02/25/2002 01:10 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 25, 2002
1:10 p.m.
MEMBERS PRESENT
Representative Scott Ogan, Vice Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
Representative Norman Rokeberg, Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 405
"An Act relating to the prosecution of criminal offenses
committed on or against ferries and other watercraft owned or
operated by the state; and providing for an effective date."
- MOVED HB 405 OUT OF COMMITTEE
HOUSE BILL NO. 348
"An Act relating to violations of domestic violence protective
orders."
- MOVED HB 348 OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 405
SHORT TITLE:CRIMES COMMITTED ON STATE WATERCRAFT
SPONSOR(S): REPRESENTATIVE(S)MEYER
Jrn-Date Jrn-Page Action
02/11/02 2206 (H) READ THE FIRST TIME -
REFERRALS
02/11/02 2206 (H) JUD
02/11/02 2207 (H) TRA REFERRAL ADDED BEFORE JUD
02/13/02 2258 (H) COSPONSOR(S): DYSON
02/19/02 (H) TRA AT 1:15 PM CAPITOL 17
02/19/02 (H) Moved Out of Committee --
Time Change --
02/19/02 (H) MINUTE(TRA)
02/20/02 2336 (H) TRA RPT 4DP 2NR
02/20/02 2336 (H) DP: SCALZI, WILSON, KOOKESH,
KOHRING;
02/20/02 2336 (H) NR: MASEK, OGAN
02/20/02 2336 (H) FN1: ZERO(CRT)
02/20/02 2336 (H) FN2: ZERO(LAW)
02/25/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 348
SHORT TITLE:VIOLATION OF A DOMESTIC VIOLENCE ORDER
SPONSOR(S): REPRESENTATIVE(S)CROFT
Jrn-Date Jrn-Page Action
01/22/02 2029 (H) READ THE FIRST TIME -
REFERRALS
01/22/02 2029 (H) JUD
01/28/02 2087 (H) COSPONSOR(S): GUESS
01/30/02 2101 (H) COSPONSOR(S): DYSON
02/25/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Responded to questions regarding HB 405 and
HB 348.
REPRESENTATIVE ERIC CROFT
Alaska State Legislature
Capitol Building, Room 400
Juneau, Alaska 99801
POSITION STATEMENT: Asked questions in regard to HB 405.
Testified as the sponsor HB 348.
CAPTAIN GEORGE CAPACCI, General Manager
Alaska Marine Highway System
Department of Transportation & Public Facilities
3132 Channel Drive
Juneau, Alaska 998901-7898
POSITION STATEMENT: Responded to questions regarding HB 405.
JERRY LUCKHAUPT, Attorney
Legislative Counsel
Legal and Research Services Division
Legislative Affairs Agency
Terry Miller Building, Room 329
Juneau, Alaska 99801
POSITION STATEMENT: Spoke as the drafter of HB 405 and
responded to questions.
LAUREE HUGONIN, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
130 Seward Street, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: Provided information regarding protective
orders and testified in support of HB 348.
MARLA NELSON, Program Director
Abused Women's Aid in Crisis (AWAIC)
100 W 13th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Testified in support of HB 348.
ACTION NARRATIVE
TAPE 02-23, SIDE A
Number 0001
VICE CHAIR OGAN called the House Judiciary Standing Committee
meeting to order at 1:10 p.m. Representatives Ogan, James,
Coghill, Meyer, Berkowitz, and Kookesh were present at the call
to order.
HB 405 - CRIMES COMMITTED ON STATE WATERCRAFT
Number 0131
VICE CHAIR OGAN announced that the first order of business would
be HOUSE BILL NO. 405, "An Act relating to the prosecution of
criminal offenses committed on or against ferries and other
watercraft owned or operated by the state; and providing for an
effective date."
Number 0161
REPRESENTATIVE MEYER, speaking as the sponsor, said that HB 405
would give the state jurisdiction over state-owned watercraft,
even when that watercraft is outside state waters. He informed
the committee of the following:
Recently a superior court judge dismissed a
prosecution for a sexual assault that occurred on an
Alaskan ferry while in Canadian waters. The court
found that there was no statutory authority for the
State of Alaska to prosecute the crime even though the
defendant and the victim were both Alaskans. Under
the federal maritime law, the United States government
has jurisdiction over crimes committed on United
States vessels in Canadian waters.
REPRESENTATIVE MEYER said that the court's dismissal is of
concern because neither the federal government nor the Canadian
government is likely to prosecute the crime. Generally, the
federal government doesn't prosecute offenses such as sexual
assault. Furthermore, the Canadian government has little
interest in pursuing charges involving Alaskan victims on
Alaskan state-owned ferries. Therefore, Representative Meyer
said he felt it prudent to pass a state law that specifically
provides the state the power to prosecute cases such as this,
and to protect and defend passengers on state-owned vessels.
"House Bill 405 will eliminate the loophole that prevents the
state from prosecuting such crimes in the future," he said.
REPRESENTATIVE MEYER noted that this loophole was brought to his
attention by the Department of Law. This legislation would have
helped with a recent situation in which a 16-year-old girl was
sexually assaulted on a state-owned ferry while in Canadian
waters en route from Seattle to Ketchikan. The young woman
reported the crime to the police authorities in Ketchikan. The
Ketchikan district attorney presented the case to the grand jury
in Ketchikan, which returned an indictment for one count of
sexual assault in the first degree, one count of sexual assault
in the second degree, and four counts of misdemeanor assault.
However, the [Alaska] Superior Court dismissed the indictment
due to Alaska's lack of a statute that authorized the state to
prosecute under these circumstances.
Number 0310
REPRESENTATIVE MEYER recalled Representative Kookesh's comments
in the House Transportation Standing Committee hearing, which he
paraphrased as follows: "If the Canadians won't take action and
the feds don't want to take action, then we should at least have
the right to take action to protect Alaskans and others from any
criminal activity that occurs on our state-owned vessels."
Number 0348
REPRESENTATIVE BERKOWITZ remarked that [HB 405 is well
intentioned]. However, he predicted that there will be many
questions regarding the state's ability to assert [statutory]
jurisdiction in conflict with either federal statutes or
international treaties. Representative Berkowitz expressed his
desire to ensure that whatever [the legislature does] works.
Representative Berkowitz expressed concern with the tendency to
jump before the supreme court has the final word. That seems
problematic in regard to separation of powers.
VICE CHAIR OGAN noted that he shared those concerns as well. He
also noted that HB 405 was passed from the House Transportation
Standing Committee with the hopes that the jurisdictional
concerns would be addressed in this committee.
REPRESENTATIVE MEYER acknowledged that he knew that was a
concern for Vice Chair Ogan.
VICE CHAIR OGAN said he applauded what Representative Meyer is
trying to do [with HB 405]. He informed the committee that his
staff had discussed this with Tamara Cook, Legislative Legal and
Research Services, Legislative Affairs Agency, who believes this
will require some serious legal research. He related his
understanding that [HB 405] is saying that [the ferries] are a
sovereign piece of Alaska that moves through international
waters and waters of other states and thus there are probably
federal laws and maritime laws that might play into this.
Number 0532
REPRESENTATIVE KOOKESH remarked that although there is a
question of jurisdiction, the thrust of [HB 405] is to [allow
Alaska] that option of doing something if no one else does.
Otherwise, a crime would go unpunished and [the victim] would
have no recourse.
REPRESENTATIVE JAMES related her thought that if [HB 405] isn't
passed, then the minute one is outside of Alaska waters all hope
is gone.
VICE CHAIR OGAN clarified that he wanted something to be done in
these situations. However, he said he didn't want to merely
pass a bill that doesn't work; thus the jurisdictional questions
need to be resolved.
REPRESENTATIVE KOOKESH reiterated that it's not a question of
jurisdiction but rather of moving through the jurisdictional
search and discovering that no one wants to do anything.
Therefore, the State of Alaska needs to be there when no one
else [does anything].
REPRESENTATIVE MEYER agreed with Representative Kookesh.
VICE CHAIR OGAN inquired as to whether this crime was reported
to the Canadian government while the ferry was in Canada.
Number 0824
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
informed the committee that AS 12.20.010 prohibits the State of
Alaska from prosecuting any case where another case has already
been prosecuted, regardless of whether the case resulted in a
conviction or an acquittal. Furthermore, Ms. Carpeneti recalled
that the state has prosecuted cases on ferries before [the
recent case] arose. She knew that [the state] has prosecuted
cases outside the jurisdictional limit before and the issue
hasn't been raised. She noted that the state's jurisdiction has
been upheld in instances pertaining to private trawling boats
far outside the state's waters; therefore, the concept of the
state exercising jurisdiction under these circumstances isn't
unusual.
MS. CARPENETI turned to the recent case and informed the
committee that the defense attorney's brief cited [AS 12.20.010]
and the other statutory basis for jurisdiction. Although the
state statute authorizes jurisdiction to prosecute crimes
committed outside Alaska's territory when the harm occurs within
Alaska's territory, the statute didn't seem to be broad enough.
The Superior Court judge agreed. Furthermore, she suggested
that the Superior Court judge felt that since Alaska's
jurisdictional law is so tied to the statute, a statute was
necessary; thus the case was dismissed.
MS. CARPENETI agreed that other jurisdictions would have an
interest in a crime committed on an Alaskan ferry in Canadian
waters. One such jurisdiction is the federal government, which
hasn't stepped forward to prosecute. She assumed that the
Canadian law would allow Canada to prosecute this recent
offense, but they haven't done so either. Ms. Carpeneti
informed the committee that in this recent case, the ferry
didn't stop and return to a Canadian port. Instead, the ferry
continued to its next port, which is the procedure the ferries
follow. Ms. Carpeneti noted that there are no legal barriers to
[continue to the next port] as long as there is a statute giving
the state authority to take jurisdiction. Furthermore, of the
three jurisdictions, Alaska probably has the most connection and
interest in protecting this victim and others.
Number 1107
MS. CARPENETI remarked, "Now that the issue has been raised,
it's not going to go away." For example, in December an
intoxicated woman was hitting one of the crewmembers over the
head with a Vodka bottle. The crewmembers have a right to
protect themselves, as do the ferries themselves, and Alaska is
probably the most interested in protecting its ferries. Ms.
Carpeneti noted that as far as she and her [staff] knew, there
are no international treaties that would forbid the state's
exercise of this jurisdiction. She said that "the Geneva
Convention Treaty on the Flagship from 1954," 18 USC 7, gives
the United States authority over U.S.-flagged vessels. "The
United States has never preempted this field ... and excluded
... concurrent state jurisdiction," she pointed out. Moreover,
concurrent state jurisdiction has been allowed far into
international waters. Therefore, she didn't believe that there
is a concern that the proposed statute is going to violate
international treaties. Ms. Carpeneti said that she and [her
staff] have concluded that as long as the connections to the
state are close enough to satisfy due process, then the state
can do so [with] a statute.
Number 1235
REPRESENTATIVE BERKOWITZ related his understanding that ferries
[sail] four waters: state waters, federal waters, foreign
waters, and high seas. There are different jurisdictional
issues attached to each type of water. Representative Berkowitz
said that if a crime occurred on a ferry within Alaskan waters,
there is no question [of jurisdiction]. If there is a crime
that occurs on a cruise ship within Alaskan waters, where would
the jurisdiction lay, he inquired.
MS. CARPENETI answered that she believes Alaska or the flagship
could take jurisdiction.
REPRESENTATIVE BERKOWITZ posed a situation in which a crime
occurred on a ferry in international waters. Representative
Berkowitz expressed the need to distinguish between high seas,
foreign seas, and Canadian seas. If something occurs on a ferry
in the high seas, who has jurisdiction, he asked.
MS. CARPENETI answered that if it were an Alaskan ferry, then
she thought that Alaska could take jurisdiction. The court of
appeals has approved Alaska's prosecution pertaining to theft
crab pots from a privately owned vessel on the high seas.
REPRESENTATIVE BERKOWITZ related his understanding, then, that
this comes down to the site of the crime, which was Canadian
waters in this case.
MS. CARPENETI remarked that she believes that, in any event, it
would be best to have a statute such as proposed here because
this issue will be litigated on fishing boats.
REPRESENTATIVE BERKOWITZ asked if the state would be able to
assert jurisdiction for a crime against an Alaskan that occurred
while the Alaskan was standing on Canadian soil.
MS. CARPENETI answered that she didn't believe so, although she
wasn't sure. "We're not worried about those situations," she
said.
REPRESENTATIVE BERKOWITZ posed a situation in which a crime had
occurred aboard an [Alaskan] ferry that was tied up at Prince
Rupert, Canada.
MS. CARPENETI replied, "I think there would [be] three
jurisdictions, as there are now, that could have an interest and
would have due process rights ... and that would be Canada, ...
the United States ..., and if this statute passed, Alaska."
Number 1399
REPRESENTATIVE BERKOWITZ related his understanding, then, that
HB 405 would create a sort of cascading jurisdiction.
MS. CARPENETI said that she considered the jurisdiction to be
concurrent. However, she acknowledged that if Canada exercised
jurisdiction first, [then Alaska would be barred]. She also
acknowledged that the federal government doesn't have a statute
similar to AS 12.20.020; however, she didn't imagine that the
federal government would [exercise its jurisdiction if, under
Alaska statutes, Alaska exercises jurisdiction first].
REPRESENTATIVE BERKOWITZ asked if Alaska would have to allow
Canada the first chance at prosecution in a [similar] case.
MS. CARPENETI answered that she didn't believe so. She pointed
out that Canada hasn't exercised any jurisdiction at all [in the
aforementioned case]. She continued, "And when you think about
it, why should they; it's an Alaska boat, an Alaska victim, an
Alaska problem."
REPRESENTATIVE BERKOWITZ remarked that if he were Canadian, he
would charge that the crime occurred on Canadian waters and
Canada has the responsibility of ensuring safe passage of
travelers on their waters. He inquired as to who would [have
jurisdiction] if there was an assault aboard a fishing vessel
[crossing] Canadian waters.
MS. CARPENETI responded that it would depend upon the
circumstances.
Number 1470
REPRESENTATIVE BERKOWITZ commented, "So, what we're trying to
do, then, is extend the reach of our jurisdiction as far as we
can to protect Alaskan citizens."
MS. CARPENETI clarified, "We're trying to extend the
jurisdiction as far as it's fair to do so."
REPRESENTATIVE BERKOWITZ inquired as to why this is being
restricted to Title 12 when Title 22 discusses extensive
jurisdiction and says "that civil jurisdiction and criminal
jurisdiction of the district court of the State of Alaska extend
over the entire state."
MS. CARPENETI said that the intent was to be precise in order to
avoid concerns of overreaching.
REPRESENTATIVE BERKOWITZ mentioned that there is much criminal
activity that occurs when people are in the air; therefore, he
pondered whether that activity could be reached.
MS. CARPENETI related her belief that [the state] can [reach]
such activity. She highlighted the fact that the last sentence
in the proposed statute was added at the insistence of Jerry
Luckhaupt, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, in order to clarify that this
proposed statute wouldn't limit [the state's] jurisdiction in
any other way. Ms. Carpeneti noted that the intent was to
ensure safe ferries for tourists, trade, and Alaska's citizens.
REPRESENTATIVE BERKOWITZ posed a situation in which a crime
occurs on a flight between Anchorage and Juneau. He asked who
would have jurisdiction.
MS. CARPENETI answered, "I think Alaska does because it would
happen in Alaska territory." She noted that perhaps the federal
government would have jurisdiction because the carrier was an
interstate carrier.
Number 1565
REPRESENTATIVE BERKOWITZ asked, "Aren't the state's interests
served if we can make sure that our citizens are protected
whether they're aboard state-owned ferries, or private vessels,
or aircraft, whether state or privately owned." He asked
whether any future problems could be preempted by broadening
[the language].
MS. CARPENETI said that broadening [the language] could be
considered. She emphasized that the purpose of HB 405 is to
address a specific problem although it could also be applied to
other means of transportation if the committee chose.
REPRESENTATIVE BERKOWITZ commented, "Generally speaking, we
encounter problems with the law when we try and craft law ... to
respond to an anecdotal situation, as opposed to applying
general principles across the board." He pointed out that [HB
405] provides an opportunity to apply principles that would
protect Alaskans in the air and on the water, regardless of
whether they were on state or private vessels. He expressed the
need to take advantage of such an opportunity.
MS. CARPENETI said that she understood Representative
Berkowitz's point.
Number 1635
REPRESENTATIVE KOOKESH highlighted the fact that the State of
Alaska doesn't own an airline. He related his belief that if
there is a problem in the air, the federal government would be
there immediately, wanting jurisdiction. Representative Kookesh
said he also felt that there is a large void, and if not filled,
Alaskans won't have any access to a court. He noted he had
difficulty seeing [Representative Berkowitz'] rationale, and
suggested that perhaps any specific language or statute
recommendations pertaining to aircraft could be looked at via a
different [bill]. He remarked that there is currently a
specific void that HB 405 is addressing. After acknowledging
that [HB 405] isn't going to help the young woman who was
assaulted on the ferry, Representative Kookesh said it could
help someone in a similar situation in the future.
Number 1710
REPRESENTATIVE CROFT inquired as to whether there is a "criminal
long-arm statute" in which [the state] asserts jurisdiction
generally.
MS. CARPENETI said that AS 12.05.010 is considered Alaska's
criminal long-arm statute when acts committed outside the state
have a harmful effect inside the state. That [statute] has been
interpreted to apply [in child custody cases].
REPRESENTATIVE CROFT remarked, "That doesn't begin to cover the
sort of variety of situations." He pointed out that there is no
statement, such as in civil law, regarding [usurpation] of [the
state's] jurisdiction to the maximum extent of due process.
MS. CARPENETI agreed, but pointed out that there is a statute in
Title 44 that discusses jurisdiction, adding that [that title]
has been argued in similar cases. She also pointed out that
jurisdiction has been upheld for private vessels. There is no
[statute] that speaks to exercising jurisdiction as far as due
process or fairness.
REPRESENTATIVE CROFT asked whether that is unusual. Do other
states have criminal long-arm statutes, he asked.
MS. CARPENETI answered that some states do have criminal long-
arm statutes. Generally, state [statutes] discuss harm in the
state. She recalled a case in New York in which the court
upheld jurisdiction in Queens, New York, for an airplane crime
that was committed over the Atlantic Ocean. In that case, the
court found, under a statute similar but a bit broader than
Alaska's, that it was fair for New York to exercise jurisdiction
because if people felt unsafe landing in New York, then it would
impact the state economically.
Number 1872
VICE CHAIR OGAN echoed an earlier question regarding whether the
Canadian authorities were notified of this crime, which was
committed in their waters.
MS. CARPENETI replied that she wasn't sure but would investigate
that matter. She mentioned that Captain Capacci, General
Manager, Marine Highway System, Department of Transportation &
Public Facilities (DOT&PF) may be able to address this question.
She said that as far as she knew, the crime occurred and the
vessel proceeded to Ketchikan. In further response to Vice
Chair Ogan, Ms. Carpeneti noted that the federal authorities
were notified [of the crime]. And although the federal
government acknowledged jurisdiction, nothing has been done to
pursue that jurisdiction. Ms. Carpeneti said she didn't believe
the witnesses and victims were ever interviewed by federal
authorities. "The case was investigated by the state troopers
in Ketchikan," she stated.
VICE CHAIR OGAN inquired as to what would happen if a serious
crime was committed on a Canadian fishing vessel in Alaskan
waters.
MS. CARPENETI answered that she believes that it would depend
upon the circumstances. In the case of a Canadian victim in
which the Canadians exercised jurisdiction, Alaska state law [AS
12.20.010] prohibits having a second investigation and
prosecution. However, that doesn't mean that the state couldn't
[exercise jurisdiction] because if [the crime was committed] in
Alaskan waters, the state could prosecute.
Number 1963
REPRESENTATIVE COGHILL inquired as to whether the fact that
there are only U.S. and Alaskan ports of call would shore up the
case on the international waters issue.
MS. CARPENETI recalled that the ferry stops at Prince Rupert,
Canada, in one direction.
CAPTAIN GEORGE CAPACCI, General Manager, Alaska Marine Highway
System (AMHS), Department of Transportation & Public Facilities,
answered that last year [the ferry stopped at Prince Rupert,
Canada]; however, that won't be scheduled for this year.
REPRESENTATIVE COGHILL commented that the Washington State [and]
Canadian ferry systems probably have similar issues, and asked
whether [Washington State] has faced similar statutory problems.
MS. CARPENETI answered that she wasn't sure, but noted that the
federal law applies to Washington State, as it does to Alaska;
thus the [federal government] can exercise jurisdiction on an
American flagship vessel, regardless of what state it is from.
She said she assumes that Washington State has concurrent
jurisdiction, as other states would, if the vessel was in its
waters. Ms. Carpeneti relayed, "I would imagine ... that the
federal government is not necessarily that much more interested
in prosecuting sexual assaults on Washington ferries than they
are on Alaska State ferries."
REPRESENTATIVE COGHILL remarked that he found some comfort in
that. He expressed interest in information [on the Washington
State ferries] and whether there has been case law that has
proceeded to the higher courts.
MS. CARPENETI offered to look into that.
VICE CHAIR OGAN remarked that this can't be the first time that
this has happened. There must be other cases that can be
reviewed.
MS. CARPENETI agreed that there are other cases. For example,
in People v. Corsino, the New York court upheld New York's
exercise of jurisdiction regarding an incident that occurred on
an airplane while it was flying over the Atlantic Ocean and
subsequently landed in Queens, New York, due to the connection
to state interests. Furthermore, in an incident involving a
fishing vessel outside territorial waters, Alaska's jurisdiction
regarding prosecution under Alaska's theft statutes has been
upheld.
VICE CHAIR OGAN posed a hypothetical situation in which Ms.
Carpeneti was an attorney representing the defendant, and asked
if she would make jurisdictional arguments.
MS. CARPENETI replied, "No, not if we had a statute." In
further response to Vice Chair Ogan, Ms. Carpeneti related her
belief that if Alaska had a [jurisdictional] statute, then it
would be covered.
Number 2159
REPRESENTATIVE BERKOWITZ returned to the notion of expanding
this to include aircraft. He asserted that the Corsino case
seems to suggest that aircraft should be included in [HB 405]
because without a statute addressing a Corsino-type problem in
Alaska, the question of jurisdiction aboard an aircraft could
raise the defense that there is no statute.
MS. CARPENETI expressed agreement with Representative Kookesh's
earlier comment that Alaska doesn't have state-owned aircraft.
REPRESENTATIVE BERKOWITZ related his understanding that the
aircraft in the Corsino case was [commercially-owned].
MS. CARPENETI said Representative Berkowitz was correct.
However, [the aircraft issue] doesn't seem to be as pressing a
problem, she noted, since the federal government is more apt to
prosecute [crimes committed] on aircraft.
REPRESENTATIVE BERKOWITZ pointed out that Alaska has one of the
largest cargo airports in the country. He reiterated that [HB
405] provides an opportunity to address this problem before it
happens, and that it should be utilized.
MS. CARPENETI reiterated that in the Corsino case, the aircraft
wasn't owned by the State of New York. She said that she
wouldn't have any objection to including state-owned aircraft.
REPRESENTATIVE MEYER said that he wouldn't object to including
state-owned aircraft either.
REPRESENTATIVE BERKOWITZ stated that he wasn't talking about
that specifically. The Corsino case was about commercial
aircraft. If there is the potential for a commercial aircraft
problem, then [the state] should be able to fix it, he opined.
Number 2236
REPRESENTATIVE KOOKESH identified the question as being who has
jurisdiction. In the case of airlines, there is no question
that the Federal Aviation Administration (FAA) would be there
[asserting jurisdiction]. Someone will take jurisdiction with
airlines. In the case of the crime committed on the Alaskan
ferry, no one took jurisdiction; thus the desire [with HB 405]
is to fashion language that specifies that when no one else
exercises jurisdiction, the state wants to have that
opportunity. There is no FAA for the AMHS, he noted.
VICE CHAIR OGAN asked what the AMHS's policy is if a murder
occurred on a ferry [in international waters].
CAPTAIN CAPACCI answered that the captain of the vessel would
secure the situation and contact the leadership of AMHS who
would then contact the authorities.
VICE CHAIR OGAN asked what authorities would be contacted. He
pointed out that in the situation that happened, the ferry was
in Canadian waters. Furthermore, he said he felt that rape is a
serious felony, and asked what happened in the case of this
rape.
CAPTAIN CAPACCI explained that the [leadership of AMHS] was
contacted and the decision was made to proceed to the nearest
[U.S.] port, which was Ketchikan. He noted that the captain of
a vessel has absolute power. He said that although he didn't
believe the Canadian authorities were contacted, he wasn't sure,
so he would check on that matter.
VICE CHAIR OGAN asked if the suspect was placed in custody.
CAPTAIN CAPACCI said that he couldn't answer that question now
[because] he hasn't researched this case. In further response
to Vice Chair Ogan, Captain Capacci confirmed that [the captain]
has the authority to place people in custody.
Number 2450
REPRESENTATIVE COGHILL posed a hypothetical situation in which
there was a citizen from another country involved in felonious
behavior. He asked if the jurisdictional problem would surface
to a greater degree.
MS. CARPENETI related her belief that it would be the same
situation [that HB 405 attempts to address]. If this statute
were passed, the state would have jurisdiction and the [other
country] would also have jurisdiction.
REPRESENTATIVE MEYER surmised that the captain probably viewed
moving to the next U.S. port as the best option.
TAPE 02-23, SIDE B
Number 2505
REPRESENTATIVE MEYER agreed with Representative Kookesh's point
that had the incident on the ferry occurred on an aircraft, the
federal government would've been involved. If later it is found
that incidents on aircrafts are [not] being prosecuted by the
federal government, then that could be addressed at that time,
he suggested. He expressed his desire to limit HB 405 to
[ferries and other state-owned watercraft].
REPRESENTATIVE BERKOWITZ turned to State v. Stepanski, a Florida
case that references the reinstatement of foreign relations.
Representative Berkowitz said that [this Florida case] says,
generally:
A state has jurisdiction of prescribed law with
respect to conduct that wholly, or in substantial part
takes place within its territory with respect to the
status of persons or interests in things present
within its territory, or see conduct outside its
territory that has or is intended to have substantial
effect within a territory ... the activities'
interest, status, or relations of its nationals
outside as well as within its territory.
REPRESENTATIVE BERKOWITZ said, therefore, that he felt that in
asserting jurisdiction that relates to the activities,
interests, status, or relations of Alaskans, the state would be
within [its rights]. He reiterated that [HB 405] provides an
opportunity to do something of general applicability, which he
felt might protect the state's interests, in ways that can't be
fathomed now, while responding to the issues raised this
incident.
REPRESENTATIVE MEYER remarked that the government [often] is
criticized for overextending itself, and he wasn't sure that
there is a problem with aircraft yet. Furthermore, he opined
that if the Department of Law felt that there is a problem with
aircraft, then that issue would have been brought forward also.
Therefore, although he was open to expanding [HB 405] if the
Department of Law felt it necessary, he preferred to limit [HB
405] to [ferries and other state-owned watercraft]. The AMHS is
unique to Alaska and needs additional protection, which, he
said, he didn't believe was necessary for aircraft.
REPRESENTATIVE BERKOWITZ posed a hypothetical situation in which
there was a sexual assault on a privately owned Alaskan-flagged
vessel transiting Canadian waters. He asked whether Alaska
would be able to assert jurisdiction in such a case if HB 405
became law.
Number 2376
MS. CARPENETI clarified that although [HB 405] wouldn't exclude
jurisdiction, it wouldn't provide for it either; HB 405
specifies, "This jurisdiction is in addition to that provided by
AS 44.03 and any other jurisdictional basis expressed or implied
in law."
REPRESENTATIVE BERKOWITZ surmised, then, that if there was a
problem on a fishing vessel and [HB 405] only addresses [ferries
and other state-owned watercraft], then the problem would
continue for fishing vessels.
MS. CARPENETI remarked that in the [department's] opinion, [HB
405] is a specific clarification of jurisdiction. Ms. Carpeneti
noted her respect for Representative Berkowitz' approach, but
acknowledged that it's difficult, politically, to make a far-
reaching jurisdictional statement that both bodies would adopt.
REPRESENTATIVE BERKOWITZ pointed out that other states extend
their citizens these type protections and, thus, he questioned
why Alaskans are less protected than the citizens of other
states. He said he was willing to place that issue before the
Senate.
MS. CARPENETI mentioned that Alaskans aren't protected per the
ruling of the [Alaska] Superior Court judge [in the case].
REPRESENTATIVE BERKOWITZ turned to the issue of the federal
government exercising jurisdiction, and pointed out that there
may be instances when the federal laws aren't as friendly as
state laws with regard to prosecution and pursuit of a civil
action. Therefore, he felt that "we" should preserve the right
to Alaska jurisdiction whenever possible.
MS. CARPENETI remarked that international water doesn't pose
nearly the problem. Alaska has had its jurisdiction upheld in
international waters. Therefore, she isn't as concerned about
the Stepanski situation as much as with the Alaska situation
because the court has upheld Alaska's exercise of state
prosecution of the state's criminal laws - state theft statutes
- in international waters.
Number 2255
REPRESENTATIVE MEYER related his belief that HB 405 is merely
filling a loophole, adding that if Representative Berkowitz
wants to bring forth legislation that is broader in scope, he
would be willing to work with him.
VICE CHAIR OGAN pointed out that the personal bill deadline has
already passed and since Representative Berkowitz doesn't chair
a committee, he can't introduce a committee bill.
REPRESENTATIVE JAMES interjected that [jurisdiction on ferries]
is a critical issue today, whereas [jurisdiction on other
transportation modes] isn't.
Number 2181
JERRY LUCKHAUPT, Attorney, Legislative Counsel, Legal and
Research Services Division, Legislative Affairs Agency, informed
the committee that when this bill was being drafted he had
discussions with Ms. Carpeneti. He explained that he took an
approach similar to that put forth by Representative Berkowitz.
Usually, the desire is to be as broad as possible. He pointed
out that Alaska has a bit more protection due to the double
jeopardy provision that specifies that Alaska can't prosecute if
someone else has. Basically, Alaska is the only state with such
a provision. He indicated that the lack of such a statute in
other states has resulted in situations such as Terry Nichols
being prosecuted by the State of Oklahoma even though the
federal government had already convicted him.
MR. LUCKHAUPT informed the committee that the federal
government's jurisdiction has been recognized to include
maritime jurisdiction over any U.S.-flagged vessel anywhere in
the world, at any time, for any offense. He said that the first
U.S. Supreme Court case on this issue occurred in 1893; that
case involved a felony that occurred on a U.S.-flagged vessel in
Canadian waters and the U.S. had jurisdiction over the offense
because it was committed on a U.S.-flagged vessel. Since that
time, the [federal] maritime jurisdiction statute has been
amended to include aircraft and spacecraft. The U.S. government
has expanded the criminal statutes to include offenses committed
against any U.S. citizens anywhere in the world; furthermore, an
offense committed by a U.S. citizen anywhere in the world raises
a jurisdictional [issue].
MR. LUCKHAUPT noted that various states have taken [the federal
government's] lead, and opined that the State of Alaska would
have criminal jurisdiction [in the aforementioned case as well].
Although the trial court didn't agree, Title 44 includes a
provision that says the state has jurisdiction any time the
federal government says it has jurisdiction. "If they have
jurisdiction, we have jurisdiction, and that should be enough,"
he said.
Number 1982
MR. LUCKHAUPT clarified that [the section he was referring to is
AS 44.030.010(2)] which reads as follows:
(2) the high seas to the extent that jurisdiction is
claimed by the United States of America, or to the
extent recognized by the usages and customs of
international law or by agreement to which the United
States of America or the state is a party....
He interpreted that paragraph to mean that Alaska has
jurisdiction because the federal government has jurisdiction, by
both international law and federal statute. But "we didn't win
on that" issue, he acknowledged. Mr. Luckhaupt pointed out that
there have been a number of sexual assaults by crewmembers on
cruise ships in Florida and California, and that there were
problems regarding who would prosecute in those instances.
MR. LUCKHAUPT explained that currently, Florida has the longest
long-arm criminal statute in the United States and has a
provision that if half of the people either get on board or
disembark at a Florida port, then Florida has jurisdiction. He
added that that provision covers the Stepanski case, in which
the Florida Supreme Court affirmed Florida's jurisdictional
statute.
Number 1798
REPRESENTATIVE MEYER related his understanding that Title 44
refers to the high seas, and that the incident on the Alaskan
ferry didn't occur on the high seas. He asked whether [the
aforementioned] provision in Title 44 would apply.
MR. LUCKHAUPT noted that when the legislation was brought to
him, he was not told whether the incident occurred on the high
seas or in Canadian waters, though clearly the incident didn't
occur in port. Mr. Luckhaupt said that until a final
determination has been made, he is not ready to give up on the
issue of Alaska's jurisdiction. Furthermore, if a
jurisdictional basis is asserted, then it doesn't matter whether
the vessel is in port or not; for example, the federal
government has jurisdiction over any U.S.-flagged vessels,
regardless of whether it's in port or in anyone else's waters.
Mr. Luckhaupt said, "Usually you don't go wrong with going
broader in these situations."
REPRESENTATIVE MEYER highlighted the fact that the Department of
Law views it differently than Mr. Luckhaupt. Therefore, he
offered to meet with Ms. Carpeneti and Mr. Luckhaupt in order to
discuss this. In response to Vice Chair Ogan, Representative
Meyer noted his preference to move HB 405.
Number 1673
REPRESENTATIVE JAMES moved to report HB 405 out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE BERKOWITZ announced that before the bill reaches
the House floor, he would be requesting an amendment from the
drafter to offer on the House floor. He specified that the
amendment would be to extend jurisdiction as far as possible in
order to assert jurisdiction over Alaskan citizens [and] to
protect Alaskan victims wherever they might be.
REPRESENTATIVE MEYER suggested that perhaps "the three of us"
could meet to discuss what the amendment would do to the bill.
VICE CHAIR OGAN remarked that he believes the appropriate place
to offer a substantive amendment is in the committee.
REPRESENTATIVE BERKOWITZ said that he is just announcing what he
is going to do. "If we leave Alaskans unprotected, the shame is
on us," he charged.
Number 1619
VICE CHAIR OGAN asked if there is any objection to the motion.
There being no objection, HB 405 was reported from the House
Judiciary Standing Committee.
HB 348 - VIOLATION OF A DOMESTIC VIOLENCE ORDER
Number 1601
VICE CHAIR OGAN announced that the next order of business would
be HOUSE BILL NO. 348, "An Act relating to violations of
domestic violence protective orders."
Number 1589
REPRESENTATIVE ERIC CROFT, Alaska State Legislature, testifying
as the sponsor of HB 348, informed the committee that HB 348
reacts to the [Alaska Court Of Appeals] decision in the Strane
v. State case. This legislation addresses the standard for a
violation of a domestic violence restraining order. [In the
Strane case] the prosecution and the defense argue two extreme
positions. He referred the committee to page 2 of the Strane
case, which is included in the committee packet, and paraphrased
from the following:
Strane and the State approach this statute from
radically different perspectives. Strane argues that
the legislature used the word "knowingly" to convey
the notion that the crime is committed only if the
defendant understood the provision(s) of the
protective order and was aware that, by their conduct,
they were violating the protective order. The State
argues the polar opposite. The State contends that,
just as ignorance of the law does not excuse a
person's violation of a criminal statute, so too
ignorance or misunderstanding of the provisions of a
protective order does not excuse a person's violation
of that order. The State argues that a person who
violates the provisions of a protective order is
guilty of a crime under AS 11.56.740(a) even if they
acted with no culpable mental state -- i.e., acted
with absolutely no awareness that their conduct might
violate the provisions of the order.
The rule at common law -- that is, the rule that would
prevail in the absence of a statute -- lies in between
the positions staked out by Strane and the State.
Violation of a domestic violence protective order is
but one specific, codified instance of the more
general crime of contempt of court. In previous cases
dealing with contempt of court, this court has held
(1) that the applicable culpable mental state is
"recklessness" (i.e., the government must prove that
the defendant recklessly disregarded the possibility
that their conduct violated an order of the court),
and (2) that a person charged with contempt can defend
by asserting that they made a reasonable mistake
concerning the terms or the effect of the court order.
REPRESENTATIVE CROFT related his interpretation that in this
case, the court mentions that there is a middle ground that
allows a defense. However, [the defense] must be reasonable and
the jury would decide what is reasonable. In Strane, the court
ultimately sided with the defendant's extreme position due to
the inexact nature of the language of the statute. This
legislation, HB 348, establishes this middle ground position as
the [appropriate] standard. He noted that the committee packet
includes a jury instruction that he assumes will have to be
provided if the Strane case is upheld.
REPRESENTATIVE CROFT related his understanding that the Strane
case is now before the Alaska Supreme Court. The last sentence
of the jury instruction reads "His [The defendant's] belief that
his conduct did not violate the order need not be objectively
reasonable." That language is "the rub," he noted; "That is,
under the Strane decision, it doesn't matter how 'out to lunch'
you were with interpretation." "If you honestly believed it,
you will get off," he said, adding that the judge no longer has
the ability to disallow it as a defense.
Number 1367
REPRESENTATIVE CROFT related that the main objection he has
heard to HB 348 isn't the proposed standard, but rather that the
court should be allowed reach a final decision; in other words,
there is some resistance to establishing a standard in the
middle of a court preceding. Representative Croft announced his
belief that it's [the legislature's] job to establish the
appropriate standard. Regardless of the determination of the
Supreme Court in this individual case, the correct standard
should be established for future cases, he said.
VICE CHAIR OGAN posed a hypothetical situation in which a person
with a restraining order against him/her is in a grocery store
and comes around the aisle and finds the person that he/she is
not supposed to within 250 feet of. Would the person be in
violation of the restraining order, he asked.
REPRESENTATIVE CROFT related his understanding that due to that
potential problem, these orders list the locations where the
person is prohibited. Rarely do these orders specify the
proximity. Representative Croft explained that under one
extreme, such as in Vice Chair Ogan's example, if the person
knowingly "walked," then the person knowingly committed an act
that violated the order. Therefore, the person is guilty
without any culpable mental state, which concerns Representative
Croft. He indicated that the opposite case is of concern as
well. Representative Croft indicated that it seems appropriate
to get to some middle ground that asks how reasonable was the
action taken, so that if the act was reasonable, the person
wouldn't be prosecuted.
VICE CHAIR OGAN asked if HB 348 strikes a balance between a
strict liability and a culpable mental state.
REPRESENTATIVE CROFT replied yes.
Number 1146
REPRESENTATIVE BERKOWITZ said that notwithstanding his
philosophical objection to moving bills that the court is
hearing, HB 348 is an accurate standard of where the law should
be. Furthermore, it is a standard that is easy for the
prosecution and defense to understand and, thus, leads to
greater security for all parties.
VICE CHAIR OGAN asked if HB 348 would impact the current case.
REPRESENTATIVE CROFT related his belief that HB 348 can't be
retroactive, mentioning the possibility of constitutional
problems.
VICE CHAIR OGAN related his concern that restraining orders are
given out almost too freely. He expressed concern that there
isn't always probable cause other than a person's perception of
being in danger. He mentioned that the Division of Family &
Youth Services (DFYS) and restraining orders are [misused] to
build evidence in custody disputes.
REPRESENTATIVE CROFT agreed that [child custody cases] are
volatile and emotionally taxing. Representative Croft explained
that HB 348 is an attempt to fix an ambiguity in a narrow area
of the law. Although he acknowledged that there are many things
that could be addressed in this area, he expressed his hope that
the committee wouldn't try to solve all [the other problems] via
HB 348.
Number 0900
REPRESENTATIVE COGHILL said:
So, certainly somebody is ordered to do something, and
under this standard would have to do a reckless-
disregard violation. How about the other side? Is
the standard, then, going to [apply] if somebody ...
who has a protective order to protect themselves and
they, with reckless disregard, push somebody into that
[violation]? ... Is this standard going both ways?
REPRESENTATIVE CROFT answered that when the orders are
reciprocal, then [HB 348] would be the standard for both
parties.
REPRESENTATIVE COGHILL clarified that he isn't referring to
reciprocal orders. He informed the committee that it has been
brought to his attention that when someone is under a
restraining order, the person to be protected violated the space
with recklessly disregard in order to place the other person in
trouble. Such a situation seems grossly unfair. Therefore, he
reiterated his question as to whether [HB 348] "cuts both ways."
REPRESENTATIVE CROFT said that when one is under an order, [HB
348] would be the standard. However, he wasn't sure of the
standard when a person isn't under an order.
REPRESENTATIVE JAMES asked whether the person under the
restraining order is always served and will know what is
included in the order.
REPRESENTATIVE CROFT related his understanding that an order can
be obtained for a very short period of time without any notice
to the parties. However, it will dissolve fairly quickly [and
will remain] dissolved until the other party has a chance to
tell his/her side. Representative Croft said he thinks such
would be an ex parte order.
Number 0723
LAUREE HUGONIN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), in an effort to alleviate
some concern, provided the committee with a copy of a court
order for a regular protective order. Although she recognized
that anything can be misused, she said that wouldn't be the case
with the majority of circumstances. Ms. Hugonin reviewed the
various aspects of the order. She pointed out that there are 16
different provisions for which one can request protection, seven
of which would fall under the scope of class A misdemeanor
convictions. The seven provisions that fall under the scope of
class A misdemeanor convictions per the protective order are on
page 2, items a-e, and page 3, items i and j.
MS. HUGONIN pointed out that the language in the protective
order is fairly clear and there is space for the judge to
include comments to provide further clarification. For example,
in item c there is space for the judge to specify the distance
the respondent has to be away from the petitioner's residence.
Moreover, item d lists the prohibited locations, and there could
be exceptions. Therefore, the order is fairly detailed and
clear. Ms. Hugonin noted that the orders cannot be enforced
until the person has received the order, and that ex parte
orders [are in effect] for 20 days. The order has to be served
and the person has to know [the details of the order] before
that person can be convicted of violating the order. Ms.
Hugonin informed the committee that as of today, there are 692
regular protective orders, 281 ex parte orders, and only 2
emergency orders. She noted, however, that those numbers
fluctuate daily.
MS. HUGONIN suggested that in looking at the order, the
committee could see that it isn't that easy to obtain. She
further explained that a six-page petition has to be completed
and forwarded to the judge who has to find by a preponderance of
evidence that the crime has been committed, and that the judge
then has a great deal of discretion and authority in crafting
the order. Ms. Hugonin expressed her hope that the committee
would support HB 348.
Number 0369
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
announced that she would explain some of the court procedure
that led to this decision. She noted that she worked on the
original 1996 Domestic Violence Protection Act, and indicated
that during that time, the dynamics of domestic violence were
reviewed and it was decided that a person ordered to not have
contact with another should follow that order.
MS. CARPENETI said that in order to accomplish this, the
legislature adopted AS 18.66.130(a) that in part specifies: "an
invitation by the petitioner to communicate, enter the residence
or vehicle, or have other prohibited contact with the petitioner
does not waive or nullify any provision in a protective order."
Furthermore, the statute required that each protective order
specify [the above] in bold face. The [Act] also enacted [AS]
11.57.740, which changed the law to say that it's a misdemeanor
to knowingly commit an act that violates a protective order.
She added that, apparently, that wasn't clear enough, at least,
as Ms. Hugonin said, as it pertained to AS 18.66.100(c)(1)-(7).
Number 0238
MS. CARPENETI turned to the Strane case. She explained that in
this case, Patrick Strane was served with a protective order by
a law enforcement officer who read the order to him. The order
forbade Mr. Strane from contacting the victim. She interrupted
her explanation of the Strane case to mention that in the
aforementioned hypothetical situation of encountering [the
petitioner/victim] in the grocery store, the respondent would
have to take steps to leave. In the Strane case, she continued,
the petitioner telephoned the respondent - Mr. Strane - for a
ride, and the respondent obliged. She recounted that Mr. Strane
said he didn't realize his actions in picking up the victim
violated the protective order. Mr. Strane was convicted on
stipulated facts in Superior Court. However, the court of
appeal reversed the conviction based on its interpretation that
the state is required to prove, beyond a reasonable doubt, that
the defendant knew his/her action was violating the protective
order.
MS. CARPENETI said, "As a result of this decision, we are really
unable to prosecute the majority of violation/cases under this
statute because we have been unable to prove that knowledge,
that the act violated the protective order." She agreed with
Representative Croft that HB 348 is a good compromise. She
pointed out that AS 11.81.610 provides that if criminal statutes
don't state a culpable mental state for circumstances, then the
court should read in a reckless standard. She stated that HB
348 specifically provides for a reckless culpable mental state
for the circumstances, that the conduct was prohibited by the
protective order. She indicated that [under HB 348], the state
[might have] been able to successfully prosecute the Strane
case.
TAPE 02-24, SIDE A
Number 0039
REPRESENTATIVE JAMES remarked that the circumstances in the
Strane case bother her. Moreover, she indicated the unfairness
in that the petitioner should've known that she was requesting
the respondent to violate the order.
MS. CARPENETI commented, "That's the dynamics of domestic
violence." She explained that the court orders the respondent
to not contact the petitioner and thus the respondent has to
abide by the order. In the Strane case, the petitioner wasn't
under any order of the court.
REPRESENTATIVE JAMES reiterated that it doesn't meet her
fairness test. She posited that such situations happen a lot.
Number 0236
MARLA NELSON, Program Director, Abused Women's Aid in Crisis
(AWAIC), testified via teleconference in support of HB 348,
which [AWAIC] believes would strengthen the justice system's
ability to enforce protective orders and prosecute violations.
More importantly, [HB 348] would ensure the safety of the women
and children who are victims of - or who are at risk of being
victims of - domestic violence. Ms. Nelson said, "Successful
prosecution of protective orders would further hold perpetrators
accountable and send a message that protective orders must be
taken seriously." She informed the committee that [AWAIC] works
with victims that don't believe a protective order will further
ensure their safety, and this belief keeps people from applying
for the order. There is the fear that applying for an order
would actually escalate the perpetrator's abusive behavior. Ms.
Nelson commented on the difficulty in understanding the psyche
of a victim of a domestic abuse.
Number 0452
REPRESENTATIVE MEYER moved to report HB 348 out of committee
with individual recommendations and the accompanying zero fiscal
notes. There being no objection, HB 348 was reported from the
House Judiciary Standing Committee.
ADJOURNMENT
Number 0465
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:45 p.m.
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