04/11/2012 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB210 | |
| SB122 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 210 | TELECONFERENCED | |
| + | SB 122 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 11, 2012
1:18 p.m.
MEMBERS PRESENT
Representative Steve Thompson, Vice Chair
Representative Wes Keller
Representative Bob Lynn
Representative Lance Pruitt
Representative Max Gruenberg
Representative Lindsey Holmes
Representative Mike Hawker (alternate)
MEMBERS ABSENT
Representative Carl Gatto, Chair (deceased April 10, 2012)
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 210(FIN)
"An Act relating to crimes against children; and providing for
an effective date."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 122(L&C)
"An Act relating to research on and examination of titles;
relating to residency requirements for title insurance limited
producers; relating to real estate transfer fees; and providing
for an effective date."
- MOVED HCS CSSB 122(L&C) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 210
SHORT TITLE: CRIMES AGAINST CHILDREN/SUPPORT/CINA
SPONSOR(S): SENATOR(S) MCGUIRE
02/21/12 (S) READ THE FIRST TIME - REFERRALS
02/21/12 (S) JUD, FIN
02/27/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/27/12 (S) Heard & Held
02/27/12 (S) MINUTE(JUD)
03/16/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/16/12 (S) Scheduled But Not Heard
03/21/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/21/12 (S) Scheduled But Not Heard
03/23/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/23/12 (S) Moved CSSB 210(JUD) Out of Committee
03/23/12 (S) MINUTE(JUD)
03/26/12 (S) JUD RPT CS 3DP 1NR NEW TITLE
03/26/12 (S) DP: FRENCH, WIELECHOWSKI, PASKVAN
03/26/12 (S) NR: COGHILL
04/02/12 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/02/12 (S) Heard & Held
04/02/12 (S) MINUTE(FIN)
04/03/12 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/03/12 (S) Moved CSSB 210(FIN) Out of Committee
04/03/12 (S) MINUTE(FIN)
04/04/12 (S) FIN RPT CS 7DP NEW TITLE
04/04/12 (S) DP: HOFFMAN, STEDMAN, THOMAS, EGAN,
MCGUIRE, OLSON, ELLIS
04/06/12 (S) TRANSMITTED TO (H)
04/06/12 (S) VERSION: CSSB 210(FIN)
04/09/12 (H) READ THE FIRST TIME - REFERRALS
04/09/12 (H) JUD, FIN
04/11/12 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 122
SHORT TITLE: REAL ESTATE TRANSFER FEES/TITLE INSURANCE
SPONSOR(S): LABOR & COMMERCE
04/08/11 (S) READ THE FIRST TIME - REFERRALS
04/08/11 (S) CRA, L&C
01/24/12 (S) CRA AT 3:30 PM BELTZ 105 (TSBldg)
01/24/12 (S) Heard & Held
01/24/12 (S) MINUTE(CRA)
01/31/12 (S) CRA AT 3:30 PM BELTZ 105 (TSBldg)
01/31/12 (S) Moved CSSB 122(CRA) Out of Committee
01/31/12 (S) MINUTE(CRA)
02/01/12 (S) CRA RPT CS 4DP NEW TITLE
02/01/12 (S) DP: OLSON, KOOKESH, MENARD, WAGONER
02/02/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/02/12 (S) Heard & Held
02/02/12 (S) MINUTE(L&C)
02/21/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/21/12 (S) -- MEETING CANCELED --
02/23/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/23/12 (S) Moved CSSB 122(L&C) Out of Committee
02/23/12 (S) MINUTE(L&C)
02/24/12 (S) L&C RPT CS 5DP NEW TITLE
02/24/12 (S) DP: EGAN, GIESSEL, DAVIS, PASKVAN,
MENARD
03/14/12 (S) TRANSMITTED TO (H)
03/14/12 (S) VERSION: CSSB 122(L&C)
03/15/12 (H) READ THE FIRST TIME - REFERRALS
03/15/12 (H) L&C, JUD
04/04/12 (H) L&C AT 3:15 PM BARNES 124
04/04/12 (H) Heard & Held
04/04/12 (H) MINUTE(L&C)
04/06/12 (H) L&C AT 3:15 PM BARNES 124
04/06/12 (H) Scheduled But Not Heard
04/09/12 (H) L&C AT 3:15 PM BARNES 124
04/09/12 (H) Moved HCS CSSB 122(L&C) Out of
Committee
04/09/12 (H) MINUTE(L&C)
04/10/12 (H) L&C RPT HCS(L&C) 6DP
04/10/12 (H) DP: THOMPSON, SADDLER, JOHNSON, HOLMES,
MILLER, OLSON
04/11/12 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
AMY SALTZMAN, Staff
Senator Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented portions of SB 210 on behalf of
the sponsor, Senator McGuire.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of SB 210
and responded to questions.
DOUGLAS MOODY, Deputy Public Defender
Criminal Division
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on SB 210.
JOSHUA DECKER, Staff Attorney
American Civil Liberties Union of Alaska (ACLU of Alaska)
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on SB 210.
DANA OWEN, Staff
Senator Dennis Egan
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 122 on behalf of the sponsor,
the Senate Labor and Commerce Standing Committee, which is
chaired by Senator Egan.
KIMBERLY GLISSEN, General Manager
Alaska Escrow & Title Insurance Agency, Inc.
Ketchikan, Alaska
POSITION STATEMENT: Testified in favor of SB 122.
CHRIS NEWBILL, Manager
Ketchikan Title Agency, Inc.
Ketchikan, Alaska
POSITION STATEMENT: Testified in favor of SB 122.
MICHEAL PRICE, Co-Owner
Mat-Su Title Insurance Agency, Inc.;
Co-Owner
Fidelity Title Agency of Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 122.
ROGER FLOERCHINGER, Owner
President & CEO
Yukon Title Company, Inc.
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of SB 122 as currently
written.
STEPHAN ROUTH, Attorney at Law
Routh Crabtree Olsen, P.S.
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on SB 122.
CRYSTAL PELTOLA, Vice President & General Manager
Alaska USA Title Agency
Anchorage, Alaska
POSITION STATEMENT: Testified in support of Section 3 of SB 122
but expressed concern regarding the constitutionality of
Section 2.
TERRY BRYAN, Vice President & State Manager
First American Title Insurance Company
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on SB 122.
HOWARD HANCOCK, Chief Title Officer
Fidelity Title Agency of Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 122.
LINDA HALL, Director
Anchorage Office
Division of Insurance
Department of Commerce, Community & Economic Development (DCCED)
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on
SB 122.
JERRY REED, President
Alaska USA Mortgage Company, LLC.
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 122, testified in
support of Section 3 and in opposition to Section 2.
ACTION NARRATIVE
1:18:31 PM
VICE CHAIR STEVE THOMPSON called the House Judiciary Standing
Committee meeting to order at 1:18 p.m. Representatives
Thompson, Lynn, Pruitt, Holmes, and Hawker (alternate) were
present at the call to order. Representatives Keller and
Gruenberg arrived as the meeting was in progress.
[The committee observed a moment of silence in honor of the late
Representative Carl Gatto, whose passing occurred the previous
day.]
SB 210 - CRIMES AGAINST CHILDREN/SUPPORT/CINA
[Contains brief mention that provisions of SB 186 and SB 212
have been incorporated into a proposed House committee
substitute for SB 210, Version O.]
1:19:19 PM
VICE CHAIR THOMPSON announced that the first order of business
would be CS FOR SENATE BILL NO. 210(FIN), "An Act relating to
crimes against children; and providing for an effective date."
VICE CHAIR THOMPSON noted that a proposed House committee
substitute (HCS) for SB 210 in members' packets now encompasses
three bills, with Sections 1-4 pertaining to SB 210, Sections 5-
17 and 20 pertaining to SB 186, and Sections 18-19 pertaining to
SB 212.
1:21:42 PM
REPRESENTATIVE HAWKER moved to adopt the proposed House
committee substitute (HCS) for SB 210, Version 27-LS1362\O,
Wayne, 4/10/12, as the working document.
VICE CHAIR THOMPSON objected for the purpose of discussion.
1:22:34 PM
AMY SALTZMAN, Staff, Senator Lesil McGuire, Alaska State
Legislature, relayed, on behalf of the sponsor, Senator McGuire
that she would be discussing the portions of Version O that
incorporate the provisions of SB 210. She explained that on
2/8/12, the Alaska Children's Justice Act Task Force presented
findings to a joint meeting of the Senate Judiciary Standing
Committee and the Health & Social Services Standing Committee,
and recommended improvements to Alaska's statutes addressing
crimes against children. According to statistics, in 2008,
approximately 12,400 children were likely the victim of an
incident of maltreatment, and one out of every five children's
deaths was related to maltreatment. She then offered a couple
of examples of recent [heinous] crimes perpetrated against
children to illustrate how existing law is inadequate for
purposes of appropriately punishing those who do such harm to
children. Via SB 210, she relayed, the sponsor is seeking to
implement three of the recommended changes in order to address
shortcomings in existing law.
MS. SALTZMAN explained that [Section 1 of Version O] would raise
the child-victim's age threshold in AS 11.41.220(a) - addressing
the crime of assault in the third degree - from 10 years of age
to 12 years of age. [Sections 2 and 3 together, in amending AS
11.51.100(a) and (f) respectively,] would make the behavior of
recklessly failing to provide adequate food or liquids to a
child sufficient to cause protracted impairment of his/her
health a Class C felony; AS 11.51.100 addresses the crime of
endangering the welfare of a child in the first degree.
[Section 4] would modify the definition in AS 11.81.900(56)
regarding what constitutes a "serious physical injury";
Section 4's proposed AS 11.81.900(56)(C) reads:
(C) physical injury to a person under 12 years of age
that causes
(i) serious disfigurement;
(ii) impairment of health, by serious bruising or
other injury, that reasonably requires medical
evaluation or treatment by a health care professional;
(iii) loss or impairment of the function of a
body member or organ; or
(iv) serious impediment of blood circulation or
breathing;
MS. SALTZMAN added that in Section 4's proposed
AS 11.81.900(56)(C), sub-subparagraph (ii) focuses on the
impairment of the child's health sufficient to require medical
evaluation or treatment - and, as currently worded, could apply
in situations where, for example, a child develops anemia
because of being subjected to serious bruising or other injury;
and that sub-subparagraph (iv) is intended to address
strangulation crimes in which the strangulation itself could not
be proven but bruising was evident.
1:27:14 PM
REPRESENTATIVE HOLMES referred to Section 2's proposed new
AS 11.51.100(a)(4), which read:
(4) recklessly fails to provide
adequate food or liquids to a child, causing
protracted impairment of the child's health.
REPRESENTATIVE HOLMES asked whether the phrase, "adequate food
or liquids" refers to the quantity of the food or liquids, or to
its nutritional value.
MS. SALTZMAN explained that the key wording in that provision
is, "causing protracted impairment of the child's health"; in
other words, if the food or liquids provided were inadequate -
in terms of either quantity or nutritional value - to the point
of causing the protracted impairment of the child's health, then
that provision would apply.
1:29:17 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), cited
Blakely v. Washington, 124 S. Ct. 2531 (U.S., 2004), which held
that if the finding of a fact could increase the possible
maximum penalty for a person charged with a crime, that fact
needs to be found by the jury by proof beyond a reasonable
doubt. She said that decision made a huge impact on Alaska's
sentencing law, because Alaska had a procedure regarding a
presumptive term and aggravating, mitigating factors, which the
court at sentencing had to find by clear and convincing
evidence. She said one exception to the Blakely ruling is if
the aggravating factor is a prior conviction that has been found
by a previous jury. She related that mitigating factors are
still found by clear and convincing evidence to a court at
sentencing.
MS. CARPENETI said the fallout from the Blakely decision has
been long and drawn out because of many factors not anticipated
by the state when it rewrote its sentencing law in 2005. She
said SB 210 addresses many of those provisions and clarifies
procedures in statute that have been enunciated in case law.
1:32:58 PM
MS. CARPENETI stated that Sections 5, 6, and 7 pertain to people
who are found guilty but mentally ill. She explained that
Alaska law provides that a person who is found guilty but
mentally ill is not entitled to mandatory parole - sometimes
called, "good time" - until that person has been found to no
longer be a danger to the public. She said the possibility that
a person convicted of a crime and found to be guilty but
mentally ill would not be given good time like other defendants
means that the maximum term rises, thus requiring the issue to
be submitted to the jury, which must find proof beyond a
reasonable doubt in order for that person to be found guilty but
mentally ill. She stated that a person no longer has a right to
good time; he/she may or may not qualify.
1:33:56 PM
REPRESENTATIVE HOLMES surmised that a finding of guilty but
mentally ill could be considered to increase the penalty by not
allowing good time.
MS. CARPENETI said yes.
REPRESENTATIVE HOLMES asked, "In other sentences doesn't it also
decrease the penalty?"
MS. CARPENETI answered no. She said under current law a person
found guilty but mentally ill is treated for that illness, but a
person found guilty for the crime is entitled to good time
unless he/she has problems in the correctional system - he/she
is entitled to one-third of his/her sentence off for good time.
A person found guilty but mentally ill may not qualify for that
good time, because he/she still may present a danger to the
public.
MS. CARPENETI, in response to a question, explained that people
who are found not guilty by reason of insanity are generally in
a situation where their illness prevented them from forming the
culpable mental state to commit the crime. People who are found
guilty but mentally ill are found to have committed all the
elements of the crime, but they have an illness that may have
affected their behavior.
1:36:26 PM
MS. CARPENETI, returning to her presentation, explained that
Section 8, on page 5, is a "catchall" provision. Under
sentencing law, as originally formulated in the 1980s, most
factual findings were found by a preponderance of the evidence.
As a result of the changes in law that have been made, there are
many sections besides those currently accepted in Section 8 that
have a different burden of proof. She said it is better to have
a general catchall so that factual issues in Title 12, Chapter
55, are decided by a preponderance of evidence unless the
statute itself says something else, which many statutes do as a
result of the Blakely decision.
MS. CARPENETI said Sections 9 and 10 address a situation that
arose most recently in State v. Henry. She explained that the
Henry decision by the Court of Appeals allowed the court to
reduce the period of probation in cases where the defendant was
convicted as the result of a negotiated plea, and Section 9 and
10 would disallow that reduction unless both parties agree to
the change. The reason for this is that when the state and the
defense enter into plea negotiations, both sides give up things
and gain things in exchange. She offered her understanding that
in the Henry case, the defendant was sentenced under the plea
agreement, violated his probation, and came back to court and
asked for the period of probation to be reduced. She said the
state opposed the request, because he had agreed to that amount
of time and the state had reasons for requiring that amount of
probation to protect the public. The court found that the
sentencing court should reevaluate the Chaney criteria [from the
Alaska v. Chaney case, codified in AS 12.55.005] and resentence
the person. She said the DOL's position was that the court
should look at the criteria, but should not reduce the period of
probation that the defendant and state have reached through
bargaining and agreement. In response to Representative Holmes,
she confirmed that Sections 8 and 9 are a policy call.
1:40:30 PM
REPRESENTATIVE GRUENBERG surmised that the key language is that
the court may not reduce the period of probation, and he
suggested that may be an infringement on the judicial
prerogative. He asked if that is constitutional.
MS. CARPENETI answered that she believes it is because it is the
result of a negotiated plea that the court has accepted.
REPRESENTATIVE GRUENBERG said Ms. Carpeneti is impugning the
principles of contract law into sentencing and saying that
trumps the right of the sentencing judge to apply his/her
independent judgment, which is based on his/her independent role
as the final interpreter of laws. He asked if Ms. Carpeneti has
authority to support whether that is constitutional.
MS. CARPENETI said she would provide it.
REPRESENTATIVE GRUENBERG said he questions the
constitutionality, particularly if Ms. Carpeneti is saying that
the court has the authority to increase the sentence, but not
the authority to consider factors in mitigation that might
reduce the probation. He offered his understanding that Ms.
Carpeneti had said that the court could increase the sentence
because of the probation [violation].
MS. CARPENETI confirmed that is correct.
REPRESENTATIVE GRUENBERG opined that if the court can do that
based on the circumstances that led to the probation violation,
then it should be equally free to consider factors in
mitigation.
MS. CARPENETI said she would provide backup information.
REPRESENTATIVE GRUENBERG said he would like to see the Henry
case that goes opposite to the DOL's position, as well as to
hear from "the other side."
MS. CARPENETI said it is a policy call. She said the DOL
entered into an agreement, in the process of which it dropped
some charges, which it is no longer in a position to reinstate.
She reiterated her statement that the defendant violated the
conditions of his probation and that the court, under those
circumstances, should not be able to reduce the terms that were
already agreed upon by the parties for what is a violation of
probation.
1:45:30 PM
MS. CARPENETI stated that Section 11 addresses the sentencing
provisions for murder in the first degree and the mandatory term
of imprisonment for certain offenses. Currently, statutes
provide that the court can find, by clear and convincing
evidence, that the defendant subjected the victim to substantial
physical torture and that the defendant is a peace officer who
used his/her authority in facilitating the murder. She said
this is no longer the law. Under Blakely v. Washington, the
state has to prove these factors by proof beyond a reasonable
doubt to get a mandatory 99-year term of imprisonment. Section
11 would change Alaska statute to comply with what the law
already is.
MS. CARPENETI said Section 12 sets out procedures already
required by the Blakely v. Washington decision, such that the
facts that establish and justify a 99-year mandatory term, which
is not eligible for good time, have to be determined by a jury
beyond a reasonable doubt. She directed attention to subsection
(p), on page 6, and talked about ranges within the presumptive
sentencing law. For example, she said the presumptive range is
7-11 years for a Class A felony if the person possessed a fire
arm at the time he/she committed the felony. She said there are
various factors already in law in terms of increasing the range;
Section 12 clarifies that those factors have to be proven to the
fact finder by proof beyond a reasonable doubt.
REPRESENTATIVE GRUENBERG referred to "procedures set by the
court", shown on page 6, line 27, and he asked if that means the
procedures are set by the trial court or set by court rule.
1:50:36 PM
MS. CARPENETI answered that the language recognizes that when
the verdict is reached is the time when the court may make
arrangements if the same jury must, at that point, deliberate
over whether or not aggravating factors have been found. She
stated, "It's hard to set out with ... a lot of detail how a
judge, under the circumstances, should do it; it just recognizes
that a judge will ... adopt whatever procedures work in terms of
that jury and that ... case." In response to a question, Ms.
Carpeneti said she does not see this as a legal decision, but
rather as a practical consideration of, for example, whether
there is room for a jury to go back and deliberate aggravating
factors or the judge could let them go home for the night and
deliberate the next day. She said the language is intended to
recognize the fact that certain decisions and procedures need to
be made in the moment.
1:52:57 PM
MS. CARPENETI stated that Section 13, subsection (i), addresses
one particular aggravating factor, which is that when the
conduct of the defendant when he/she committed the crime was
among the most serious, as defined by the court, the jury shall
make an assessment of the facts by proof beyond a reasonable
doubt. In response to questions from Representative Gruenberg,
she explained that the court would give the jury the opportunity
to determine whether the state has proven these facts by proof
beyond a reasonable doubt, and once that has happened, if the
jury decides the factors are present, then the court would apply
those factors to a consideration of whether or not they are the
most serious.
1:56:56 PM
REPRESENTATIVE GRUENBERG asked whether that provision would
raise constitutional problems.
MS. CARPENETI attempted to clarify that this language pertains
to the time after which the jury has found the defendant to be
guilty, directly after the verdict is returned, and to a
situation in which the state says it would like to establish the
aggravating factor that the defendant's conduct was the most
serious in the definition of the offense. She offered an
example. She said DOL thinks that Blakely requires the state to
submit to the jury, directly after the verdict is read, the
factors it claims would justify defining the conduct as the most
serious in the definition of the defense, for example, that the
defendant caused the victim an injury that made the victim
unable to walk for the rest of his/her life. Consideration of
those facts would be submitted to the trial jury, which would
determine whether the state had proven them beyond a reasonable
doubt. The court would then make the legal decision based on
that information. She agreed to provide cases. She confirmed
that the ultimate finding of fact must be left to the jury, but
said whether the conduct was the most serious, within a range,
is a question of law. She said, for example, that there are
several ways that a person can commit assault in the first
degree, and the judge would be able to evaluate that law and
apply the facts that are found by the jury to all the
definitions of assault in the first degree or by all the
definitions of theft in the second degree.
2:03:57 PM
MS. CARPENETI directed attention to subsection (j), which would
allow the court to increase the term of imprisonment to the
potential maximum so that the remaining factors in aggravation
can be proved by clear and convincing evidence to a jury.
MS. CARPENETI said Sections 14 and 15 are conforming to the
proposed change in Sections 9 and 10, regarding the change of a
sentence as a result of a probation violation. Section 16 is
the indirect court rule amendment. She explained that when
changes are made in sentencing provisions, care is taken to note
court rules that might be changing. She said the provisions in
the previously discussed subsection (p) "may have the effective
change in the court rule," although she said she does not think
so. She briefly mentioned the applicability section [Section
17]. She said Section 18 addresses human trafficking and
requires the DOL to establish a task force with representatives
of the DOL, the Department of Public Safety, and the Department
of Health & Social Services, and two members, appointed by the
governor, representing nongovernmental health and social
services providers. She explained the purpose of the task force
is to study the prevalence of human trafficking in Alaska,
including: how many cases have been submitted to law
enforcement, how many cases have been prosecuted, how many times
the state has cooperated with the federal government in
prosecuting or investigating human trafficking, and which
services are available to victims of these offenses. She opined
that it would be good to have a clear idea of where Alaska
stands regarding human trafficking in the state, and this
information would help the legislature decide whether the
state's laws need to be changed or if anything else needs to be
done to address the issue.
REPRESENTATIVE GRUENBERG suggested consideration be given to
include legislators on the task force.
2:08:04 PM
MS. SALTZMAN offered her understanding that the intent of the
proposed task force is to advise the legislature, at which point
the legislature could make decisions based on that information.
Notwithstanding that, she agreed to provide that suggestion to
the sponsor.
2:09:19 PM
REPRESENTATIVE GRUENBERG referred to the language on page 9,
line 23, which states that the task force "shall hold at least
one public meeting". He expressed concern that that may result
in the task force holding only one meeting.
MS. SALTZMAN surmised that that language could be changed;
however, she pointed out that the task force may want the
majority of its meetings to be private, because it discusses
private issues.
MS. SALTZMAN, in response to Representative Keller, confirmed
that the required minimum one public meeting would occur within
a year, because the task force expires after one year.
REPRESENTATIVE LYNN remarked that he thinks the language
regarding at least one meeting is clear.
2:11:27 PM
REPRESENTATIVE GRUENBERG questioned whether the proposed task
force would be subject to the Open Meetings Act, and he asked
under what conditions Ms. Saltzman anticipated the meetings
would not be public.
MS. SALTZMAN agreed to conduct further research on the issue.
REPRESENTATIVE GRUENBERG suggested that the task force may be
able to keep the identities of the people being discussed
confidential, while allowing the public to attend the meetings.
REPRESENTATIVE HOLMES emphasized the need to keep victims safe.
2:13:53 PM
DOUGLAS MOODY, Deputy Public Defender, Criminal Division,
Central Office, Public Defender Agency (PDA), Department of
Administration (DOA), referred to Section 4, in which
subparagraph (C) is proposed as new language to amend AS
11.81.900(56). He pointed out that the term "serious
disfigurement" is used in subparagraph (C), sub-subparagraph
(i), [page 4, line 3], and he said he does not know if that term
is intended to have a definition different from "protracted
disfigurement", which is the standard definition used in Section
4, subparagraph (B), [on page 3, line 29]. Mr. Moody referred
to the phrase, "reasonably requires medical evaluation or
treatment by a health care professional", which is in reference
to "impairment of health, by serious bruising or other injury" -
further proposed language of subparagraph (C), [as shown in sub-
subparagraph (ii), on page 4, lines 4-6]. He said his
experience has shown that parents with good health insurance
take their children to the doctor all the time, while parents
without good health insurance are more reticent about taking
their children to see a doctor. He said the parents without the
good insurance are not necessarily putting their children in
danger, but it is "a different decision tree."
2:16:48 PM
REPRESENTATIVE HOLMES, regarding "reasonably requires medical
evaluation or treatment by a health care professional",
expressed concern regarding stiff penalties being set for a low
bar. She then referred to the phrase, "physical injury to a
person under 12 years of age", and she asked about the age of
the perpetrator and whether consideration had been given to
children hurting each other while playing in a playground, for
example.
MR. MOODY responded that that could be an issue. He said in one
of the definitional provisions, "serious physical injury" is an
element of assault. He said Assault 1 is an automatic waiver
statute. He relayed that a high school student who is 17 years
of age could end up automatically waived on felony assault
charges, whereas a child 12 years of age, in junior high school,
could end up charged with Assault 1, but within the juvenile
system. He added, "It would apply to a juvenile, because this
is just the definition of 'serious physical injury', not the
definition of the offense."
2:19:37 PM
REPRESENTATIVE GRUENBERG disclosed that when he was a child, he
assaulted another child who had kicked him, and he said he would
not have wanted to be charged with a felony as a result.
2:20:40 PM
MR. MOODY directed attention to language on page 3, lines 19-20,
which read: "(4) recklessly fails to provide adequate food or
liquids to a child, causing protracted impairment of the child's
health." He said he had viewed this language as referring to
starvation prevention until he heard Representative Holmes ask
about the adequacy of the type of food provided. Now, he said,
he questions whether someone might be charged with a crime for
giving too much soda pop and sweets to his/her child, who then
becomes fat and gets Type II Diabetes. He said that is a
protracted health impairment, which "would appear to follow from
that."
2:21:51 PM
MR. MOODY directed attention to Section 6, on page 4, regarding
guilty but mentally ill (GBMI) provisions, which he said
currently do not affect many clients. He explained that a
defense council will do everything possible to avoid a GBMI
verdict, because it results in greater punishment for the
client, since they don't get paroled and are not eligible for
early release to a halfway house. He suggested that a review
provision be added to the bill in order to ensure the
opportunity for someone with a GBMI verdict to show that he/she
should be eligible for parole. Currently, he explained, a
person found GBMI at a trial or change of plea hearing has no
opportunity to have the finding reviewed, even if the person
ends up medicated, stabilized, and a model prisoner.
2:23:36 PM
MR. MOODY directed attention to Section 10, on page 5, and said
this is the provision that prohibits the court from adjusting
the sentence at all if someone comes back on a probation
revocation. He said the basic premise of the 2010 case, State
v. Henry, to which Ms. Carpeneti referred, was that whenever a
defendant who is on probation comes back before the court for a
probation violation, the court must reevaluate the sentence and
impose the proper sentence based on the Chaney criteria, given
the original conduct and all the intervening conduct, rather
than just impose all the suspended time. He said that has been
the law in Alaska since at least the 1980s. He said he thinks
the provision has potential constitutional issues, because there
will never be a situation where there will be direct appellate
review of a sentence. He explained that currently the Court of
Appeals does not review suspended time in sentences, but takes
the position that it will review a sentence only to determine
whether it was appropriate under Chaney criteria once the time
is imposed, because if it is never imposed, it is never an
issue. He said, "With this change in the law, it would never
... get presented, because the court would never reduce it and
decide whether the entire sentence - suspended time and
unsuspended time - was appropriate in light of Chaney."
MR. MOODY said the constitutional issue is in trying to remove
the ability of the court to evaluate the sentence as a whole.
As a matter of policy, most sentences are negotiated so that
both the state and the defense end up giving up something. He
said a defendant is offered jail time, but with a lot of
suspended time; it is not an equal bargaining position between
the state and the defendant. He stated that all defendants
think they will do well on probation. Without the evaluation of
the appellate court, clients will enter into bad deals against
the advice of counsel, because "whatever happens on the road,
they're getting out today."
2:27:59 PM
REPRESENTATIVE GRUENBERG asked Mr. Moody to confirm that
currently the Court of Appeals does not review the imposition of
a suspended sentence, because the suspension is still "out
there" and may never be imposed; therefore, that issue would
not, in a legal sense, be ripe for decision at the time the
court enters it.
MR. MOODY said that is correct. For example, he said if a
defendant gets five years with two years suspended, an appeal
could be made related to the excessiveness of the three years
imposed, but the court would not address whether the extra two
years were excessive until they are imposed, because they might
never be imposed. In response to Representative Gruenberg, he
said he thinks the decision of whether a person is adhering to
his/her suspended sentence probation schedule or should have the
suspended portion of the sentence imposed should be left up to
the judge to determine, which is current practice.
2:33:02 PM
MR. MOODY stated that Section 13, on page 7, would split the
aggravating factor finding for most serious conduct into two
parts. He said he disagrees with the DOL's interpretation of
this provision. He said the U.S. Supreme Court in Blakely said
that factual findings that increase a sentence need to be found
by the trial jury beyond reasonable doubt. He said the factual
finding is that this conduct was amongst the most serious within
the class, and he said he thinks that can be tried to a jury.
He said there is a range of injury that the state is fully
capable of presenting the evidence to show. He said he thinks
the splitting of the aggravating factor finding would be found
unconstitutional.
REPRESENTATIVE GRUENBERG referred to Section 18 and asked Mr.
Moody if he thinks someone from the Office of the Public
Defender should be represented on the aforementioned taskforce.
MR. MOODY said he thinks the PDA would be a valuable member of
the task force, but said that that is the call of the
legislature.
REPRESENTATIVE GRUENBERG questioned whether a member of the
judiciary branch should be invited, as well.
2:37:46 PM
JOSHUA DECKER, Staff Attorney, American Civil Liberties Union of
Alaska (ACLU of Alaska), noting that the ACLU of Alaska has
submitted written testimony, explained that the ACLU of Alaska's
concern with SB 210 is its proposal to expand the definition of
the term, "serious physical injury" because doing so could have
ramifications throughout criminal law. Regarding Representative
Holmes' previously stated example of children hurting each other
on the playground, he said the ACLU of Alaska thinks that those
types of juvenile criminal antics could result in criminal
liability. Further, he said if the child injured on the
playground goes to the school nurse and the nurse fails to
report the incident to the police, she could be guilty of a
Class A misdemeanor. In the context of domestic violence, Mr.
Decker said changing the definition could open up new defenses
for domestic abuses. Alaska currently permits use of
justifiable deadly force to avoid imposing serious physical
injury on oneself or another, and Mr. Decker said the ACLU of
Alaska can foresee a circumstance where an individual abuses
his/her spouse and then takes the position that the abuse was
necessary to protect the children from imminent physical danger.
He said the ACLU of Alaska does not think that is the intent of
the drafters and recommended a new approach be taken to narrowly
target the specific instances of child abuse, endangerment, and
neglect, rather than modifying such a fundamental part of Alaska
criminal law that would have far reaching consequences.
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on SB 210.
The committee took an at-ease from 2:41 p.m. to 2:43 p.m.
VICE CHAIR THOMPSON relayed that SB 210 would be held over [with
the motion to adopt Version O as the work draft left pending].
SB 122 - REAL ESTATE TRANSFER FEES/TITLE INSURANCE
2:45:10 PM
VICE CHAIR THOMPSON announced that the next order of business
would be CS FOR SENATE BILL NO. 122(L&C), "An Act relating to
research on and examination of titles; relating to residency
requirements for title insurance limited producers; relating to
real estate transfer fees; and providing for an effective date."
[Before the committee was HCS CSSB 122(L&C).]
2:45:57 PM
DANA OWEN, Staff, Senator Dennis Egan, Alaska State Legislature,
on behalf of the sponsor of SB 122, the Senate Labor and
Commerce Standing Committee, which is chaired by Senator Egan,
explained that SB 122 would limit who may conduct searches and
examinations of title to only licensed title insurance limited
producers, would statutorily stipulate that only residents of
Alaska may be issued such licenses, and would preclude the use
of transfer fee covenants. On the latter point, he relayed that
in 1852, the courts in New York outlawed transfer fee covenants,
describing them as a vestige of feudalism, and that since then,
41 other states have also outlawed the practice. In addition to
outlawing the use of transfer fee covenants in Alaska via
Section 3, the bill is also intended to address concerns that
future imperfections in title could result if title
searches/examinations are performed by people who don't live in
Alaska. Specifically, Section 1 of the bill would require that
all title searches be done through licensed title insurance
limited producers, and Section 2 would require that such
licenses be issued only to residents of Alaska. He
acknowledged, however, that the drafter has pointed out that
Section 2 could potentially be ruled unconstitutional by the
court; each of the prior committees of referral discussed this
issue but chose to retain Section 2 in the bill regardless.
REPRESENTATIVE GRUENBERG suggested that a severability clause be
added to the bill if the aforementioned language remains.
MR. OWEN said the sponsor would not object to the addition of a
severability clause, and noted that members' packets contain
[memorandums] from Legislative Legal and Research Services
addressing the issue of Section 2's constitutionality.
2:51:56 PM
KIMBERLY GLISSEN, General Manager, Alaska Escrow & Title
Insurance Agency, Inc., said she is in favor of SB 122,
specifically, Sections 1 and 2 because she believes steps must
be taken to keep jobs local and prevent outsourcing, and
Section 3 because of the savings it will provide to consumers.
Overall, she opined, SB 122 will help protect jobs, consumers,
and property owners in Alaska.
2:53:49 PM
CHRIS NEWBILL, Manager, Ketchikan Title Agency, Inc., testified
in favor of SB 122 and said she concurs with the testimony of
Ms. Glissen.
REPRESENTATIVE GRUENBERG noted that the aforementioned
memorandums in members' packets are dated February 15, 2012, and
March 15, 2012; and, in response to a question, explained that
the term, "provision" as used in Section 3 of SB 122 refers to a
provision in the document that conveys real estate.
2:57:17 PM
MICHEAL PRICE, Co-Owner, Mat-Su Title Insurance Agency, Inc.;
Co-Owner, Fidelity Title Agency of Alaska, after mentioning
industry-associated positions he's held within the Alaska Bar
Association (ABA) and the Alaska Land Title Association (ALTA),
testified in support of SB 122, and expressed disagreement with
the drafter's comments in the aforementioned memorandums that
Section 2's proposed residency requirement might be found
unconstitutional. Noting that his company gets solicitations
from people in foreign countries to conduct title
searches/examinations of property in Alaska, concurred that the
intent of the bill is to require those who conduct such
searches/examinations of property in Alaska to be Alaska
residents and thereby be subject to Alaska law. He offered his
understanding that 13 states have passed a similar residency
requirement, and said he thinks Alaska has the right to do so as
well since no waiting period is required in order to become a
resident. In conclusion, he too noted that 41 states now ban
[transfer fee covenants], and asked that Alaska do so as well.
3:06:06 PM
ROGER FLOERCHINGER, Owner, President & CEO, Yukon Title Company,
Inc., testified in support of SB 122 as currently written and
stressed the importance of providing for what he termed "Alaska
hire."
3:08:07 PM
STEPHAN ROUTH, Attorney at Law, Routh Crabtree Olsen, P.S. -
mentioning that he's owned title agencies in Washington, Oregon,
Idaho, California, Nevada, Arizona, and Hawaii - said he has
concerns about Section 2 of SB 122, but characterized
Section 3's proposed ban on transfer fee covenants as something
that should have been instituted long ago. With regard to
Section 2, he noted that in the aforementioned memorandums, the
drafter has said in part: "In my opinion, it seems likely that
a court construing the proposed residency requirement would find
the provision unconstitutional". He said he appreciates the
suggestion to insert a severability clause into the bill, but
opined that a better approach - from a financial perspective,
given the high cost associated with litigating constitutionality
issues - would be to simply delete Section 2. Referring to an
earlier comment, he said his research shows that only [8] states
still have a specific residency requirement, and that the trend
is for states to instead move away from having such a
requirement. Regarding the concern about outsourcing title
searches/examinations to people in other countries, he offered
his belief that nothing in the bill would prevent that from
occurring, because the bill addresses the issue of licensure -
not the actual work itself. In conclusion, he again suggested
that Section 2 be removed from SB 122.
3:14:20 PM
CRYSTAL PELTOLA, Vice President & General Manager, Alaska USA
Title Agency, concurred with Mr. Routh's testimony and stated
support of Section 3 of SB 122, but expressed concern regarding
the constitutionality of Section 2. She pointed out that
Section 2, in addition to perhaps being unconstitutional, seems
to contradict itself in that it says both that a title insurance
limited producer shall be licensed in the manner provided for in
AS 21.27 - which provides for the licensure of both residents
and nonresidents - and that a title insurance limited producer
may not obtain a license unless [he/she] is a resident of the
state. In conclusion, she said Alaska USA Title Agency would
support SB 122 if Section 2 were deleted.
REPRESENTATIVE GRUENBERG noted that Section 2 addresses what's
required to obtain a license, not what's required to maintain
such licensure; in other words, a resident could obtain a
license to be a title insurance limited producer, and then move
out of state and still be licensed in Alaska.
3:17:32 PM
TERRY BRYAN, Vice President & State Manager, First American
Title Insurance Company, characterized SB 122's proposed
residency requirement as disruptive to the flow of commerce and
inconsistent with common sense, particularly given that the end
product - the title insurance policies themselves - all
originate outside of Alaska, and given that no other segment of
the real estate industry in Alaska operates under such a
residency requirement. With regard to the concern that future
imperfections in title could result if title
searches/examinations are performed by people who don't live in
Alaska, he predicted that the marketplace would remedy any such
problems that actually do arise.
3:22:06 PM
HOWARD HANCOCK, Chief Title Officer, Fidelity Title Agency of
Alaska, relayed that he was testifying in support of SB 122. He
offered his understanding that the current practice of the
Division of Insurance - as stated on its web site - is to grant
licenses to residents only, even though AS 21.27.150(5) appears
to allow for the issuance of what's called a nonresident limited
producer license. The intent of SB 122, he surmised, is to
correct what industry feels to be conflicting statutory
provisions and provide guidance to the division in light of its
existing practices. Further, it would help protect the jobs of
title examiners in Alaska, who understand the industry laws
unique to the state. In conclusion, he reiterated his support
for SB 122, and urged the committee to pass it.
3:24:44 PM
LINDA HALL, Director, Anchorage Office, Division of Insurance,
Department of Commerce, Community & Economic Development
(DCCED), in response to questions, indicated the
administration's attorneys have reviewed the aforementioned
memorandums from the drafter and have concurred that Section 2
might potentially be found unconstitutional, though she's not
yet received a written legal opinion on the issue.
3:26:15 PM
JERRY REED, President, Alaska USA Mortgage Company, LLC, said
that generally his company is in support of Section 3 of SB 122,
but is not in support of Section 2, believing that it would
limit both consumer choice and market competitiveness.
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on SB 122.
The committee took an at-ease from 3:28 p.m. to 3:29 p.m.
3:29:57 PM
REPRESENTATIVE GRUENBERG made a motion to delete Section 2.
REPRESENTATIVE HOLMES objected, and said she'd prefer that
Section 2 be left in the bill.
REPRESENTATIVE GRUENBERG cautioned against adopting a
potentially unconstitutional provision, spoke about the cost of
litigating Section 2's constitutionality, and predicted that
that provision isn't going to work as intended anyway because
merely having an office in Alaska would suffice for purposes of
obtaining licensure even though the actual work gets conducted
elsewhere by nonresidents. He too noted that in the
aforementioned memorandums, the drafter has said in part: "In
my opinion, it seems likely that a court construing the proposed
residency requirement would find the provision unconstitutional
as a violation of the privileges and immunities clause of the
U.S. Constitution".
REPRESENTATIVE HAWKER expressed disfavor with Amendment 1, and
offered his belief that it remains unclear what the ultimate
consequences of adopting Section 2 will be.
A roll call vote was taken. Representatives Lynn, Keller, and
Gruenberg voted in favor of Amendment 1. Representatives
Holmes, Pruitt, Thompson, and Hawker voted against it.
Therefore, Amendment 1 failed by a vote of 3-4.
3:33:30 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 2, to add a severability clause to SB 122.
REPRESENTATIVE HAWKER objected and pointed out that all
legislation is automatically severable [under AS 01.01.030].
REPRESENTATIVE PRUITT concurred, and said he does not see the
necessity of adding a severability clause to the bill.
REPRESENTATIVE GRUENBERG argued that including a severability
clause wouldn't do any harm and would be prudent.
3:37:16 PM
A roll call vote was taken. Representatives Gruenberg and Lynn
voted in favor of Conceptual Amendment 2. Representatives
Holmes, Keller, Pruitt, Thompson, and Hawker voted against it.
Therefore, Conceptual Amendment 2 failed by a vote of 2-5.
3:37:54 PM
REPRESENTATIVE KELLER moved to report HCS CSSB 122(L&C) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, HCS CSSB 122(L&C) was
reported from the House Judiciary Standing Committee.
3:39:00 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:39 p.m.