02/12/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB218 | |
| HB255 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 218 | TELECONFERENCED | |
| *+ | HB 255 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 12, 2014
1:10 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Neal Foster
Representative Gabrielle LeDoux
Representative Charisse Millett
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 218
"An Act relating to the aggravating factor at felony sentencing
of multiple prior misdemeanors when a prior misdemeanor involves
an assault on a correctional employee."
- HEARD & HELD
HOUSE BILL NO. 255
"An Act relating to unmanned aircraft systems; and relating to
images captured by an unmanned aircraft system."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 218
SHORT TITLE: PENALTY: ASSAULT ON CORRECTIONAL EMPLOYEE
SPONSOR(s): REPRESENTATIVE(s) CHENAULT, MILLETT, HERRON, LYNN
01/21/14 (H) PREFILE RELEASED 1/10/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) JUD
02/12/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 255
SHORT TITLE: UNMANNED AIRCRAFT SYSTEMS
SPONSOR(s): REPRESENTATIVE(s) HUGHES, HIGGINS, THOMPSON, PRUITT
01/21/14 (H) PREFILE RELEASED 1/17/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) STA, JUD
01/28/14 (H) STA AT 8:00 AM CAPITOL 106
01/28/14 (H) Heard & Held
01/28/14 (H) MINUTE(STA)
02/04/14 (H) STA AT 8:00 AM CAPITOL 106
02/04/14 (H) Moved CSHB 255(STA) Out of Committee
02/04/14 (H) MINUTE(STA)
02/05/14 (H) STA RPT CS(STA) 3DP 4NR
02/05/14 (H) DP: ISAACSON, KREISS-TOMKINS, HUGHES
02/05/14 (H) NR: MILLETT, GATTIS, KELLER, LYNN
02/12/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE MIKE CHENAULT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as one of the joint prime
sponsors of HB 218.
RICHARD SVOBODNY, Deputy Attorney General
Criminal Division
Office of the Attorney General
Department of Law
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 218.
DOUGLAS MOODY, Deputy Public Defender
Criminal Division
Public Defender Agency
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Advised the Public Defender Agency would
like to give testimony at a later date.
RONALD TAYLOR, Deputy Commissioner
Office of the Commissioner
Alaska Department of Corrections
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 218.
TOM WRIGHT, Staff
Representative Mike Chenault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke to research of HB 218.
REPRESENTATIVE SHELLY HUGHES
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as one of the joint prime
sponsors of HB 255.
GINGER BLAISDELL, Staff
Representative Shelley Hughes
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 255, testified
regarding her research of unmanned aircraft systems.
LIEUTENANT STEVE ADAMS
Statewide Search and Rescue Coordinator
Alaska State Troopers
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 255.
DEAN DAWSON, Statewide Archivist
Statewide Archives and Museums
Department of Education
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 255 testified
regarding retention of images.
ACTION NARRATIVE
1:10:27 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:10 p.m. Representatives Foster, LeDoux,
Millet, Pruitt, Gruenberg and Keller were present at the call to
order. Representative Lynn arrived as the meeting was in
progress.
HB 218-PENALTY: ASSAULT ON CORRECTIONAL EMPLOYEE
1:11:33 PM
CHAIR KELLER announced the first order of business would be
House Bill 218, "An Act relating to the aggravating factor at
felony sentencing of multiple prior misdemeanors when a prior
misdemeanor involves an assault on a correctional employee." He
noted an amendment offered by the Department of Law.
1:12:23 PM
REPRESENTATIVE MIKE CHENAULT, Alaska State Legislature, speaking
as one of the joint prime sponsors of HB 218, explained that the
bill was introduced as a result of discussions with a
correctional officer at the Spring Creek Correctional Center who
had been assaulted. He noted that correctional officers are
included in statutes setting the penalties for assault on
certain uniformed officials, except in AS 12.55.155(c)(31), that
covers the aggravating factor of misdemeanors. The aggravating
factor in this statute allows a judge to impose a sentence above
the presumptive range if the defendant has five previous for
convictions class A misdemeanors. Convictions for two crimes
that are part of a single criminal episode are counted as one
prior conviction; however, current law provides that prior
convictions for resisting arrest and/or a misdemeanor while
attempting escape and/or assault on a police officer would each
count as a prior conviction even though they were part of the
same criminal episode. House Bill 218 extends this extra
protection of counting prior for correctional officers by
counting prior convictions for similar crimes committed against
correctional officers. He noted his support for including the
amendment included in the committee packet.
1:16:02 PM
REPRESENTATIVE MILLETT moved that the committee adopt Amendment
1, labelled 28-LS0941\A.2, Strasbaugh, 2/11/14, which read:
Page 1, line 3, following "employee":
Insert "; providing that deportation is not a
proper factor for referral of a case to a three-judge
panel for sentencing for a felony; and providing for
an effective date"
Page 1, following line 4:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of
Alaska is amended by adding a new section to read:
LEGISLATIVE INTENT FOR SECTIONS 3 AND 4 OF THIS
ACT. It is the intent of the legislature that
AS 12.55.165(d), added by sec. 3 of this Act, and
AS 12.55.175(g), added by sec. 4 of this Act, overturn
the decision of the Alaska Court of Appeals in State
v. Silvera, 309 P.3d 1277 (Alaska Ct. App. 2013), and
the Alaska Supreme Court in Dale v. State, 626 P.2d
1062 (Alaska 1980) to the extent that the decisions
hold that the risk of deportation may be considered a
basis for referral of a felony sentencing to a three-
judge panel."
Page 1, line 5:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill section accordingly.
Page 6, following line 4:
Insert new bill sections to read:
"* Sec. 3. AS 12.55.165 is amended by adding a new
subsection to read:
(d) A court may not refer a case to a three-
judge panel under (a) of this section if the request
for referral is based, in whole or in part, on the
claim that a sentence within the presumptive range may
result in the classification of the defendant as
deportable under federal immigration law or that
collateral consequences may or will result if the
defendant is classified as deportable.
* Sec. 4. AS 12.55.175 is amended by adding a new
subsection to read:
(g) A defendant being sentenced under
AS 12.55.125(c), (d), (e) or (i) may not establish,
nor may a three-judge panel find under (b) of this
section or any other provision of law, that manifest
injustice would result from imposing a sentence within
the presumptive range based, in whole or in part, on
the claim that the sentence may result in the
classification of the defendant as deportable under
federal immigration law or that collateral
consequences may or will result if the defendant is
classified as deportable.
* Sec. 5. The uncodified law of the State of Alaska
is amended by adding a new section to read:
APPLICABILITY. (a) Section 2 of this Act applies
to offenses committed on or after the effective date
of this Act.
(b) Sections 3 and 4 of this Act apply to
offenses committed before, on, or after the effective
date of this Act if the sentence is imposed on or
after the effective date of this Act.
* Sec. 6. This Act takes effect July 1, 2014."
REPRESENTATIVE GRUENBERG objected for purposes of discussion.
1:16:35 PM
REPRESENTATIVE MILLETT explained that Amendment 1 includes a
title change, prior to Section 1 is the insertion of a new
section of legislative intent, and a new subsection of Section 3
specifying that a mitigating factor cannot be a reason to have a
three-judge panel under this section of law. She requested that
Mr. Svobody speak to the changes made in Sections 4 and 5.
1:18:04 PM
The committee took a brief at-ease.
[Chair Keller passed the gavel to Representative Pruitt.]
1:19:18 PM
RICHARD SVOBODNY, Deputy Attorney General, Criminal Division
Department of Law, stated that Amendment 1 also provides that a
trial court could not send a case to a three-judge panel to go
below the presumptive minimums on the sentence based upon the
probabilities of deportation. However, if a case does go before
a three-judge panel, the judges cannot make a decision based
upon the probabilities of deportation. Mr. Svobodny agreed with
Representative Millett that deportation could not be used as a
mitigating factor for a trial court to place the case before a
three-judge panel.
1:20:47 PM
REPRESENTATIVE LEDOUX remarked she had mixed feelings about this
issue as she has seen families torn apart as a result of
deportation. On the other hand, it does not seem fair that an
individual could commit a crime, particularly a violent crime,
and receive a lesser sentence because he/she does not have
citizenship. She suggested that if the federal government is
deporting individuals who should not be deported, then the
protest should be with the federal government and not with the
Alaska's presumptive sentencing law.
1:21:51 PM
REPRESENTATIVE GRUENBERG stated he would vigorously oppose
Amendment 1 for the following reasons. First, attempting to
change federal immigration law is impossible. Second, it does
not give defendants a break under state law as it is only non-
citizens that face the additional punishment of being deported.
Third, this legislation divests the three-judge panel of
jurisdiction to decide the issue. Amendment 1 will result in
these individuals not even receiving a hearing.
1:23:43 PM
MR. SVOBODNY, speaking to Representative LeDoux, said that the
question is not between people who are non-citizens and people
who gain citizenship, although they would be treated
differently. The matter is regarding different sentences for
people who do not have citizenship versus people who were born
here, which the Department of Law deems to be fundamentally
unfair. He acknowledged there are many collateral consequences
to being convicted of a crime. For instance, someone three days
from being vested in their retirement system goes to jail; they
will not become vested in that retirement system. A felon not
allowed to vote in an election where that one vote would have
changed the outcome of the election is a collateral consequence.
Amendment 1 attempts to treat people who likely have committed
the same crime equally. Although Representative Gruenberg is
correct that federal law will not be changed, the point is that
those defendants with the possibility of being deported in the
future get a break under current law that those born in the
state do not.
1:26:29 PM
REPRESENTATIVE MILLETT pointed out that in State v. Silvera and
State v. Perez the sentences were lessened due to the
possibility of deportation. The option of a three-judge panel
would not be offered to a U.S. citizen convicted of a crime.
She opined that to allow a non-U.S. citizen the ability to
obtain a lesser sentence than someone who is a U. S. citizen is
discriminatory. She further opined that it does not matter
whether one was born in another country, the crime was committed
in the U.S. and there is the possibility that a non-U.S. citizen
could be deported prior to the conviction of a felony. For
instance, non-citizens could be deported prior to the conviction
of a felony. For instance, non-citizens can be deported when
caught without a green card. Representative Millet conveyed her
belief that Representative Gruenberg is wrong in his
interpretation of Amendment 1, the intent of which is to make
the judicial system fair to everyone and allow everyone the same
opportunities whether they are from this country or not.
Representative Millett said she supports Amendment 1 fully and
believes it would make the judicial system fair and equitable
for all people living in the U.S., especially those living in
Alaska.
1:29:25 PM
REPRESENTATIVE PRUITT opined that the important aspect of this
discussion is that deportation should not be a factor. All
individuals who have committed a crime must be treated on the
same level; the state cannot create two classes of people,
citizens and non-citizens, he stated.
1:30:10 PM
REPRESENTATIVE LEDOUX inquired as to mitigating circumstances
other than deportation that a three-judge panel might consider.
MR. SVOBODNY, before responding to Representative LeDoux,
clarified that the legislature has chosen to establish written
factors that would aggravate the sentencing, which are located
in the first part of this bill. He further clarified that there
is a list of mitigating factors listed in the statute as well.
He said it is an extraordinary remedy to place a defendant
before a three-judge panel, as it is not a written or
aggravating or mitigating factor. In response to Representative
LeDoux, he advised that a serious type of offense when an
individual is coerced by another person [to commit a crime]
would be a mitigating factor, which would reduce a sentence.
1:31:51 PM
REPRESENTATIVE LEDOUX asked whether there are any other
circumstances in which case would be sent to a three-judge panel
to consider other collateral consequences of an incarceration.
1:32:28 PM
MR. SVOBODNY presuming it was a presumptive sentence, advised
that the court had the discretion to use other types of factors,
such as allowing a defendant to serve time every other week in
order to support the family or serving six months instead of
eight months in order to be out of jail in time for the fishing
season. When a defendant is within the range, the court can
consider [collateral consequences] but it must apply the factors
the legislature has established. The legislature set goals for
sentencing, including rehabilitation, deterring people from
committing other crimes, deterring an individual in certain
instances, to isolate a dangerous offender, and aiding victims
in receiving restitution. However, the legislature has not
specified deportation as a factor.
1:34:09 PM
REPRESENTATIVE LEDOUX queried whether there are any instances
[of collateral consequences] that would mandate or allow a case
to go before a three-judge panel.
1:34:43 PM
MR. SVOBODNY replied he could not think of an instance because
it is the non-statutory mitigating factors that place a
defendant before a three-judge panel. When a mitigating factor
is set out in statute, the trial judge can reduce the sentence.
Non-statutory factors are all established by case law that is
based upon a specific circumstance. The Court of Appeals and
three-judge panels have approved "extraordinary potential for
rehabilitation" and "developmental immaturity," as mitigating
factors.
1:36:11 PM
REPRESENTATIVE GRUENBERG expressed the need to hear from the
immigration bar, specifically Ms. Margaret Stock, recipient of
the MacArthur Genius Award, an immigration lawyer, and previous
professor at West Point, as well as the defense bar.
Representative Gruenberg related his understanding that if there
is an aggravator or mitigator in the statutory list of factors,
the trial judge has the authority to apply the factors.
However, if it is not listed in statute, the trial judge only
has the authority to refer the case to a three-judge panel,
which is a very unusual circumstance. The law doesn't say one
way or the other but leaves it was up to the three-judge court
subject to review. Amendment 1, he opined, eliminates the
possibility [of a three-judge panel review] entirely. Under the
current law there is a right to a fair hearing. Certainly, the
judges would determine when a defendant did not deserve a lesser
sentence, but Amendment 1 does not allow the defendant who
deserves a lesser sentence to have a shot at the three-judge
panel, he opined. Representative Gruenberg requested the
committee not make up its mind today and allow both sides to be
heard.
1:40:29 PM
REPRESENTATIVE CHENAULT reminded the committee that earlier
Chair Keller stated it was not his intention to move the bill
out of committee today, which should give people an opportunity
to speak.
1:41:33 PM
REPRESENTATIVE GRUENBERG stated that he does support the
unamended bill, which he hoped would make its way through the
process.
1:42:06 PM
REPRESENTATIVE MILLETT suggested Representative Gruenberg should
review the case law for defendants who used deportation as an
aggravating and mitigating factor in order to make their case
before a three-judge panel. Creating a special class of people
because they are not U.S. citizens and allowing them to receive
a lesser sentence based upon deportation is distinctly wrong,
she opined. She further opined that is not what the justice
system is for or the constitution intended.
1:44:57 PM
REPRESENTATIVE GRUENBERG described legislators as judges who
hand out decisions each time a bill or amendment is voted upon.
Therefore, he expressed the desire for the committee to keep an
open mind.
1:46:29 PM
REPRESENTATIVE PRUITT removed his objection to Amendment 1. He
then related his understanding that Chair Keller wanted to move
forward with adopting the amendment as the bill will come before
the committee for a larger discussion.
REPRESENTATIVE GRUENBERG objected, adding that he did not
believe the committee should vote as he was not in favor of a
vote being taken on the amendment until the committee hears from
as it would be unfair.
1:47:10 PM
The committee took a brief at-ease.
1:48:59 PM
REPRESENTATIVE LEDOUX disclosed she was uncertain as to her
position on Amendment 1 and would prefer hearing from Ms. Stock
and anyone else who wished to testify about [deportation] before
considering the amendment.
1:49:15 PM
REPRESENTATIVE MILLETT stated that if Amendment 1 is adopted
today or later and the committee then determined it to be
unfair, she would be the first person to remove the amendment.
Representative Millet opined that the bill is better with the
inclusion of Amend 1 and she will vote in favor of its adoption.
1:50:25 PM
REPRESENTATIVE PRUITT advised that procedurally the current
motion before the committee is regarding the adoption of
Amendment 1, a motion that would have to be removed by the
sponsor of the amendment.
REPRESENTATIVE GRUENBERG moved to table Amendment 1 until the
next time the bill is heard, which he established is a
procedural precedential motion.
REPRESENTATIVE PRUITT stated the committee could table the
amendment, as well.
1:51:08 PM
The committee took a brief at-ease.
1:51:15 PM
REPRESENTATIVE GRUENBERG offered to withdraw his motion to table
Amendment 1 if Representative Pruitt would make the appropriate
ruling.
REPRESENTATIVE PRUITT related that he did not have a problem
holding Amendment 1 until a future time when he is not the
acting chair. However, if there is a desire from the committee
to go forward with Amendment 1 he would not stop the vote. He
then announced his support of Representative Millett's desire
for Amendment 1.
REPRESENTATIVE MILLETT interjected her understanding that the
committee must first dispense with Representative Gruenberg's
motion to table Amendment 1 before proceeding.
REPRESENTATIVE GRUENBERG reiterated his offer to withdraw his
motion to table the Amendment 1, allows the committee to discuss
the subject, and then he would re-make the motion as he did not
want to table the debate. He said generally when a member of
the committee requests something like this, as a matter of
courtesy it is honored.
REPRESENTATIVE PRUITT asked Representative Gruenberg if he was
withdrawing his motion to table Amendment 1.
REPRESENTATIVE GRUENBERG withdrew his motion to table Amendment
1 for the purpose of debating the issue.
1:53:12 PM
REPRESENTATIVE FOSTER inquired as to Representative Chenault's
preference with Amendment 1 and requested clarification from
Representative Chenault as to whether or not he supported
letting this amendment come back for debate, or preferred to
move it on and thus have the debate on the amendment come up at
its next stop.
REPRESENTATIVE CHENAULT stated his preference to take up
Amendment 1 today and noted his support for Amendment 1.
REPRESENTATIVE GRUENBERG pointed out that this is the only
committee of referral so if it is not debated today, the bill
goes to the floor.
REPRESENTATIVE PRUITT reiterated that the intent is not to move
the bill out of committee today. He advised the current debate
is whether HB 218 will include Amendment 1, or not, for
discussion at a future time.
1:54:53 PM
REPRESENTATIVE MILLETT stated a point of order that the
committee has a motion to table Amendment 1 before it and must
take a vote.
REPRESENTATIVE PRUITT advised that Representative Gruenberg had
previously removed his motion [to table Amendment 1].
REPRESENTATIVE GRUENBERG clarified, "I've removed the motion for
a few minutes for us to discuss it." He reiterated that this is
the only committee of referral for HB 218. He expressed concern
that adoption of Amendment 1 before both side of the issue had
been heard would be premature and that it is unfair to those
people who desire to take the amendment out of the bill.
1:56:21 PM
REPRESENTATIVE MILLETT acknowledged that this is the only
committee of referral for HB 218 and emphasized it was not the
last time the committee would hear the bill. If Amendment 1 is
adopted today it would become part of the bill, and thus be part
of the discussion. She noted her disagreement that adopting
Amendment 1 today would shift the burden. Furthermore, she
opined, if there is an amendment before the committee and there
are the votes to adopt it, it should be adopted. She further
opined that there will be ample time to hear both sides of this
issue, and stated she would not force the bill to move before
its time. Representative Millett suggested there would be a
delay if the committee did not take a vote on Amendment 1 today,
and therefore she requested a vote on Amendment 1.
1:57:54 PM
REPRESENTATIVE CHENAULT articulated he did not want to get into
a debate on whether Amendment 1 is adopted or not. With regard
to Representative Gruenberg's concern over where the burden is
placed if Amendment 1 is adopted, Representative Chenault said
it is no different than introducing a bill someone does not like
and that person must testify in committee and participate in the
process to try to get rid of that bill. This amendment, he
said, is no different than a bill as once it is put into the
process, the committee debates on whether it is good or bad,
right or wrong, or needs to be changed.
REPRESENTATIVE PRUITT suggested that at this point the sponsor
could submit a sponsor substitute, including the amendment, and
the sponsor substitute would come before the committee.
REPRESENTATIVE LEDOUX related it was her preference to hear more
discussion before voting on Amendment 1.
1:59:46 PM
REPRESENTATIVE GRUENBERG assessed that the committee is at a
procedural juncture, which is the same place it is when the
majority leader offers a committee substitute. He pointed out
that it takes a majority vote to adopt the committee substitute
versus the original bill. A majority vote is also required to
remove a section from a committee substitute that was adopted.
However, he opined that it is more important what the members do
now because there is a much greater chance that every single
vote could decide the issue. He highlighted that at least two
members have requested the courtesy of not taking a vote on
[Amendment 1] until [the next hearing]. He questioned what the
rush is and why both side couldn't be heard prior [to the
adoption of Amendment 1]. The aforementioned, he opined, would
not cause harm, although there would be significant harm in
addressing Amendment 1 prior to hearing both sides.
The committee took a brief at-ease.
2:04:14 PM
REPRESENTATIVE PRUITT reminded there was a motion on the floor
to table Amendment 1.
REPRESENTATIVE GRUENBERG clarified that his motion is to
postpone the motion to adopt Amendment 1 until the next time the
bill is heard.
2:04:20 PM
A roll call vote was taken. Representatives Gruenberg and
LeDoux voted in favor of the motion to table Amendment 1
Representatives Millet, Foster, Lynn, and Pruitt voted against
it. Therefore, the motion to table Amendment 1 failed by a vote
of 2-4.
2:04:54 PM
REPRESENTATIVE PRUITT inquired as to whether the committee
wanted to end debate at this time, continue to discuss the
matter, or take the vote.
REPRESENTATIVE FOSTER stated he shared the comments conveyed by
Representative LeDoux. However, if Amendment 1 was adopted
today, and the committee heard from the other side, and he
changed his position on Amendment 1, he would be comfortable
with a vote deleting Amendment 1. Either way, he said he could
make an informed and unbiased decision at that time.
REPRESENTATIVE PRUITT voiced he felt comfortable the issue would
be heard again.
2:05:51 PM
REPRESENTATIVE MILLETT moved that Amendment 1 be adopted.
REPRESENTATIVE GRUENBERG objected.
A roll call vote was taken. Representatives Lynn, Millett,
Foster, Pruitt voted in favor of the adoption of Amendment 1.
Representatives LeDoux and Gruenberg voted against it.
Therefore, Amendment 1 was adopted by a vote of 4-2.
REPRESENTATIVE GRUENBERG announced his intention to move to
rescind [the committee's action in adopting Amendment 1] when HB
218 is brought up again.
2:06:44 PM
REPRESENTATIVE MILLETT, referring to State v. Silvera and State
v. Perez, inquired as to why the Alaska Supreme Court denied the
state's petition for hearing, which then allowed both defendants
to have a three-judge panel.
MR. SVOBODNY answered that the Alaska Supreme Court did not give
the state a reason, which is totally within its discretion, as
most of the time the court simply states it will not hear a
matter.
2:08:21 PM
DOUGLAS MOODY, Deputy Public Defender, Criminal Division, Public
Defender Agency, related that he had missed the first part of
the hearing because his office was unaware of this [bill] until
the middle of this hearing and the attorney who actually worked
on these two cases is on sick leave. Therefore, he requested
that the agency be allowed to present testimony at a further
date when it could present accurate and coherent information for
the committee.
REPRESENTATIVE PRUITT stated that the Public Defender Agency
would definitely have an opportunity to speak at a later date.
2:10:18 PM
REPRESENTATIVE MILLETT directed attention to the following
passage in Deputy Attorney General Svobodny February 11, 2014,
memorandum:
These combined cases involve two noncitizens convicted
of violent felonies. In a drunken rage, Silvera
stabbed a man in the face with a knife after Silvera's
drunken girlfriend began a verbal argument with the
victim. (The girlfriend was casting slurs about the
victim's Native ethnicity). Perez severely beat a
State's witness in Perez's then pending felony drug
case when both the victim and defendant were in a
State confinement facility.
REPRESENTATIVE MILLETT inquired as to why both defendants were
housed in the same facility since they were clearly a threat to
each other. She said she did not believe such situations are
normal.
2:11:47 PM
RONALD TAYLOR, Deputy Commissioner, Office of the Commissioner,
Department of Corrections (DOC), thanked the sponsor of the bill
on behalf of correctional employees. In response to
Representative Millett, Mr. Taylor said he would have to review
the records to ascertain exactly where the victim and defendant
were co-located inside the Fairbanks Correctional Center. When
there is knowledge that a defendant and victim in the same case
are going to be housed in the same facility, they would not be
housed in the same place or be placed in areas where they would
have access to each other.
2:12:39 PM
REPRESENTATIVE MILLETT asked whether [the jail] is informed who
a victim and defendant is when they are incarcerated. She
opined that housing [a victim and defendant] together sets the
stage for conflict, and thus makes it dangerous for the
correctional officers. She questioned whether a policy or a
possible legislative fix is required to ensure so victims and
defendants are not housed in the same facility nor do they have
access to each other in the facility.
MR. TAYLOR clarified that victims and defendants do not have
access to each other during the same time period when housed in
the same facility. The facility, he related is large enough to
segregate the victim and defendant to ensure there is not
conflict between them as that places correctional employees in a
difficult position. He advised that each facility receives
information from the court and when the facility is aware of
such a situation, every precaution is taken to be certain there
is no contact between the victim and the defendant.
2:14:09 PM
REPRESENTATIVE MILLETT requested an explanation as to why Perez
was in the same area and had contact with the witness.
MR. TAYLOR offered to research the issue and provide the
committee with an answer.
2:15:18 PM
REPRESENTATIVE GRUENBERG questioned whether there are other
provisions of law DOC believes should be expanded to include
correctional officers.
MR. TAYLOR responded that DOC has not reviewed whether there are
any other areas of law as that is a legal question. However, he
said that DOC could review that.
REPRESENTATIVE GRUENBERG requested that DOC present the
committee with any requests [provisions of law it believes
should include correctional officers].
2:17:48 PM
TOM WRIGHT, Staff, Representative Mike Chenault, Alaska State
Legislature, pointed out that the committee packet includes a
memorandum from Kathleen Strasbaugh, Legal Services, dated
August 14, 2013. Ms. Strasbaugh was charged with locating
statutes that cover police officers but not correctional
officers. The memorandum specifies the one statute, AS
12.55.155(c) (31), she found that correctional officers are not
covered the same as other uniformed officers.
2:18:38 PM
REPRESENTATIVE PRUITT announced that HB 218 would be held over.
The committee took a brief at-ease.
2:18:52 PM
HB 255-UNMANNED AIRCRAFT SYSTEMS
2:26:15 PM
REPRESENTATIVE PRUITT announced the next order of business would
be House Bill 255, "An Act relating to unmanned aircraft
systems; and relating to images captured by an unmanned aircraft
system." [Before the committee is CSHB 47(STA)]
2:26:53 PM
REPRESENTATIVE SHELLY HUGHES, Alaska State Legislature, speaking
as one of the joint prime sponsors of HB 255, explained that the
bill is the result of recommendations by the Unmanned Aircraft
Systems Legislative Task Force that met over the interim and
received input from the Department of Public Safety (DPS). The
bill allows the University of Alaska to establish a training
program for the operation of unmanned aircraft systems and
speaks to law enforcement operation requirements for use in
criminal investigations, the retention of images, and provides
definitions. Unmanned aircraft systems are an emerging
technology and the task force believes it is important to
harness it for good and at the same time attend to privacy
issues. She opined that Alaska is fortunate to have explicit
[privacy] provisions in its state constitution that are actually
stronger than those in the U.S. Constitution. She noted the
bill applies to DPS and all law enforcement agencies, including
at the local level. Since unmanned aircraft is becoming more
affordable and potentially something that local law enforcement
agencies might decide to use, although she was unaware of any
using it at this time, she opined that it is important to apply
the bill across the board.
2:30:01 PM
REPRESENTATIVE LEDOUX requested the definition of an unmanned
aircraft pilot and crewmember.
REPRESENTATIVE HUGHES directed Representative LeDoux to the
definitions located on page 3, of the bill.
2:30:41 PM
REPRESENTATIVE LEDOUX asked whether there is someone on the
ground pushing a lever that causes the unmanned aircraft to fly.
REPRESENTATIVE HUGHES noted the Federal Aviation Administration
(FAA) addresses all of the safety and operations regarding use
of unmanned aircraft. In response to Representative LeDoux,
Representative Hughes explained there must be a certified pilot
on the ground operating a computer or device and there must be
an observer as well. She further explained that one of the
reasons the legislature set up the task force, she opined, was
that there will be manned aircraft and unmanned aircraft all in
the same air space, and thus the need for qualified crews. She
added there is a target date of 2015 to begin to integrate
unmanned aircraft into national airspace.
2:32:21 PM
REPRESENTATIVE LEDOUX questioned if the crew would be an
assistant to the pilot who is the operator.
2:32:41 PM
GINGER BLAISDELL, Staff, Representative Shelley Hughes, Alaska
State Legislature, specified the definitions of a pilot and
crewmember and unmanned aircraft are consistent with federal
law. She explained that the pilot of an unmanned aircraft is
someone who is actually trained as an airline pilot and able to
speak to an FAA tower as a pilot who understands the language of
operating an aircraft in national air space. Ms. Blaisdell
described the crewmember as a good "gamer," someone who could
work a computer console well, follow the aircraft while watching
it on a screen, read responses coming through the computer, and
determine how to guide the unmanned aircraft and direct it. She
expressed that the combination of an individual with excellent
computer skills and a pilot are the two people needed to operate
an unmanned aircraft.
REPRESENTATIVE LEDOUX surmised then that it is similar to a
grownup computer game except that it involves serious
consequences if the individuals make a mistake.
2:34:00 PM
MS. BLAISDELL pointed out that currently the pilot and crew
member are discussed as being on the ground because that is the
most typical place unmanned aircraft is being used at this
point. However, Representative Hughes's office recently
received an article denoting a crewmember and pilot in a Cessna
following and chasing an unmanned aircraft to determine if they
have "sense and avoid" technology. There is no human, she
emphasized, in the unmanned aircraft.
2:34:31 PM
REPRESENTATIVE HUGHES, in response to Representative LeDoux,
confirmed that there could be future unmanned aircraft with
passengers and no pilot. In fact, Mrs. Ro Bailey, Special
Projects Coordinator, University of Alaska Fairbanks, was in a
military aircraft in which the pilot let go of the controls and
a pilot controlled the aircraft on the ground.
2:35:40 PM
REPRESENTATIVE GRUENBERG indicated that unmanned aircraft are
not that unusual as a missile is an unmanned aircraft and roller
coasters are controlled from the ground. However, he suggested
that for a large bomb, a pilot and co-pilot would seem necessary
in case the pilot has a heart attack, for instance.
REPRESENTATIVE HUGHES related that the FAA will be addressing
such issues. Currently, there are six test sites, including one
in Alaska, that are working out issues so regulations can be
defined and refined. She said she was not familiar with FAA
regulations regarding manned aircraft, but suggested the size of
the unmanned aircraft may be part of its decision.
REPRESENTATIVE LYNN advised that when he flew a F94C in the
military, the aircraft had "data link" and could then be
controlled by another pilot on the ground. In fact, the space
shuttle, although manned can land itself.
2:39:14 PM
REPRESENTATIVE PRUITT addressed whether the bill limits the size
of the unmanned aircraft or is the legislature was waiting on
the federal government to determine the size.
2:40:24 PM
REPRESENTATIVE HUGHES explained that although there is nothing
in HB 255 to restrict the size, the FAA does have very stringent
restrictions that nothing can be dropped from an aircraft, in
order to avoid an unmanned aircraft being used as a weapon.
REPRESENTATIVE PRUITT queried as to whether conversations are
taking place regarding commercial viability as in transporting
items to rural areas or were there still limitations on that at
this point.
REPRESENTATIVE HUGHES advised that although the goal is to open
up national air space for unmanned aircraft for commercial use,
currently it was only for public entities. She recalled that
DPS is considering an [unmanned aircraft with a size of] around
50 pounds. She then informed the committee of the first two
incidents in which unmanned aircraft were used in the U.S. In
August 2013 unmanned aircraft were used twice in Alaska by the
oil industry; the unmanned aircraft had about a 9-10 foot wing
span and weighed less than 50 pounds.
2:42:35 PM
REPRESENTATIVE PRUITT, referring to the proposed language in AS
18.65.902, acknowledged the task force is considering a number
of hypotheticals and specific parameters, but inquired as to
what the expectations are regarding law enforcement utilization
for these types of aircraft.
2:44:04 PM
LIEUTENANT STEVE ADAMS, Statewide Search and Rescue Coordinator,
Alaska State Troopers, Department of Public Safety, responded
that the primary missions within DPS for which unmanned aircraft
would be used is for the mapping of serious injury or fatal
traffic collisions. The unmanned aircraft would save time,
particularly in locations such as the Seward Highway or Glenn
Highway where there are no other routes to reroute traffic. The
unmanned aircraft could be utilized in search and rescue
missions in dangerous places such as rough canyons or rivers
where officers would not place anyone on the ground and it would
be too dangerous for a manned aircraft. Unmanned aircraft would
be used in situations such as Amber alerts, Silver alerts,
hazardous material spills, natural disasters, and terrorism
incidents, situations in which it would be dangerous to use a
manned aircraft to look at a possible explosive, and also for
situational awareness for barricaded individuals who are armed.
2:45:24 PM
REPRESENTATIVE PRUITT posed a scenario in which DPS flies the
unmanned aircraft system over a home with a barricaded
individual in an attempt to understand the situation and obtain
feedback and during the fly over captures a crime taking place
two houses away. He asked whether DPS could utilize those
images and the information obtained to arrest individuals
committing a crime separate from the original intent for the
unmanned aircraft.
LIEUTENANT ADAMS characterized the situation as a complicated
legal question and that he believes is for the courts to decide.
Currently, DPS faces has the same types of situations without
unmanned aircraft and those are often addressed in evidentiary
hearings, he related.
2:47:02 PM
REPRESENTATIVE HUGHES pointed out that this legislation is
trying to be neutral on technology since it is a tool that is
not good or bad itself. As Lieutenant Adams mentioned, DPS uses
cameras on a pole, buildings, and vehicles to receive the same
type of images and the legislation tries not to single out the
unmanned aircraft in a manner that penalizes it.
2:48:21 PM
REPRESENTATIVE GRUENBERG related his understanding that the only
change embodied in CSHB 255 (STA) is the deletion of the
language on page 2, lines 24-26, of the original bill.
2:49:12 PM
REPRESENTATIVE HUGHES confirmed that was the only change and was
unnecessary as all of the important pieces of the International
Association of Chiefs of Police, Recommended Guidelines for the
Use of Unmanned Aircraft is included in the legislation. In
further response to Representative Gruenberg, Representative
Hughes advised the operation requirements specifies law
enforcement can use an unmanned aircraft outside of a criminal
investigation. Furthermore, the operations requirements ensure
that individual Alaskans' privacy protections are upheld, she
opined.
2:52:03 PM
DEAN DAWSON, Statewide Archivist, Statewide Archives and
Museums, Department of Education and Early Development (EED),
advised that state records law, AS 40.21, does require state
agencies to retain their records in accordance with a schedule.
Mr. Dawson contended that according to state law, the Department
of Public Safety would have to retain images under law and under
records retention schedules as the images do constitute state
records material. For example, murder cases filed under the
Department of Law's retention schedules are retained for 50
years and all other felonies are retained for 10 years. If
these images were used as evidence the images would need to be
retained for a certain length of time and, therefore, Mr. Dawson
expressed concerned that using the "negative" in proposed AS
18.65.903 might not be in compliance with state records laws.
2:53:43 PM
REPRESENTATIVE LEDOUX asked if the language on believed page 3,
lines 7-10, would cover Mr. Dawson's concerns.
MR. DAWSON responded that it would cover his concerns, but it
was "kind of flip flopped" in that if it is a public record it
"shall" be retained according to a specific retention timeframe.
He felt it somewhat connoted that these images are not records
when in fact they are records and even though the images may be
ephemeral or transitory they are still record material. He
acknowledged privacy concerns with personal information, but
believed the public had an interest in knowing the state is
retaining records as per its policies.
2:54:36 PM
REPRESENTATIVE GRUENBERG suggested that Mr. Dawson, the bill
sponsor, and legal counsel could review whether language changes
are necessary.
REPRESENTATIVE PRUITT related his preference for the bill's
language as he did not want the images retained unless there is
a specific reason. He further related his preference for as
little as possible is retained. He characterized it as privacy
and cost issue.
2:55:40 PM
REPRESENTATIVE LYNN pointed out that images are being captured
everywhere. For instance, the Boston Marathon bombing culprits
were arrested and incarcerated due to images captured by video
cameras on the street. He noted those images could well have
been captured by an unmanned vehicle, if available.
2:56:27 PM
REPRESENTATIVE GRUENBERG surmised from Mr. Dawson's remarks that
the language on page 3 of the bill may be superseded by law
already on the books that require images to be retained.
Therefore, to achieve Representative Pruitt's desire the
language would have to be changed. To that end, he suggested
that possibly a committee member could review the matter with
Mr. Svobodny to determine whether both the Department of Law and
the State Archivist's Office could be accommodated in this bill
or the public record's law.
REPRESENTATIVE LEDOUX suggested that the language on page 3,
line 7, addresses specific situations such as murder
investigations in which records need to be retained. With
regard to Representative Pruitt's concerns, other statutes that
may require records be retained may be. However, for purposes
of this bill, Representative LeDoux said she did not see a
problem.
REPRESENTATIVE GRUENBERG clarified he did not necessarily see a
problem with the language, but the archivist has expressed a
concern.
2:59:15 PM
REPRESENTATIVE PRUITT announced public testimony open would be
left open and HB 255 would be held over.
2:59:31 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned 2:59 PM.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 218 Sponsor Statement.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 ver. A.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 Proposed Amendment A.2.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 Legal Memo re Amendment A.2.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 Leg. Legal Memo.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 Supporting Document~AS 12.55.155.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 Fiscal Note Court System.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 Fiscal Note~DOC.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 Fiscal Note~Law.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 Fiscal Note~OPA.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| HB 218 Fiscal Note~Public Defender Agency.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 218 |
| CSHB 255 ver. C work draft.pdf |
HJUD 2/12/2014 1:00:00 PM |
HB 255 |