03/07/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB76 | |
| HB153 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 76 | TELECONFERENCED | |
| *+ | HB 153 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 7, 2011
1:03 p.m.
MEMBERS PRESENT
Representative Steve Thompson, Vice Chair
Representative Wes Keller
Representative Bob Lynn
Representative Lance Pruitt
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Carl Gatto, Chair
Representative Mike Chenault (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 76
"An Act relating to costs and fees for stalking and sexual
assault protective orders."
- HEARD & HELD
HOUSE BILL NO. 153
"An Act relating to the scheduling and rescheduling of certain
substances as controlled substances."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 76
SHORT TITLE: STALKING/SEXUAL ASSAULT PROTECTIVE ORDERS
SPONSOR(S): REPRESENTATIVE(S) HOLMES
01/18/11 (H) PREFILE RELEASED 1/14/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) JUD, FIN
03/07/11 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 153
SHORT TITLE: CONTROLLED SUBSTANCES
SPONSOR(S): REPRESENTATIVE(S) JOHANSEN
02/11/11 (H) READ THE FIRST TIME - REFERRALS
02/11/11 (H) JUD, FIN
03/07/11 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JAMES R. WALDO, Staff
Representative Lindsey Holmes
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 76 on
behalf of the sponsor, Representative Holmes.
LISA A. MARIOTTI, Policy Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 76.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 76, responded to
questions regarding the length of various protective orders.
REID HARRIS, Staff
Representative Kyle Johansen
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 153 on behalf of the sponsor,
Representative Johansen.
ORIN DYM, Forensic Laboratory Supervisor
Scientific Crime Detection Laboratory
Office of the Commissioner
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 153.
RODNEY DIAL, Lieutenant, Deputy Commander
A Detachment
Division of Alaska State Troopers
Department of Public Safety (DPS)
Ketchikan, Alaska
POSITION STATEMENT: Testified in support of HB 153.
VIKI WELLS, Behavioral Health Specialist
Southcentral Regional Team
Treatment & Recovery Section
Division of Behavioral Health (DBH)
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to a
question during discussion of HB 153.
DOUGLAS MOODY, Deputy Director
Criminal Division
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 153.
ACTION NARRATIVE
1:03:21 PM
VICE CHAIR STEVE THOMPSON called the House Judiciary Standing
Committee meeting to order at 1:03 p.m. Representatives
Thompson, Keller, Pruitt, Holmes, and Lynn were present at the
call to order. Representative Gruenberg arrived as the meeting
was in progress. Representative Gatto was excused.
HB 76 - STALKING/SEXUAL ASSAULT PROTECTIVE ORDERS
1:04:14 PM
VICE CHAIR THOMPSON announced that the first order of business
would be HOUSE BILL NO. 76, "An Act relating to costs and fees
for stalking and sexual assault protective orders."
REPRESENTATIVE HOLMES, speaking as the sponsor, explained that
HB 76 is intended to fix a loophole in the statutes pertaining
to protective orders for stalking and sexual assault. When the
statutes pertaining to protective orders for domestic violence
(DV) were created, they included a provision that allowed the
court to order a perpetrator of DV to pay the costs and fees
incurred by the victim for the protective order. However, when
the statutes pertaining to protective orders for stalking and
sexual assault were created, no such similar provision was
included. She characterized this as an oversight that HB 76
would correct.
1:06:31 PM
JAMES R. WALDO, Staff, Representative Lindsey Holmes, Alaska
State Legislature, on behalf of the sponsor, Representative
Holmes, explained that Section 1 of HB 76 would add a new
paragraph (5) to AS 18.65.850(c) that would allow the court,
when issuing a protective order for stalking or sexual assault,
to also require the respondent to pay the costs and fees
incurred by the petitioner in bringing the action. Section 2
would alter AS 18.65.855 such that proposed AS 18.65.850(c)(5)
would not apply in situations involving ex parte and emergency
protective orders for stalking and sexual assault; this
exemption mirrors one in the statutes pertaining to ex parte and
emergency protective orders for DV.
REPRESENTATIVE LYNN asked what a protective order typically
costs.
MR. WALDO suggested that others might be better able to address
that question, but surmised that there could be a number of
costs associated with a protective order. In response to a
question, he explained that the change proposed by Section 1 of
HB 76 would allow the stipulation about paying costs and fees to
be included in the protective order itself, whereas, in
contrast, recovering such costs and fees under the Alaska Rules
of Civil Procedure - specifically Rule 79 pertaining to costs
and Rule 82 pertaining to attorney fees - would require
additional court filings from the victim, and these could be
fairly onerous, particularly when the victim is a pro se
petitioner.
REPRESENTATIVE GRUENBERG, noting that he supports HB 76,
questioned whether the changes proposed by HB 76 constitute an
indirect court rule change.
MR. WALDO offered that HB 76's proposed new language simply
mirrors language already existing in the statutes pertaining to
protective orders for DV.
REPRESENTATIVE HOLMES added that the proposed changes have
already been vetted by both the Department of Law (DOL) and
Alaska Court System (ACS), and neither raised concerns about
potential court rule changes.
MR. WALDO, in response to a question, explained that under
current Alaska law, protective orders for stalking and sexual
assault may only contain those items listed in AS 18.65.850(c),
which currently reads:
(c) A protective order issued under this section may
(1) prohibit the respondent from threatening to
commit or committing stalking or sexual assault;
(2) prohibit the respondent from telephoning,
contacting, or otherwise communicating directly or
indirectly with the petitioner or a designated
household member of the petitioner specifically named
by the court;
(3) direct the respondent to stay away from the
residence, school, or place of employment of the
petitioner, or any specified place frequented by the
petitioner; however, the court may order the
respondent to stay away from the respondent's own
residence, school, or place of employment only if the
respondent has been provided actual notice of the
opportunity to appear and be heard on the petition;
(4) order other relief the court determines to be
necessary to protect the petitioner or the designated
household member.
1:17:42 PM
MR. WALDO again explained that Section 1's proposed AS
18.65.850(c)(5) would allow the court, if it so chooses, to also
include in the protective order a requirement that the
respondent pay the costs and fees incurred by the petitioner in
bringing the action. In response to a further question, he
relayed that the language in proposed paragraph (5) mirrors that
found under existing AS 18.66.100(c)(14), which pertains to
protective orders for DV. Again, HB 76 would merely be
addressing an oversight in the statutes pertaining to protective
orders for stalking and sexual assault, and because the proposed
provisions are already part of existing law as it pertains to
protective orders for DV, the courts have already dealt with
such provisions.
MR. WALDO, in response to questions, reiterated that Section 2
would alter AS 18.65.855 such that proposed AS 18.65.850(c)(5)
would not apply in situations involving ex parte and emergency
protective orders for stalking and sexual assault; and that this
exemption mirrors one pertaining to ex parte and emergency
protective orders for DV. In situations involving ex parte and
emergency protective orders, the respondent wouldn't be present
or have knowledge of the proceeding, and so there would be
significant due process issues raised if the court were to
require the respondent to pay costs and fees when he/she wasn't
present to defend himself/herself. He then recounted his
understanding of the various types of protective orders
available in Alaska.
1:29:05 PM
LISA A. MARIOTTI, Policy Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), explained that last summer
the ANDVSA became aware of two cases in which the respondent of
a stalking and sexual assault protective order came to the
proceeding with a lawyer and essentially turned it into a mini-
trial in order to thwart the process. [The magistrates in those
cases] felt it was appropriate to order the respondent to pay
for the costs and fees incurred by the petitioner, but current
statute didn't allow for it. The ANDVSA thought this odd
because the law already allows the court to order a respondent
of a protective order for DV to pay costs and fees incurred by
the petitioner, and so the ANDVSA approached the sponsor about
introducing a bill to remedy the situation, the result being
HB 76.
MS. MARIOTTI, too, pointed out that when the statutes pertaining
to protective orders for DV were created, they included a
provision that allowed the court to order the respondent to pay
costs and fees, and offered her understanding that the inclusion
of that provision didn't result in an indirect court rule
change. House Bill 76 would bring some parity to the statutes
pertaining to protective orders, and, under the bill, it would
not be mandatory for the court to order a respondent of a
protective order for stalking or sexual assault to pay the costs
and fees incurred by the petitioner, but would instead be left
up to the court to determine on a case-by-case basis whether
such would be appropriate. In conclusion, she relayed that the
ANDVSA fully supports HB 76, and agreed to provide the committee
with information about typical costs and fees associated with
protective orders.
REPRESENTATIVE GRUENBERG, in response to information provided
him, expressed disfavor with the fact that protective orders for
stalking and sexual assault are only in effect for six months,
and relayed that he would be researching that issue further.
1:42:04 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), in response to questions, provided information about the
lengths of the various types of protective orders available in
Alaska.
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on HB 76, and announced that
HB 76 would be held over.
HB 153 - CONTROLLED SUBSTANCES
1:47:29 PM
VICE CHAIR THOMPSON announced that the final order of business
would be HOUSE BILL NO. 153, "An Act relating to the scheduling
and rescheduling of certain substances as controlled
substances."
1:47:49 PM
REID HARRIS, Staff, Representative Kyle Johansen, Alaska State
Legislature, on behalf of the sponsor, Representative Johansen,
mentioned that similar legislation has been introduced in prior
years, and explained that Section 1 of HB 153 would add two new
substances - Salvia divinorum, and Salvinorin A (Divinorin A) -
to the list of schedule IIA controlled substances in AS
11.71.150. Salvia divinorum is the name of a particular plant,
a perennial herb in the mint family indigenous to southern
Mexico but capable of being grown pretty much anywhere, and
Salvinorin A (Divinorin A) is the active ingredient derived from
that plant. In fact, Salvinorin A (Divinorin A) is, by weight,
the most potent naturally-occurring hallucinogen known.
Information from the U.S. Drug Enforcement Administration (DEA)
indicates that some of the effects of Salvia divinorum include
perceptions of bright lights, vivid colors, shapes, body
movement, and body or object distortions; an inducement of fear
and panic; uncontrollable laughter; a sense of overlapping
realities; other hallucinations; [loss of coordination;
dizziness; and slurred speech].
MR. HARRIS noted that neither Salvia divinorum nor Salvinorin A
(Divinorin A) have been scheduled by the DEA yet, though it has
added them to its "diversion list." As of September 2010, 24
states and 20 countries have [taken steps to control) Salvia
divinorum, either banning it outright or banning its sale to
minors or doing both to some extent. Salvia divinorum's
pharmaceutical effects are still being studied - it has been
used in Mexico for thousands of years, though its use as a
recreational drug in the United States is very recent - and its
long-term effects aren't yet known, though it may have some
value in reducing gastrointestinal disease and in drug treatment
therapy. Under HB 153, only the recreational use of Salvia
divinorum and Salvinorin A (Divinorin A) would be outlawed, not
medical research. A number of videos of people using Salvia
divinorum are available on the Internet, he relayed, and the
drug's use has become very popular among young people; on those
videos, users "wig out and then pass out for about five minutes,
and then wake up and kind of go, 'What happened?'" The average
user is between 18 and 25 years old, though some users are as
young as 12, and the drug can be purchased at local stores in
Alaska.
MR. HARRIS explained that Sections 2 and 3 of HB 153 would move
buprenorphine from the list of schedule VA controlled substances
in AS 11.71.180, to the list of schedule IIIA controlled
substances in AS 11.71.160. Buprenorphine is a semi-synthetic
opioid used in lower doses to treat addicts and to control
moderate pain in non-opioid-tolerant individuals, but it also,
much like other opioids, has a high potential for abuse. This
proposed change is anticipated to increase buprenorphine's
enforceability, and was added at the request of law enforcement
because of a recent increase in its abuse.
MR. HARRIS noted that at one point, the sponsor had considered
only making it illegal to sell Salvia divinorum and Salvinorin A
(Divinorin A) to minors, but then, after seeing videos of users
and how seriously the drug affects them, decided to address the
issue via an outright ban, listing it in the same schedule as
other hallucinogens.
1:58:53 PM
ORIN DYM, Forensic Laboratory Supervisor, Scientific Crime
Detection Laboratory, Office of the Commissioner, Department of
Public Safety (DPS), in response to a question, indicated that
the Scientific Crime Detection Laboratory ("Crime Lab") has
expertise in detecting the presence of the substances listed in
the bill.
2:00:32 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), said that the DPS supports HB 153 primarily because
without its proposed changes, law enforcement could have
difficulty charging drivers under the influence of such
substances with driving under the influence (DUI).
2:01:30 PM
VIKI WELLS, Behavioral Health Specialist, Southcentral Regional
Team, Treatment & Recovery Section, Division of Behavioral
Health (DBH), Department of Health and Social Services (DHSS),
relayed that Salvia divinorum and Salvinorin A (Divinorin A)
have been advertised on the Internet as legal alternatives to
lysergic acid diethylamide (LSD) and mescaline that can produce
an out of body experience. Because tests to determine the
presence of these substances have only recently become
available, there hasn't been much in the way of detection or
reporting by grantees of substance-use-disorder programs. She
surmised that it could be difficult to control salvia because,
as a plant, its cuttings are easily available on the Internet,
it's relatively inexpensive, and it's easily grown - in fact, in
some states, it's grown as a decorative plant. With regard to
buprenorphine, she explained that it's primarily used for the
treatment of opioid addiction, and sometimes for pain. Its
abuse, nationally, has been a growing problem, and considering
the prevalence of opioid addiction in Alaska, she predicted that
it would continue to be a growing problem here as well. In
conclusion, she offered her understanding that treating
buprenorphine as a schedule IIIA controlled substance, as the
bill proposes, would mirror how the federal government treats
it.
2:06:30 PM
DOUGLAS MOODY, Deputy Director, Criminal Division, Central
Office, Public Defender Agency (PDA), Department of
Administration (DOA), noting that buprenorphine is used for the
treatment of opioid addiction, offered his understanding that
heroin abuse constitutes the State's biggest opioid problem. In
response to questions, he said that he is unaware of there
currently being a problem with people becoming addicted to
buprenorphine; that although under current law, some controlled
substances are listed in more than one schedule depending on the
amount, he is unable to say whether the same approach ought to
be taken with buprenorphine; and that it seems that the
hallucinogens Salvia divinorum and Salvinorin A (Divinorin A)
are short-acting compared with other hallucinogens.
MR. DYM, in response to a question, indicated that it's not
anticipated that HB 153 would have a fiscal impact on the Crime
Lab.
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on HB 153, and announced
that HB 153 would be held over.
2:13:29 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:13 p.m.