a
warrant, for a misdemeanor or felony committed in the officer's
presence.
MS. MCLEAN explained that Section 3 adopts a new section that
describes release procedures for those charged with crimes. She
emphasized those procedures are similar to those under various
sections of existing law. However, there are a few differences,
including that before the third and subsequent bail hearings
existing law and HB 324 require that certain prerequisites are
met. The existing prerequisites are that 7 days has to have
elapsed between bail hearings and 48 hours notice to the
prosecuting attorney. The legislation requires 48 hours notice
to the prosecuting attorney as well as to anyone who posted bail
on behalf of the defendant. The legislation specifies that the
individual who is released signs a release agreement that
describes the conditions of release and includes the
individual's promise to abide by the conditions of release.
Furthermore, Section 3 eliminates the provision in existing law
that allows a judicial officer to change, eliminate, or change
conditions of release at any time because the law already
provides this as a bail hearing. He noted that allowing a
judicial officer to change the conditions of release without
following the required procedures has the potential of being
unfair to the defendant, the prosecuting authority, and the
victim.
MS. MCLEAN moved on to Section 4, which revises the law
regarding the release before trial of an individual charged with
a crime. Section 4 adopts standards and condition of release
for specific crimes and melds them into one statute. She
pointed out that AS 12.30.011(b) provides the conditions that a
court may impose on an individual charged with a crime if, in
the court's discretion, the condition will reasonably ensure the
individual's appearance and the safety of other victims. Many,
if not most, of these conditions are in existing law while
others are included in the federal bail law. She explained that
AS 12.30.011(c) describes the various circumstances the court
should consider when deciding which conditions are reasonable to
impose on the individual. The aforementioned are similar to
existing law. Ms. McLean acknowledged that there has been some
suggestion that this legislation could create warrantless
searches. However, the legislation mirrors the existing law
regarding conditions for release in that a judicial officer with
a reasonable suspicion may require an individual to submit to
various things, such as a breath test or a search for drugs, as
conditions of bail. Ms. McLean specified that the provisions in
HB 324 don't create new warrantless search provisions, except a
change for the conditions of release for an individual who is on
medication while before the court. In such a case, the court
can, as a condition of release, require the individual continue
to take their medication. The aforementioned is aimed at
mentally ill individuals who don't get into trouble unless
they're not taking their medications.
1:43:07 PM
REPRESENTATIVE GATTO asked if the condition of release for an
individual who is on medication would apply to those individuals
taking psychotropic drugs, antibiotics, and other drugs.
MS. MCLEAN indicated that she would further research the
statutory language.
REPRESENTATIVE GRUENBERG pointed to the language found on page
6, lines 24-25. Representative Gruenberg, speaking as a
diabetic with a heart condition, characterized it as a very good
provision. He then offered his assumption that the provision is
constitutional.
MS. MCLEAN responded that she believes the provision is
constitutional. She added that the Alaska constitutional law on
conditions of release and probation is that the conditions have
to be reasonably related to the crime, or to keep the public
safe from that individual.
REPRESENTATIVE GRUENBERG pointed out that if he doesn't take his
insulin, he's only hurting himself. He opined that it's
important if this provision is simply requiring the individual
to keep himself/herself safe by taking their medication. In
response to the argument that individuals have the freedom to
not take their insulin, he said he would like this provision to
be applicable to those individuals under the court jurisdiction.
He further expressed interest in there being strong authority in
the record and debate that could be cited.
REPRESENTATIVE GATTO pointed out that an individual who doubles
his/her dose of insulin could cause harm to another individual.
MS. MCLEAN, in response to Representative Gatto's original
question, answered that the provision on page 6, lines 24-25,
doesn't apply only to psychotropic drugs. The language
specifies: "(16) order the person to take medication that has
been prescribed for the person by a licensed health care
provider with prescriptive authority;". Therefore, the
provision would include the situation Representative Gruenberg
discussed.
1:46:07 PM
MS. MCLEAN moved on to Section 4(d), for which there is a great
deal of debate. This subsection provides the evidentiary burden
a court must apply in making a decision about the release of an
individual. The burden of proof has always been on the
prosecution to establish that particular conditions are
reasonable and to ensure the defendant's appearance as well as
the safety of the victim and others. This legislation would
change that by creating certain offenses or procedural
situations. For example, in a situation in which an individual
is charged with domestic violence and has a prior conviction for
domestic violence within the last five years, the burden of
persuasion would be shifted to the defendant. The legislation
creates a rebuttable presumption that there are no conditions of
release or monetary conditions that assure the safety of the
victim or the community or the appearance of the defendant. The
intent, she emphasized, is simply that the burden of going
forward changes. Therefore, "the context in which the court
begins the inquiry about the conditions of release starts with
you're in this situation, explain to me what you're going to
do."
1:48:13 PM
CHAIR RAMRAS questioned how the aforementioned proposed standard
would place Alaska in terms of bail reform. How strict is the
state becoming, he asked. He referred to the proposed change as
a significant pendulum shift.
1:49:22 PM
MS. MCLEAN explained that everyone in the State of Alaska has a
right to be released on bail except those charged with capital
offenses. Therefore, everyone in the State of Alaska has the
right to be released on bail because the state doesn't have
capital offenses. The legislation specifies that for those who
come before the court charged with certain offenses and certain
criminal history, it's up to the defense to explain, and begin
the dialogue for the proposal of why the defendant won't be
dangerous to the victim or cause harm to the state. The court
can listen to the defendant's proposal, and the state could then
move to a rebuttable presumption and show the court by other
evidence why the defendant will flee, be dangerous to the
victim, or cause harm to the state. "The burden of proof never
leaves the state," she stated. She further stated that the
language is the federal law and has been challenged and
confirmed as constitutional in every circuit of the U.S. In
response to Chair Ramras, Ms. McLean related that she has
researched 25 states, of which there are some with presumptions
similar to that in HB 324. There are many states, such as
Arizona, in which [the defendant] doesn't receive bail for the
situations described in HB 324.
1:54:33 PM
REPRESENTATIVE HOLMES, referring to the language on page 5,
lines 4-6, asked whether this means that during bail hearings
the defense or the prosecution could introduce information
that's counter to the rape shield laws or medical illness.
MS. MCLEAN answered that she wouldn't think so because of the
statutes that govern confidentiality. However, she acknowledged
that the matter hasn't been litigated. The goal of the
referenced provision is that the prosecution or the defense can
make their proof by proffer or hearsay.
1:55:59 PM
MS. MCLEAN, referring to Section 4, pointed out that the
preponderance [of evidence] situation is proposed when the
defendant is charged with an unclassified felony, a class A
felony, a sexual felony, or has a previous conviction for a
felony and less than five years has elapsed. The [rebuttable]
presumption would also apply if the offense was committed while
the defendant was on release for another offense, for charges of
crime involving domestic violence, or the defendant was
convicted in the last five years of a crime involving domestic
violence. Ms. McLean reiterated, "Again, we're not talking
about not releasing people, we're just talking about the idea
that the defendants should come forward with a plan for how
he/she will be reliable and safe."
1:57:19 PM
REPRESENTATIVE GRUENBERG directed attention to page 7, lines 19-
21, and explained that the burden of proof includes the twin
burdens of going forward and burden of persuasion. Therefore,
it's the concept of who has to proceed first and the quantum of
proof. Representative Gruenberg opined that the reference to
preponderance of evidence, unless it's specified otherwise in
the legislation, implies the full burden of proof.
MS. MCLEAN clarified that all the federal cases construing the
statute and DOL's understanding of the statute are that the
accused individual has the burden of going forward and the state
always has the burden of persuasion.
REPRESENTATIVE GRUENBERG opined that the legislation is not
written in a way that he has ever seen it in Alaska. He pointed
out that the language "preponderance of evidence" deals with the
quantum of evidence, not the burden of going forward. He then
explained that one theory, with regard to rebuttable
presumptions, is that if evidence is brought forward to rebut
the presumption, then the presumption goes away. He opined that
this legislation doesn't just make the presumption go away, but
rather flips the burden such that "you now have the burden of
persuasion." The defendant would have to show, by 51 percent,
that the presumption is not true.
2:01:03 PM
MS. MCLEAN interjected that the presumption to which
Representative Gruenberg is referring is the presumption that
there are no conditions of release that will assure the safety
of the victim. She suggested that the defendant will have to
show some conditions of release that assure the safety of the
community and the victim. She reminded the committee that it's
a burden of going forward.
CHAIR RAMRAS surmised that the policy call with HB 324 is in
regard to with whom the burden will rest. Since 1966, the
burden has largely rested on the court system and the
prosecution. The proposed modernization of the bail provision
is to flip it. He mentioned that there are differences between
the rural and the urban problems. One of the unique
characteristics of Alaska is that it has people living in remote
rural communities and these people can't drive to a safe place.
There are individuals who qualify for bail and can reenter the
community. The test, albeit different for rural areas versus
urban areas, is for who is most vulnerable. Therefore, Chair
Ramras said that he will be using the rural test and seeking to
satisfy safety for victims and communities. The rural test, he
remarked, may be less appropriate for the proposed presumption
and flipping the standard to the defendant, while heavy-handed
for an urban application.
2:05:02 PM
MS. MCLEAN pointed out that the crimes of domestic violence and
sexual assault have been identified as crimes for which the
desire is to focus the inquiry on the subject of bail, such that
the court stops, takes notice, and conducts the dialogue from a
different point of view. The dialogue being: "You are here
again for assaulting your wife. You're simply accused of it,
but you were convicted of it last year. Why should I release
you back to the village where there are 50 people and she can't
hide from you," she said.
CHAIR RAMRAS reiterated that it needs to be a one-size-fits all
bail provision, although the application is for two remarkably
different groups.
REPRESENTATIVE GRUENBERG indicated a belief that the legislation
could include conditions for the court to consider in the
determination. The conditions could address the need to
safeguard the victim while allowing bail for the accused. For
example, an individual is on trial in Barrow for a crime that
allegedly occurred in a village. He opined that the court could
enter an order prohibiting the [accused] from leaving the trial
city, or returning to the village, as a condition of bail.
2:06:59 PM
MS. MCLEAN clarified that as a condition of bail on a limited
basis, the court could enter an order specifying that the
accused can't have contact with the victim or be within 50 feet
of the victim. The language relates that [a condition of
release] can be that the [accused] can't travel to a certain
location. She emphasized that all of those conditions of
release already can be issued by the court. The legislation,
she reiterated, is trying to place a finer point on the focus.
REPRESENTATIVE GRUENBERG, referring to page 7, lines 23-31,
pointed out that the categories are quite different. He then
provided the committee with an example in which the defendant
"Otto" was charged with one count of felony possession of
heroin. The charge was that he shot heroin in his arm on one
occasion. Ultimately, Otto was convicted. Representative
Gruenberg then posed a scenario in which four years and nine
months later Otto was charged with something similar.
Representative Gruenberg expressed the need to review whether
it's appropriate to flip the burden in such a case, a case in
which there's no showing of any danger to anyone else.
CHAIR RAMRAS asked if the aforementioned scenario would be
similar to an individual who has committed their sixth felony
driving under the influence (DUI). He opined that he would
focus on the safety of the community and the victim as the test
and flip the presumption away from the individual who has
committed the crime.
REPRESENTATIVE GRUENBERG acknowledged that would be the
prosecutor's argument. However, the committee, and the
legislature, is determining whether it's appropriate to flip the
burden of proof.
2:10:47 PM
MS. MCLEAN noted that in most cases the possession of a drug
wouldn't rise to the level of a class A felony. Therefore, she
opined that the intent is "having a cutoff at which you say a
lesser felony doesn't count."
REPRESENTATIVE GRUENBERG clarified that his problem isn't with
subparagraph (A) on page 7, lines 23-24, but rather he is
addressing subparagraph (B) on page 7, lines 25-28. He further
clarified that he's merely flagging the issue.
REPRESENTATIVE HERRON expressed the need to find balance because
it's bullies who have to be in control. Therefore, what happens
in the village or an urban area are the same because
[perpetrators] rarely go out of the range of their neighborhood
or village.
2:12:42 PM
MS. MCLEAN, continuing with Section 4, turned the committee's
attention to proposed AS 12.30.016, which allows the court to
impose specific conditions of release for specific offenses,
which already exist. She said that for the most part [those
conditions of release] are similar to or identical to existing
law. However, subsection (f) on page 10, lines 12-13, proposes
a new condition of release.
REPRESENTATIVE GRUENBERG asked if there is a difference between
"reasonable suspicion" and "probable cause". If so, is the use
of "reasonable suspicion" on page 8, line 21, a change from the
current law of "probable cause".
MS. MCLEAN clarified that there is a difference between
"reasonable suspicion" and "probable cause", as "reasonable
suspicion" reflects a lower standard than "probable cause". In
further response to Representative Gruenberg, Ms. McLean stated
that this is how the law is currently written.
[Members then spoke briefly about a recent relevant case.]
2:15:39 PM
MS. MCLEAN added that unless the court imposed the conditions,
the police aren't authorized to perform the conditions of
release. She clarified that it's a situation in which the court
has ordered the individual to submit [to the condition of
release] because there is reasonable suspicion. Returning the
committee's attention to Section 4(f), Ms. McLean pointed out
that it specifies certain conditions that the court may impose
for an individual charged with a sex offense, which are similar
[to existing law]. However, the subsection adds a provision
such that the court is permitted to add a condition of release
that the individual isn't allowed to have contact with an
individual under the age of 18. Furthermore, the provision, as
in current law, requires the court to ensure the victim has been
notified of any bail hearing, but adds that for sex offenses the
victim should be allowed to speak and the court consider the
victim's comments when determining conditions of release.
MS. MCLEAN moved on to Section 5, which adopts standards for a
third-party custodian. Current statute authorizes the court to
require a third party custodian to watch over an individual
released on bail. Section 5 requires the court to obtain
information about the proposed custodian, including ties to the
community and the relationship to the defendant. The provision
establishes some minimum standards for the custodian, such as
the custodian must be able to keep the defendant in his/her
sight or sound, the custodian can't have a pending charge, and
the custodian isn't on probation for a felony. She noted that
there is some dispute with regard to Section 5. The Alaska
Court System expressed concern that it wouldn't be possible to
find third party custodians who meet the qualifications of not
having a misdemeanor offense within the past five years or a
felony within the past ten years.
CHAIR RAMRAS stated his concurrence with that concern. He then
asked how peace officers are going to be aware of or access the
specific bail conditions of individuals.
MS. MCLEAN informed the committee that presently, in the less
sophisticated communities, when an individual is released from
jail, the court system provides the police agency with a copy of
the conditions of release. The conditions are then posted on a
clipboard so that all officers would know. She then related her
understanding that the Alaska Court System, in conjunction with
the Departments of Public Safety and Law, are attempting to
create a computerized system whereby there are real-time
conditions of release when the court imposes them.
2:20:16 PM
REPRESENTATIVE GRUENBERG directed the committee's attention to
the language on page 11, line 7, which read:
is physically able to perform the duties of custodian
of the person;
REPRESENTATIVE GRUENBERG then expressed his concern for whether
a custodial would be mentally able to perform the necessary
duties.
MS. MCLEAN acknowledged that perhaps that should be added. She
added, drawing from her experience, that it has never been
necessary for a third party custodian to stop the individual
from violating the conditions of release, rather the custodian's
duty is to report any violation.
2:21:45 PM
REPRESENTATIVE GRUENBERG offered his understanding that it has
been difficult to obtain third party custodians, which seem to
be used more often in Alaska than elsewhere. He mentioned that
he'd like information regarding the current ability/inability to
obtain custodians and the impact HB 324 will have.
CHAIR RAMRAS related his understanding that an individual who
received his/her first DUI within the last five years wouldn't
be satisfactory as a custodian.
MS. MCLEAN indicated that's the case, and added that this point
is being discussed with the Alaska Court System.
CHAIR RAMRAS interjected that the aforementioned is unacceptable
because there are some remarkable, upstanding citizens who would
fall into this category of individuals who wouldn't be
satisfactory as a custodian under these proposed rules.
2:23:49 PM
MS. MCLEAN continued her sectional analysis, and explained that
Section 6 amends the statutes addressing the general conditions
of release for an individual charged with a crime involving
domestic violence by conforming to the newly adopted sections of
HB 324. Section 6 doesn't include any substantive change.
Section 7 amends the law that prohibits the court from allowing
an individual charged with a crime involving domestic violence
from returning to the home of the victim. In Williams v. State,
151 P.3d 460 (Alaska App. 2006), the court said that the law
allowing the court not to allow anyone to return to the victim's
residence during the entire pendency of the time was overly
broad. The court struck down that law as unconstitutional.
Therefore, Section 7 attempts to limit [the condition] in a
manner that's not overly broad while giving a cooling off period
as well as a period to assess the level of dangerous. Under
Section 7, the court isn't allowed to permit an individual
accused of domestic violence to return home for 20 days, which
is the same length of time as is provided for an emergency
restraining order. After the 20 days has elapsed, and the
victim consents, it will be allowed if the offender can
establish in the particular case that he/she could return to the
victim's residence without posing any danger to the victim. She
said she didn't know of any opposition to Section 7.
REPRESENTATIVE GRUENBERG relayed concern as it's possible to
obtain a protective order that's ex parte. As a family lawyer,
Representative Gruenberg related that sometimes individuals use
a protective order to bootstrap themselves into custody.
Therefore, he expressed the need to ensure that this provision
wouldn't prohibit a court from adjusting bail conditions, if
necessary to prevent misuse. He noted that it has happened on
more than one occasion.
2:28:24 PM
REPRESENTATIVE HERRON inquired as to the definition of
"residence" in Section 7.
MS. MCLEAN answered that "residence" is defined as "where the
victim lives."
REPRESENTATIVE HERRON asked if that definition can be expanded.
MS. MCLEAN answered that she didn't believe so. She reminded
the committee that the court, as a condition of release, has
always had the authority to not allow an individual to have any
contact with the victim. In fact, most often the aforementioned
is a condition of release. This provision simply expresses the
desire for there to be a period in which the victim doesn't have
to let the [perpetrator] live with the victim. As long as the
term "residence" is narrowly defined, it doesn't create a
problem in a situation in which an individual living in a group
home attacks his/her caretaker. Since the group home isn't the
caretaker's residence, the [attacker] could still live there.
This provision, she clarified, is saying that the court can't
impose a condition that allows the individual to return to the
victim's residence. She offered to research whether the
definition could be expanded further.
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]
REPRESENTATIVE HERRON explained that he has concern for a
situation in which a [perpetrator] can be forbidden to go to the
[victim's] residence and has to stay 50 feet away. However,
[the perpetrator] could move into a home of a family member that
is 100 feet away from the [victim's residence].
REPRESENTATIVE GATTO questioned whether Ms. McLean recommends
adding the language "or place of business" following "residence"
[in Section 7].
MS. MCLEAN characterized adding such language as "abundantly
sensible" and likely to survive a constitutional challenge. She
added that generally that's part of the conditions of release,
although it's not included in the term "residence".
[HB 324 was held over.]
2:32:07 PM
The committee took an at-ease from 2:32 p.m. to 2:36 p.m.
HB 366 - MOTOR CARRIER INDEMNIFICATION AGREEMENTS
2:36:38 PM
VICE CHAIR DAHLSTROM announced that the final order of business
would be HOUSE BILL NO. 366, "An Act relating to indemnification
agreements that relate to motor carrier transportation
contracts." [Before the committee was CSHB 366(TRA).]
2:37:23 PM
REPRESENTATIVE GRUENBERG recalled that there was no controversy
regarding HB 366 in the House Transportation Standing Committee,
the prior committee of referral. Subsequently, the House
Judiciary Standing Committee has received a letter from the
Ocean Carrier Equipment Management Association (OCEMA)
requesting a change to CSHB 366(TRA).
2:38:08 PM
JEANNE OSTNES, Staff, Representative Craig Johnson, Alaska State
Legislature, explained that HB 366 was initiated by the motor
carriers, as presently the shippers could transfer all the
liability to the motor carrier, thereby indemnifying themselves.
She pointed out that the shippers were also included in the
bill, as both shippers and motor carriers agreed to indemnify
themselves. She noted that OCEMA, the Alaska Trucking
Association (ATA), and Representative Johnson, the bill sponsor,
have all agreed to the proposed Amendment 1.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
2:39:51 PM
REPRESENTATIVE GRUENBERG directed attention to page 2, line 20
and noted that the language "packing or storage" was different
from the amendment he had offered in the prior committee, which
was "packing and storage." He asked to find out if there is any
substantive difference.
REPRESENTATIVE GATTO offered his belief that there is a
significant difference.
REPRESENTATIVE GRUENBERG concurred. He indicated that he would
like to see the bill amended such that "and" is used instead of
"or."
2:42:03 PM
MS. OSTNES referred to the letter from OCEMA, dated March 15,
2010, [Included in the members' packets.] which supported
proposed Amendment 1 and listed other states with similar
legislation.
2:42:18 PM
AVES THOMPSON, Executive Director, Alaska Trucking Association
(ATA), relayed that ATA was fully supportive of the proposed
amendment. He pointed out that the basic premise of HB 366 was
to assign liability where it belongs.
2:44:42 PM
DEAN McKENZIE, President, Alaska West Express, stated that HB
366 is a very good bill and he encouraged support for passage of
both the bill and the proposed amendment. He expressed that
each party should be responsible for its own actions.
2:46:25 PM
REPRESENTATIVE GRUENBERG offered his belief that the proposed
Amendment 1 would provide in state law that uniform
indemnification agreements would not be contrary to public
policy. He cited the synopsis of a Texas anti-indemnification
case which he believed to be included in the members' packets.
MS. OSTNES agreed, and cited the Texas case as CMACGM America v.
Empire Truck Lines.
REPRESENTATIVE GRUENBERG pointed out that HB 366 would reverse
the result of the Texas case.
2:48:26 PM
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 366.
2:48:41 PM
REPRESENTATIVE GRUENBERG made a motion to adopt proposed
Amendment 1, labeled 26-LS1434\E.2, Bannister, 3/18/10, which
read:
Page 2, following line 2:
Insert a new subsection to read:
"(c) This section does not apply to the Uniform
Intermodal Interchange and Facilities Access Agreement
administered by the Intermodal Association of North
America or to another agreement that provides for the
interchange, use, or possession of intermodal chassis,
intermodal containers, or other intermodal equipment."
Reletter the following subsection accordingly.
There being no objection, Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG said that he would refer to the earlier
House Transportation Standing Committee version of HB 366 as the
basis for his earlier referenced question to the use of "and" as
opposed to "or."
2:49:23 PM
REPRESENTATIVE DAHLSTROM moved to report CSHB 366(TRA), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
366(JUD) was reported from the House Judiciary Standing
Committee.
2:49:43 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:49 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 Hb366 Sponsor Statement.pdf |
HJUD 3/19/2010 1:00:00 PM |
HB 366 |
| 02 HB366 Bill TRA CS v. E.pdf |
HJUD 3/19/2010 1:00:00 PM |
HB 366 |
| 03 HB0366-1-1-031210-DOT-N.pdf |
HJUD 3/19/2010 1:00:00 PM |
HB 366 |
| 04 HB366 Support.pdf |
HJUD 3/19/2010 1:00:00 PM |
HB 366 |
| 05 HB366 HJUD Amendment #1.pdf |
HJUD 3/19/2010 1:00:00 PM |
HB 366 |
| 01 HB324 HJUD Hearing Request.pdf |
HJUD 3/19/2010 1:00:00 PM HJUD 3/22/2010 1:00:00 PM |
HB 324 |
| 05 HB324 Court Records.pdf |
HJUD 3/19/2010 1:00:00 PM |
HB 324 |
| 02 HB324 Bill v. A.pdf |
HJUD 3/19/2010 1:00:00 PM HJUD 3/22/2010 1:00:00 PM |
HB 324 |
| 03 HB324 Sectional v. A.pdf |
HJUD 3/19/2010 1:00:00 PM HJUD 3/22/2010 1:00:00 PM |
HB 324 |
| 04 Svobodney letter 3.10.10.pdf |
HJUD 3/19/2010 1:00:00 PM |