04/07/2004 01:55 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 7, 2004
1:55 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 244
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
- MOVED CSHB 244(2d JUD) OUT OF COMMITTEE
HOUSE BILL NO. 336
"An Act limiting recovery of civil damages by an uninsured
driver; and providing for an effective date."
- FAILED TO MOVE CSHB 336(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 490
"An Act relating to the release of employment security records,
to the admissibility of determinations and decisions regarding
unemployment compensation benefits, and to contributions,
interest, penalties, and payments under the Alaska Employment
Security Act; providing that property under the Alaska
Employment Security Act is not subject to the Uniform Unclaimed
Property Act; and providing for an effective date."
- MOVED CSHB 490(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 275
"An Act relating to veterinarians and animals."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 31
Proposing amendments to the Constitution of the State of Alaska
relating to the Alaska permanent fund and to payments to certain
state residents from the Alaska permanent fund; and providing
for an effective date for the amendments.
- SCHEDULED BUT NOT HEARD
HOUSE JOINT RESOLUTION NO. 45
Requesting the United States Congress to propose an amendment to
the Constitution of the United States to provide that a vacancy
in the office of United States Representative may be filled by
appointment until an election can be held.
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 244
SHORT TITLE: CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
04/04/03 (H) READ THE FIRST TIME - REFERRALS
04/04/03 (H) JUD, FIN
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (H) Heard & Held
04/14/03 (H) MINUTE(JUD)
04/25/03 (H) JUD AT 1:00 PM CAPITOL 120
04/25/03 (H) -- Meeting Postponed to Mon. April 29 -
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
05/08/03 (H) Heard & Held
05/08/03 (H) MINUTE(JUD)
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (H) Moved CSHB 244(JUD) Out of Committee
05/09/03 (H) MINUTE(JUD)
05/12/03 (H) JUD RPT CS(JUD) NT 1DP 1DNP 4NR
05/12/03 (H) DP: SAMUELS; DNP: GARA; NR: HOLM,
05/12/03 (H) OGG, GRUENBERG, MCGUIRE
05/13/03 (H) FIN AT 1:30 PM HOUSE FINANCE 519
05/13/03 (H) -- Meeting Canceled --
05/14/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/14/03 (H) Heard & Held
05/14/03 (H) MINUTE(FIN)
05/15/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/15/03 (H) Moved CSHB 244(JUD) Out of Committee
05/15/03 (H) MINUTE(FIN)
05/15/03 (H) FIN RPT CS(JUD) NT 2DNP 4NR 4AM
05/15/03 (H) DNP: KERTTULA, FOSTER; NR: MOSES,
05/15/03 (H) CHENAULT, HARRIS, WILLIAMS; AM: HAWKER,
05/15/03 (H) STOLTZE, BERKOWITZ, WHITAKER
05/15/03 (H) RETURNED TO JUD COMMITTEE
05/15/03 (H) IN JUDICIARY
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
03/19/04 (H) Heard & Held
03/19/04 (H) MINUTE(JUD)
03/24/04 (H) JUD AT 1:00 PM CAPITOL 120
03/24/04 (H) Heard & Held
03/24/04 (H) MINUTE(JUD)
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
03/30/04 (H) Heard & Held
03/30/04 (H) MINUTE(JUD)
03/30/04 (H) JUD AT 3:00 PM CAPITOL 120
03/30/04 (H) -- Meeting Canceled --
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
03/31/04 (H) Heard & Held
03/31/04 (H) MINUTE(JUD)
04/02/04 (H) JUD AT 1:00 PM CAPITOL 120
04/02/04 (H) Heard & Held
04/02/04 (H) MINUTE(JUD)
04/07/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 336
SHORT TITLE: CIVIL DAMAGES FOR UNINSURED DRIVERS
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
03/31/04 (H) <Bill Hearing Postponed>
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
04/06/04 (H) Heard & Held
04/06/04 (H) MINUTE(JUD)
04/07/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 490
SHORT TITLE: EMPLOYMENT SECURITY ACT AMENDMENTS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) L&C, JUD
03/22/04 (H) L&C AT 3:15 PM CAPITOL 17
03/22/04 (H) Scheduled But Not Heard
03/24/04 (H) L&C AT 3:15 PM CAPITOL 17
03/24/04 (H) Moved Out of Committee
03/24/04 (H) MINUTE(L&C)
03/25/04 (H) L&C RPT 4DP 3NR
03/25/04 (H) DP: LYNN, GATTO, DAHLSTROM, ANDERSON;
03/25/04 (H) NR: CRAWFORD, ROKEBERG, GUTTENBERG
04/07/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 275
SHORT TITLE: VETERINARIANS AND ANIMALS
SPONSOR(S): REPRESENTATIVE(S) CHENAULT
04/17/03 (H) READ THE FIRST TIME - REFERRALS
04/17/03 (H) L&C, RES
02/20/04 (H) L&C AT 3:15 PM CAPITOL 17
02/20/04 (H) <Bill Hearing Postponed>
03/29/04 (H) L&C AT 3:15 PM CAPITOL 17
03/29/04 (H) Moved CSHB 275(L&C) Out of Committee
03/29/04 (H) MINUTE(L&C)
03/31/04 (H) RES REFERRAL WAIVED
04/01/04 (H) L&C RPT CS(L&C) NT 3DP 2NR 1AM
04/01/04 (H) DP: CRAWFORD, LYNN, ANDERSON;
04/01/04 (H) NR: ROKEBERG, DAHLSTROM; AM: GUTTENBERG
04/01/04 (H) JUD REFERRAL ADDED AFTER L&C
04/01/04 (H) FIN REFERRAL ADDED AFTER JUD
04/05/04 (H) JUD AT 1:00 PM CAPITOL 120
04/05/04 (H) -- Meeting Postponed to Tues. 4/6/04 --
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
04/06/04 (H) Heard & Held
04/06/04 (H) MINUTE(JUD)
04/07/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of proposed amendments to
HB 244, responded to questions and provided comments.
SUSAN A. PARKES, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of proposed amendments to
HB 244, responded to questions and provided comments.
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 336.
THOMAS NELSON, Director
Division of Employment Security
Department of Labor & Workforce Development (DLWD)
Juneau, Alaska
POSITION STATEMENT: Presented HB 490 on behalf of the
administration and responded to questions.
TOBY NANCY STEINBERGER, Assistant Attorney General
Labor and State Affairs Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 490
and responded to questions.
TRACIE AUDETTE, Owner
Fairhaven
Palmer, Alaska
POSITION STATEMENT: During discussion of HB 275, relayed
concerns and suggested a change to the bill and a review of
current statute regarding the definition of "animal husbandry".
CAROL GIANNINI, Staff
to Representative Harry Crawford
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 275 and proposed
amendments, provided comments and responded to questions on
behalf of Representative Crawford, sponsor of HB 323.
SALLY CLAMPITT, President
Alaska Equine Rescue (AER)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
275 and said she supported the bill.
SHARALYN WRIGHT, Staff
to Representative Mike Chenault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 275 and proposed
amendments, provided comments on behalf of the sponsor,
Representative Chenault.
LISA ZEIMER
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
275.
ELISE HSIEH, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
proposed changes to HB 275.
KRISTIN RYAN, Director
Division of Environmental Health
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
proposed changes to HB 275.
REPRESENTATIVE HARRY CRAWFORD
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of proposed changes to HB
275, provided comments as the sponsor of HB 323.
ACTION NARRATIVE
TAPE 04-62, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:55 p.m. Representatives
McGuire, Anderson, Holm, Samuels, Gara, and Gruenberg were
present at the call to order. Representative Ogg arrived as the
meeting was in progress.
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
Number 0100
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 244, "An Act relating to the Code of Criminal
Procedure; relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to rights of
prisoners after arrest; relating to discovery, immunity from
prosecution, notice of defenses, admissibility of certain
evidence, and right to representation in criminal proceedings;
relating to sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure, and Rules
404, 412, 609, and 803, Alaska Rules of Evidence; and providing
for an effective date."
[Before the committee, adopted as a work draft on 3/19/04, was a
proposed committee substitute (CS) labeled 04-0033, 1/16/2004,
as amended on 4/02/04.]
CHAIR McGUIRE, in response to Representative Gara, noted that
[the committee packet] should now contain a proposed committee
substitute (CS), labeled 23-GH1024\I, Luckhaupt, 4/6/04.
Number 0147
REPRESENTATIVE SAMUELS moved that the committee rescind its
action of 4/2/04 in adopting Amendment 3, which read [original
punctuation provided]:
Page 9, lines 2 and 3: Delete all material.
Page 9, line 4: Delete "(4)" and replace it with
"(2)"
Page 9, line 30 to Page 10, line 1: Delete "and
inform the prosecution of the category of offense to
which the privilege applies: a higher level felony, a
lower level felony, or a misdemeanor"
CHAIR McGUIRE noted that Amendment 3 was made to the proposed CS
labeled 04-0033, 1/16/2004.
REPRESENTATIVE HOLM mentioned that Version I incorporated
[Amendment 3].
CHAIR McGUIRE explained that [Amendment 3] addresses the section
pertaining to when someone wants to claim a Fifth Amendment
privilege and be granted immunity by a judge. The individual
meets with the judge in his or her chambers and, under current
law, if the prosecution agrees, the individual is granted
transactional immunity. Amendment 3 deleted the language
allowing the judge to inform the prosecution of the category of
offense for which the privilege applied.
REPRESENTATIVE GRUENBERG objected.
REPRESENTATIVE SAMUELS recalled that the discussion on this was
in regard to conforming to the Senate version.
CHAIR McGUIRE clarified that the Senate version does incorporate
[Amendment 3].
REPRESENTATIVE SAMUELS explained that he had thought [Amendment
3] was to a different portion of the Senate bill, otherwise he
said he would've objected to the adoption [of Amendment 3].
Representative Samuels offered his understanding that immunity
is rarely [granted]. He mentioned possibly having a "Chinese
[firewall]" or some sort of compromise because he was concerned
with "throwing it all out."
Number 0427
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), offered her
understanding that the committee is discussing filtering
information to the district attorney, information that is
provided to the judge from the witness during a hearing held in
camera.
REPRESENTATIVE GRUENBERG said he had discussed filtering
information to the district attorney with someone from the
defense bar. He recalled that even the "Chinese firewall"
theory would be unconstitutional. If there is some language
with the "Chinese firewall" theory and the language on page 10,
line 6, of Version I is changed from "shall" to "may", would
that help solve the problem, he asked.
MS. WILSON stated that [the "Chinese firewall"] wouldn't provide
protection because any sharing of information will be
unconstitutional. She pointed out that in the [State v.
Gonzales, 853 P.2d 526 (Alaska 1993)] case, the court said that
the state can't protect against the nonevidentiary uses of the
information. She reminded the committee that Senator French, a
former district attorney, said this [sharing of information] is
unconstitutional.
Number 0596
REPRESENTATIVE ANDERSON moved to adopt CSHB 244, Version 23-
GH1024\I, Luckhaupt, 4/6/06, as the working document. There
being no objection, Version I was before the committee.
Number 0632
SUSAN A. PARKES, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), indicated that she
disagreed with Ms. Wilson, and opined that it's a matter of
interpretation. Ultimately, this is a matter on which the
supreme court will have to rule. In reviewing the Gonzalez
case, the DOL believes that the current proposal isn't
unconstitutional. Furthermore, the DOL believes it's really
detrimental for prosecutors to have to decide on granting
immunity blindly. Therefore, the DOL is willing to compromise
and establish a system in which the prosecutor isn't the person
making the decision [with regard to granting immunity]. There
could be people dedicated to sitting in on these hearings or be
given the information by the judge, and that person would then
make the decision regarding whether or not to grant immunity.
MS. PARKES noted that the person making immunity decisions would
be bound by confidentiality not to share that information with
law enforcement or other prosecutors. She said she fails to see
how that wouldn't protect the potential witness from
nonevidentiary uses of the testimony if the person making the
decision doesn't release that information or use it and isn't
involved in the case in any manner.
REPRESENTATIVE GRUENBERG asked whether, if an amendment to the
effect was adopted, Ms. Parkes would be willing to change the
"shall" to "may" [on page 10, line 6, of Version I].
MS. PARKES specified that she would oppose such a change. She
explained that often immunity can be granted with information
because witnesses and defense attorneys are cooperating.
However, there are occasions in which the aforementioned parties
aren't cooperative. As a public policy, the information should
always be given to the prosecutor in order for him/her to make
the decision about whether to grant immunity.
Number 0805
REPRESENTATIVE GRUENBERG noted his opposition to Representative
Samuels's motion. However, if the motion carries and the
original language remains, the language will go to the supreme
court. If the supreme court strikes it down, then it will be
back to square one. Therefore, in order to resolve this
problem, he said he supports an amendment such as suggested by
Ms. Parkes as well as changing ["shall"] to "may" and providing
for a contingent effective date. Representative Gruenberg
announced that he would be prepared to make such an amendment if
Representative Samuels's motion passes.
MS. PARKES said she would like to take her chances with
Representative Samuels's motion because she believes the supreme
court would support the language that Amendment 3 changed.
REPRESENTATIVE GRUENBERG clarified that he would be willing to
make an amendment with the "may" language and a contingent
effective date even if the motion fails.. In this way, [the
matter] wouldn't have to come back before the legislature.
CHAIR McGUIRE mentioned the severability clause.
MS. PARKES said she couldn't support Representative Gruenberg's
suggestion because if the supreme court found this to be
unconstitutional, the court's language regarding why it was
struck down would need to be reviewed as would whether the
supreme court would view Representative Gruenberg's proposal as
constitutional.
REPRESENTATIVE GRUENBERG shared his doubt that the [supreme
court] would "take" a hypothetical.
MS. PARKES agreed, but stated that in the supreme court's
decision and reasoning there would be some indication as to why
it felt something wasn't constitutional.
REPRESENTATIVE SAMUELS maintained his motion that the committee
rescind its action of 4/2/04 in adopting Amendment 3.
REPRESENTATIVE GRUENBERG maintained his objection.
Number 0917
REPRESENTATIVE GARA pointed out that when one asks for a Fifth
Amendment privilege, one isn't admitting that he/she committed a
crime. Instead that individual is saying that he/she may have
done something the government may view as a crime. Even in the
aforementioned situation, he offered his understanding that the
individual isn't required to talk to the government. He posed a
situation in which an innocent person is found near
circumstantial evidence of a murder: that individual doesn't
have to talk to the government because of the fear that the
government will try to implicate him/her in a crime he/she
didn't commit.
REPRESENTATIVE GARA said that the Fifth Amendment applies to
both situations in which the individual committed the crime and
in which the individual didn't commit the crime; it applies in
situations in which the individual fears he or she will provide
the government with a basis to be charged with a crime. Forcing
an individual to do the aforementioned essentially makes him/her
give up his/her right to the Fifth Amendment, he opined, because
the Fifth Amendment provides protection for both innocent and
guilty individuals and places the burden on government to prove
a guilt. He acknowledged that the Fifth Amendment has both good
and bad aspects. He maintained his support for Amendment 3.
CHAIR McGUIRE expressed concern with regard to those who have
abused the process and thus "we find ourselves in this position
because of that." She offered her belief that testimony has
indicated that it's not [the sponsor's] intent, once the level
of crime is revealed, to prosecute individuals. To the extent
such ever occurred, the legislature would change the law.
REPRESENTATIVE GRUENBERG pointed out, however, that Ms. Parkes
can't speak for the DOL in every case or for every
administration. The fact is, he opined, these [witnesses] are
going to have a hearing in camera during which there will be an
offer of proof by the defense to the judge with the defendant
and [his/her] attorney present. The defendant is going to say
that he/she couldn't testify about this murder because it might
reveal that he/she committed another murder. The judge would
then tell the prosecution that the individual can't be made to
testify because of an unclassified felony. At that point, the
prosecution will be under immense political pressure to
investigate and prosecute for that crime. Therefore, it will
incriminate the witness, which is unconstitutional, he
emphasized.
MS. PARKES clarified that as it's proposed, [the DOL] is simply
asking for information regarding whether the witness is
concerned about a higher felony, a lower felony, or a
misdemeanor. Although Ms. Parkes said she understood [members']
concern and couldn't speak for future cases, Representative
Gruenberg's hypothetical situation is not the way it works. If
the DOL is prosecuting a homicide and [a witness] says he or she
may implicate themselves in a higher-level felony, the
[prosecutor] has no idea what that is. She identified the
aforementioned as the break in the chain of evidence.
REPRESENTATIVE GRUENBERG suggested, "It may not, but it may."
People may know exactly what the witness's potential involvement
is, and this is what concerns him.
Number 1251
A roll call vote was taken. Representatives Samuels, Holm,
Anderson, and McGuire voted in favor of the motion to rescind
the committee's action of 4/2/04 in adopting Amendment 3.
Representatives Gara and Gruenberg voted against it. Therefore,
the motion to rescind the committee's action in adopting
Amendment 3 passed by a vote of 4-2.
Number 1251
REPRESENTATIVE SAMUELS moved that the committee adopt Conceptual
Amendment 17 "for the drafters to draft the language (indisc.)
'Chinese firewall' so that the same prosecutor prosecuting the
case is not the one ... in the chambers with the judge."
REPRESENTATIVE GARA objected for discussion purposes. He
surmised that the desire is for the prosecutor who is told this
information to not share it with other prosecutors.
REPRESENTATIVE SAMUELS replied yes.
REPRESENTATIVE GARA suggested, then, that [Conceptual Amendment
17] needs to be reworded.
MS. PARKES offered her understanding that the desire is to have
a designated person from the DOL assigned to make a
determination about immunity and that designated person would be
bound by confidentiality not to share the information with
anyone.
CHAIR McGUIRE offered her understanding that Representative
Samuels's intention is for Conceptual Amendment 17 to mean what
Ms. Parkes stated.
REPRESENTATIVE GRUENBERG remarked that [adopting Conceptual
Amendment 17] would be better than leaving the bill as is.
However, he expressed concern that the supreme court will strike
this provision down. Therefore, he said he wanted to offer an
amendment to Conceptual Amendment 17 that would "have, ...
instead of a 'shall', a 'may' in it, and it would have a
contingent effective date if the supreme court strikes down the
conceptual amendment." Therefore, if the supreme court says the
judge can't be compelled to do this, then the amendment to
Conceptual Amendment 17 would come into play and thus allow the
judge to do so only when he/she feels it is appropriate.
Number 1425
MS. PARKES said her concern is that if "shall" is
unconstitutional, then "may" would be as well.
REPRESENTATIVE GARA opined that Representative Gruenberg's
amendment to Conceptual Amendment 17 probably makes sense
because the judge can ensure that it's done only in
constitutional cases. If, by a witness saying that he or she
might have been involved in something that might be considered a
higher level felony, the [prosecution] would be made aware of
[the information], and so the judge wouldn't allow [the
information] to be released because it's self-incriminating,
which is unconstitutional. However, if the information wouldn't
alert the prosecutor to what crime the witness might have been
involved in, then it would probably be allowed. For example, he
posed a situation in which there are five minors consuming at a
mall and a fight begins with one of those minors and someone
else. The fight results in the death of the other individual,
and the prosecution brings a murder case.
REPRESENTATIVE GARA posed that three [of the minors] were
involved in the fight that resulted in the death, while two
[minors] were merely consuming. The prosecution gets the
evidence regarding involvement in what might be viewed as a
higher-level felony, and therefore it becomes apparent that the
individual was involved in the fight. While [it becomes
apparent that] the individual involved in a low level
misdemeanor is the minor consuming. Therefore, in such a
situation the judge may say that [informing the prosecution of
the offense level] would be [tantamount to] telling [the
prosecution] who did what. Under the "may" language, the judge
wouldn't inform [the prosecution] because it would be
unconstitutional. However, in other situations such as those
mentioned by Ms. Parkes, Representative Gara opined that it
probably would be constitutional [to share the information].
The aforementioned has the benefit of doing what Representative
Gruenberg is suggesting, he remarked.
REPRESENTATIVE SAMUELS surmised that the DOL is willing to let
[this provision] be struck down by the supreme court rather than
start from scratch.
CHAIR McGUIRE asked if the [amendment to Amendment 17] would be
like a severability clause.
REPRESENTATIVE GRUENBERG clarified that he is attempting to
provide an option to [allow immunity] in the appropriate cases.
Number 1568
MS. PARKES remarked that if the conceptual amendment passes, the
scenario discussed by Representative Gara wouldn't happen
because the designated individual who is told the level of the
potential crime isn't going to share that information, and so
this issue shouldn't be of concern. With regard to allowing the
judge to decide when it's appropriate, the judge often has very
little information and often doesn't have the information that
prosecutors would have. Therefore, placing the judge in the
position of having to decide whether a prosecutor could use this
information is unfair. There could be investigations for which
the judge has no knowledge and, under the proposed scenario,
[the prosecution] could be "tipped off." A judge shouldn't be
making those type of evidentiary decisions, she opined.
Conceptual Amendment 17 seems to take care of the concerns about
any information being used inappropriately.
REPRESENTATIVE GRUENBERG said it wasn't his intent to place the
judge in an awkward position. He explained that he is simply
trying to provide the prosecution with the opportunity to
request "the firewall," which would not otherwise be available.
MS. PARKES said she would accept that concept. Upon further
clarification, Ms. Parkes restated her concern with regard to
the change of "shall" to "may".
REPRESENTATIVE GARA relayed his understanding that the amendment
to Conceptual Amendment 17 would only [be in effect] if
Conceptual Amendment 17 is declared unconstitutional.
REPRESENTATIVE GRUENBERG concurred with Representative Gara's
understanding.
Number 1698
REPRESENTATIVE GARA then objected. He commented that it's
important to obtain information from witnesses, the department,
and government when it's involved. However, he said he didn't
like the tenor of trying to find out whether the government is
going to agree that it's [appropriate] to do something. At some
point, [legislators] have to make an independent judgment.
CHAIR McGUIRE pointed out that the House Judiciary Standing
Committee reviews opinions that are very diverse in nature.
Often, courts in different circuits rule differently on the same
question. Therefore, these opinions provide [members] the
ability to reflect and analyze how a particular law may be
interpreted. She opined that Representative Gruenberg is saying
that the Gonzalez case is unclear.
REPRESENTATIVE GARA said he tended to agree.
REPRESENTATIVE SAMUELS said that he didn't view Representative
Gruenberg's amendment to Conceptual Amendment 17 as friendly.
MS. PARKES, in response to Representative Gruenberg, announced
that the DOL would support Conceptual Amendment 17 without
Representative Gruenberg's amendment to it.
REPRESENTATIVE GRUENBERG withdrew his amendment to Conceptual
Amendment 17.
Number 1831
CHAIR McGUIRE asked whether there were any objections to the
adoption of Conceptual Amendment 17. There being no objection,
Conceptual Amendment 17 was adopted.
Number 1844
REPRESENTATIVE SAMUELS moved that the committee adopt Amendment
2, which read [original punctuation provided]:
Page 8, after line 18:
Insert the following:
"*Sec. 15. AS 12.25.150(b) is repealed and
reenacted to read:
(b) Immediately after an arrest, a prisoner
has the right to (1) telephone or otherwise
communicate with the prisoner's attorney; (2)
telephone or otherwise communicate with any relative
or friend; (3) an immediate visit from an attorney at
law entitled to practice in the courts of Alaska
requested by the prisoner; and (4) a visit from a
relative or friend requested by the prisoner. This
subsection does not provide a prisoner with the right
to initiate communication or attempt to initiate
communication under circumstances prescribed under AS
11.56.755."
Renumber the following bill sections accordingly.
REPRESENTATIVE GRUENBERG objected. Representative Gruenberg
pointed out that Amendment 2 offers to insert nearly the same
language that was in [the original version of] HB 244 but which
was rejected last year via an amendment. The only change, he
opined, from the original language that was rejected and today's
Amendment 2 is that the visit from the attorney - in paragraph
(3) - could now be an immediate visit. In essence, last year's
amendment added language to the effect that the attorney
described in paragraph (3) could be requested not only by the
prisoner but also by any relative or friend of the prisoner;
Amendment 2 seeks to undo this change that was made last year to
the original version of HB 244. Representative Gruenberg asked
Representative Samuels if he would be amenable to including "or
any relative or friend of the prisoner" after "prisoner" in
proposed paragraph (3) of Amendment 2.
REPRESENTATIVE SAMUELS said that the purpose of Amendment 2 is
to eliminate that language. Representative Samuels clarified
that he is attempting reinsert language that the amendment from
last year took out.
REPRESENTATIVE GRUENBERG pointed out, however, that [all the
language] isn't being reinserted because Amendment 2 doesn't
include the language "or any relative or friend of the prisoner"
after "prisoner".
CHAIR McGUIRE clarified that Representative Samuels is trying to
eliminate the ability of a relative or friend to be the one
requesting an attorney to visit a defendant. Therefore,
Amendment 2 makes it clear that the defendant can initiate
contact with an attorney or telephone a friend or relative, but
a friend or relative can't then solicit the attorney's
participation.
Number 1994
REPRESENTATIVE GRUENBERG moved that the committee adopt an
amendment to Amendment 2, which would insert "or any friend or
relative of the prisoner" [after "prisoner"].
REPRESENTATIVE SAMUELS objected, and announced that if the
amendment to Amendment 2 passes, he would withdraw Amendment 2.
Representative Samuels opined that someone else shouldn't be
able to invoke someone's rights. When someone is arrested, that
individual's rights are specified. He noted that there are
already standards for those who don't speak English or those
with mental difficulties. However, the current legislation
differentiates between two people who have been accused of the
same crime, and one individual is allowed "a second bite at the
apple," and the aforementioned isn't fair, he opined.
CHAIR McGUIRE recalled the debate during hearings on the
original version of HB 244 in which there was reference to
attorneys inside or outside the courthouse soliciting
[defendants]. She questioned whether the problem could be
solved differently [than via the proposal encompassed in
Amendment 2]. Perhaps, there could be a prohibition against
attorneys being around the courthouse and soliciting.
REPRESENTATIVE SAMUELS specified that it's not just the
attorneys. He reiterated that only the individual being
arrested should be able to invoke his or her rights.
REPRESENTATIVE GRUENBERG said that the problem with Amendment 2
is that as written it is broader than what Representative
Samuels has suggested. Amendment 2 would include more than just
those [under arrest] who have said they don't want an attorney;
rather, Amendment 2 includes everyone. Representative Gruenberg
highlighted that most individuals who are arrested are quite
traumatized, and therefore may not have the presence of mind or
ability to obtain an attorney. [Amendment 2] specifies that if
a friend or relative hires an attorney for the prisoner, then
that attorney is prohibited from talking to the prisoner even if
the prisoner has never said he or she didn't want an attorney.
This isn't a question of equal protection, rather "that's the
tail wagging the dog," he opined, and posed a situation in which
an 18-year-old is arrested and doesn't think about asking for an
attorney - [under Amendment 2] the father can't hire an attorney
to advise his son.
Number 2219
REPRESENTATIVE GARA said that he opposes [Amendment 2]. In the
context of these amendments, Representative Gara said that he
thinks in the context of those innocent individuals that he has
represented. He posed a situation in which an innocent person
is taken to jail and calls home only to reach the 14-year-old
brother. The prisoner and the 14-year-old don't know what to do
and the phone call ends. No attorney is coming, and the
prisoner hasn't asked for an attorney. Later, the prisoner
talks with his mother, who secures an attorney. However, under
[Amendment 2], the government can prevent the attorney from
speaking to the prisoner. Representative Gara opined that the
aforementioned is a bad policy. He inquired as to the harm of
placing someone who has been arrested on equal footing with the
government with regard to having someone with some expertise.
REPRESENTATIVE SAMUELS, in response, posed a situation in which
a young girl has been raped by a man who is confessing to the
crime. However, the interview is interrupted because the man's
friend suggested that he needs an attorney. If another
individual - a parent, a friend, a relative - invokes the rights
of the man confessing, the confession is gone and the victim is
"left hanging." "Most crimes are solved because stupid people
commit crimes and then ... confess to them," he opined.
Therefore, if one wants an attorney, he or she should make that
request. Furthermore, he recalled that a juvenile has the right
to call his or her parent, but the juvenile can also waive that
right.
REPRESENTATIVE GRUENBERG emphasized that the constitution and
the law is present to protect everyone. Even the guilty have a
right to an attorney. If one's only goal is to convict the bad
guys, then that individual would be against anything that's
fair. He characterized this change as a slippery slope.
REPRESENTATIVE GARA opined that the real benefit of [Amendment
2] will be to the repeat offender who knows that the first thing
one must do is request an attorney. However, [Amendment 2]
doesn't help those individuals involved with the criminal system
for the first time because they aren't going to think to request
an attorney. Representative Gara acknowledged that he tends to
discuss criminal legislation [in the context of the innocent
person who is arrested].
TAPE 04-62, SIDE B
Number 2393
REPRESENTATIVE GARA pointed out that Representative Samuels
tends to discuss the impact such legislation would have on the
guilty person who abuses the system. The truth, Representative
Gara posited, is that it will impact both.
CHAIR McGUIRE noted her frustration with these situations
because she wishes more people who commit crimes wouldn't use
the system to get off. However, she also noted that the laws
are present to protect [everyone's] constitutional rights.
MS. PARKES clarified that [Amendment 2] won't take away anyone's
constitutional right because each individual has the ability to
personally invoke his/her rights. The question is whether one
should have the ability to invoke another individual's
constitutional rights. Allowing an attorney to interrupt an
interview provides some individuals extra rights that can be
invoked by someone else.
REPRESENTATIVE ANDERSON inquired as to how many people will
know, should Amendment 2 fail, that a friend or family member
could obtain an attorney for the prisoner.
REPRESENTATIVE SAMUELS pointed out that [current law] already
allows this.
CHAIR McGUIRE noted that the bill was trying to change this
situation last year.
REPRESENTATIVE GRUENBERG said he agrees that Ms. Parkes is
correct in that there isn't a constitutional right to this.
However, he pointed out that in Alaska it's a long-standing
legal right. In many cases, Alaska law is more protective than
the federal constitution. If Amendment 2 were to pass, it would
change long-standing Alaska law. Representative Gruenberg
announced that he [is withdrawing] his amendment to Amendment 2.
REPRESENTATIVE SAMUELS opined that with the amendment one should
choose the victim's [point of view].
Number 2195
A roll call vote was taken. Representatives Samuels, Holm,
Anderson, and McGuire voted in favor of Amendment 2.
Representatives Gara and Gruenberg voted against it. Therefore,
Amendment 2 was adopted by a vote of 4-2.
The committee took an at-ease from 2:49 p.m. to 2:50 p.m.
Number 2107
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 18 with handwritten changes, labeled with an "M" in
the lower right corner, which read [original punctuation
provided]:
Page 8, Sec 14 lines 18-22, omit all of proposed
section 14.
[Sec. 11.81.345. DEFENSE OF SELF AND OTHERS. A COURT
MAY INSTRUCT THE JURY ABOUT THE JUSTIFICATION
DESCRIBED IN AS 11.81.330-11.81.340 IF THE COURT,
SITTING WITHOUT A JURY, FINDS THAT THERE IS SOME
PLAUSIBLE EVIDENCE TO WARRANT A REASONABLE JURY TO
FIND THE ELEMENTS OF THE JUSTIFICATION.]
CHAIR McGUIRE objected.
REPRESENTATIVE GRUENBERG explained that this provision is the
result of the Folger v. State case [648 P.2d 111, 113 (Alaska
App. 1982)]. He specified that there is language in the
aforementioned case and others, such as Toomey and Westin (ph),
that makes it clear that the burden is on the defendant to
produce some evidence supporting a claim of self-defense before
being entitled to jury instruction on that defense. [Section
14] is an attempt to change the aforementioned standard, and
therefore he has offered Amendment 18.
REPRESENTATIVE GRUENBERG said that the only question is
regarding whether there is enough evidence to go to the jury.
Representative Gruenberg turned to Toomey, 581 P.2nd 1124, 1126,
note 6, from Alaska Supreme Court, 1978, and offered a quote as
follows: "The term 'some evidence' was defined, albeit in
another context, by our Supreme Court in LeBlonde v. State as
'evidence, in light of which a reasonable jury could've
entertained a reasonable doubt as to the element in question.'"
He pointed out that the only reason the term "implausible" was
ever used was in order to specify that it's not up to the court
to weigh the evidence because that's the jury's responsibility.
The aforementioned is a constitutional right, he opined, and if
Section 14 is passed, the standard would be changed in the civil
and criminal context. Representative Gruenberg mentioned that
he is hypothetically taking this issue to the supreme court in a
civil context. He noted that this question comes up on summary
judgments when a case is taken and dismissed before the jury
gets it.
Number 1910
MS. PARKES acknowledged that the desire is to change the
standard of evidence that will allow a case to proceed to a
jury. There are many cases wherein the current standard has
been interpreted to mean that any evidence, even a scintilla of
evidence or implausible evidence, allows a jury to receive a
self-defense instruction. The [DOL] is requesting that it be
"bumped up" a bit. She reminded the committee that last year
the DOL wanted to shift the burden and make self-defense an
affirmative defense. [Section 14] merely specifies that there
needs to be some plausible evidence before such a defense can be
put before the jury, and then the state has to prove it wasn't
self defense beyond a reasonable doubt. Ms. Parkes pointed out
that judges frequently decide what relevant evidence is and what
will be allowed to come before a jury.
REPRESENTATIVE GRUENBERG emphasized that this isn't a question
of what evidence can be introduced. He relayed his
understanding from Ms. Parkes that the DOL's intent is to change
the standard so that the issue gets taken from the jury. The
question of taking a case from the jury is a divestment of a
constitutional right, which is the holding by the Alaska Supreme
Court in one case in the civil area. He specified that these
cases are grounded in the state and federal right to a jury
trial, and any attempt to change that standard runs afoul of
those constitutional rights. This legislature and the attorney
general have no ability to change it, he said.
REPRESENTATIVE GARA asked whether, if by saying "some plausible
evidence," Ms. Parkes means "any plausible evidence." If so, if
there is any plausible evidence, it would support the use of a
self-defense defense.
MS. PARKES replied yes. She explained that if there is some
plausible evidence on which the jury could rely, then the
individual will receive the instruction and the state will have
to prove beyond a reasonable doubt that it was not a case of
self defense. Ms. Parkes acknowledged that although this isn't
an evidence rule, what evidence is relevant and admissible may
well hinge on whether a judge says there is a valid self-defense
claim and whether a self-defense argument can be presented to a
jury. If a self-defense argument isn't allowed, much evidence
isn't going to come in because it wouldn't be relevant.
REPRESENTATIVE GARA mentioned that he is sympathetic to the
prosecution's view on this issue; however, the constitution
doesn't mandate that one be allowed to present implausible
evidence. In the civil context, the courts will dismiss a case
if it's only based on implausible evidence. In the criminal
context, it's fair, he opined, that before the prosecution is
given the burden of proving that it isn't a case of self
defense, that a scintilla of plausible evidence must be
presented.
Number 1722
A roll call vote was taken. Representatives Gruenberg voted in
favor of Amendment 18. Representatives Gara, Holm, and McGuire
voted against it. Therefore, Amendment 18 failed by a vote of
1-3.
Number 1688
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 19, which read [original punctuation provided]:
Page 12, line 7: Add a new bill section and renumber
bill sections and section references accordingly:
Sec. ___. AS 28.35.030(a) is amended to read:
(a) A person commits the crime of driving while
under the influence of an alcoholic beverage,
inhalant, or controlled substance if the person
operates or drives a motor vehicle or operates an
aircraft or a watercraft
(1) while under the influence of an alcoholic
beverage, intoxicating liquor, inhalant, or any
controlled substance, singly or in combination; or
(2) if [WHEN], as determined by a chemical test
taken within four hours after the alleged offense was
committed, there is 0.08 percent or more by weight of
alcohol in the person's blood or 80 milligrams or more
of alcohol per 100 milliliters of blood, or if [WHEN]
there is 0.08 grams or more of alcohol per 210 liters
of the person's breath[; OR
(3) WHILE THE PERSON IS UNDER THE COMBINED
INFLUENCE OF AN ALCOHOLIC BEVERAGE, AN INTOXICATING
LIQUOR, AN INHALANT, AND A CONTROLLED SUBSTANCE].
REPRESENTATIVE GRUENBERG commented that AS 28.35.030(a)(3)
seemed to have awkward phrasing, and therefore he felt that it
would read better grammatically with the adoption of [Amendment
19].
MS. PARKES said that the department doesn't have any objection
to Amendment 19.
Number 1534
CHAIR McGUIRE, upon determining that there were no objections,
announced that Amendment 19 was adopted.
Number 1530
REPRESENTATIVE GARA moved that the committee adopt Amendment 20A
[with handwritten changes], as follows [original punctuation
provided]:
Delete Page 13, lines 14-17
Insert in its place:
(s) In a prosecution under (a) of this section, a
person may introduce evidence on the amount of alcohol
consumed before or after operating or driving the
motor vehicle, aircraft or watercraft, to rebut or
explain the results of a chemical test, but the
consumption of alcohol before operating or driving
cannot be used as a defense that the chemical test did
not measure the blood alcohol at the time of the
operating or driving. Consumption of alcohol after
operating or driving the motor vehicle, aircraft or
watercraft may be used to raise such a defense.
CHAIR McGUIRE objected.
REPRESENTATIVE GARA explained that he has worked with the
language in order to eliminate the big gulp theory without going
any further than that. The language in Amendment 20A specifies
that if one want to rebut the evidence of a chemical test, the
individual can inform the jury as to how much alcohol was
consumed or not consumed before driving. But it's not a defense
that the [chemical test] measures one's alcohol level at the
time of the test as opposed to at the time of driving, he
further explained.
MS. PARKES said she has no objection to Amendment 20A.
Number 1400
CHAIR McGUIRE removed her objection. Upon determining there
were no further objections, Chair McGuire announced that
Amendment 20A was adopted.
Number 1382
CHAIR McGUIRE moved that the committee adopt Amendment 20B [with
handwritten changes], as follows [original punctuation
provided]:
Add a new section and renumber other sections
accordingly:
*Sec.__. AS 28.35.030(a) is amended to read:
(a) A person commits the crime of driving while
under the influence of an alcoholic beverage,
inhalant, or controlled substance if the person
operates or drives a motor vehicle or operates an
aircraft or a watercraft
(1) while under the influence of an
alcoholic beverage, intoxicating liquor, inhalant, or
any controlled substance;
(2) and if [WHEN], as determined by a
chemical test taken within four hours after the
alleged offense was committed, there is 0.08 percent
or more by weight of alcohol in the person's blood or
80 milligrams or more of alcohol per 100 milliliters
of blood, or [WHEN] there is 0.08 grams or more of
alcohol per 210 liters of the person's breath; or
(3) while the person under the combined
influence of an alcoholic beverage, an intoxicating
liquor, an inhalant, or [AND] a controlled substance.
Number 1346
CHAIR McGUIRE, noting that there were no objections, announced
that Amendment 20B was adopted.
Number 1332
REPRESENTATIVE GARA moved that the committee adopt Amendment 21,
on page 8, line 24, after "written" insert "or oral". There
being no objection, Amendment 21 was adopted.
Number 1279
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 22, which read [original punctuation provided]:
Page 5, line 9: Insert new bill section and renumber
bill sections and section references accordingly:
Sec. ___. AS 09.50.020(a) is amended to read:
(a) A person who is guilty of contempt is
punishable by a fine of not more than $300 or by
imprisonment for not more than six months. However,
when the contempt is one mentioned in AS 09.50.010(3)-
(12), or in an action before a magistrate, the person
is punishable by a fine of not more than $100 unless
it appears that a right or remedy of a party to an
action or proceeding was defeated or prejudiced by the
contempt, in which case the penalty shall be as
prescribed for contempts described in AS 09.50.010(1)
and[,](2)[, AND (13)].
Page 7, lines 23-31: Amend existing language as
follows
Sec. 11.56.758. Violation of custodian's duty. (a) A
person commits the crime of violation of a custodian's
duty if the person knowingly fails, when acting as a
custodian appointed by the court for a released person
under AS 12.30, to report immediately as directed by
the court that the person released has violated a
condition of the release.
(b) Violation of custodian's duty is
[(1) A CLASS A MISDEMEANOR IF THE RELEASED PERSON
IS CHARGED WITH A FELONY;
(2)] a class B misdemeanor [IF THE RELEASED
PERSON IS CHARGED WITH A MISDEMEANOR].
Number 1272
CHAIR McGUIRE objected.
REPRESENTATIVE GRUENBERG explained that the first portion of
Amendment 22 is a conforming amendment. Representative
Gruenberg specified that the language in Amendment 22 should be
inserted in the necessary location in [Version I]. The
amendment requires that the person must "knowingly fail" to
report the violation. Under current [law], this contempt of
court violation is punishable by six months in prison. The
second portion of Amendment 22 makes the violation a class B
misdemeanor, which makes it subject to three months in prison.
REPRESENTATIVE GRUENBERG pointed out that the "repealer section"
already repeals the contempt provision on page 15, line 25, and
therefore it wasn't necessary to do it via Amendment 22.
However, he added, it is necessary to repeal a reference to it.
Representative Gruenberg then turned attention to [a letter
from] Jerry Luckhaupt, Attorney, Legislative Legal and Research
Services, dated April 6, 2004, which specifies that a conforming
amendment is necessary: "AS 12.30.020(b)(1) will also need to
be amended because of the repeal of AS 09.50.010(13) ... because
that references that particular statute."
Number 1098
REPRESENTATIVE GRUENBERG moved that the committee conceptually
amend Amendment 22 such that it conforms to AS 12.30.020(b)(1).
Number 1071
CHAIR McGUIRE, upon determining there were no objections to the
conceptual amendment to Amendment 22, announced that it was
adopted. Therefore, Amendment 22, as amended, was before the
committee.
REPRESENTATIVE GRUENBERG opined that 90 days in jail is a
sufficient penalty for failing to report someone. Furthermore,
the arduous task of proving contempt isn't required.
REPRESENTATIVE SAMUELS recalled that contempt was the middle
ground and a class B misdemeanor lowers the penalty and a class
A misdemeanor raises it. However, under Amendment 22, as
amended, all of the penalties would be lower, even if the person
being supervised committed it's a felony.
REPRESENTATIVE GRUENBERG replied yes, and opined that it's
better to make it a regular class of crime.
Number 1010
MS. PARKES noted her support of repealing the contempt provision
and that she didn't oppose inserting the "knowingly fails"
language. However, she urged the committee to maintain the
differentiation between a class A and class B misdemeanor.
Number 0918
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 22, as amended. Representatives
Samuels, Holm, and McGuire voted against it. Therefore,
Amendment 22, as amended, failed by a vote of 2-3.
Number 0906
CHAIR McGUIRE moved that the committee adopt Amendment 23, as
follows [original punctuation provided]:
Page 5, line 9: Insert new bill section and renumber
bill sections and section references accordingly:
Sec. ___. AS 09.50.020(a) is amended to read:
(a) A person who is guilty of contempt is
punishable by a fine of not more than $300 or by
imprisonment for not more than six months. However,
when the contempt is one mentioned in AS 09.50.010(3)-
(12), or in an action before a magistrate, the person
is punishable by a fine of not more than $100 unless
it appears that a right or remedy of a party to an
action or proceeding was defeated or prejudiced by the
contempt, in which case the penalty shall be as
prescribed for contempts described in AS 09.50.010(1)
and[,](2)[, AND (13)].
Page 7, lines 23-31: Amend existing language as
follows
Sec. 11.56.758. Violation of custodian's duty. (a) A
person commits the crime of violation of a custodian's
duty if the person knowingly fails, when acting as a
custodian appointed by the court for a released person
under AS 12.30, to report immediately as directed by
the court that the person released has violated a
condition of the release.
With a conforming amendment to AS 12.30.020(b)(1)
because of the repeal of AS 09.50.010(13).
Number 0862
CHAIR McGUIRE, after ascertaining that there were no objections,
announced that Amendment 23 was adopted.
Number 0850
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 24, which read [original punctuation provided]:
Page 8, lines 1-17: Delete bill section 13.
CHAIR McGUIRE objected.
REPRESENTATIVE GRUENBERG said "This is presently overbroad," and
clarified that he believes that [Section 13] speaks to the wrong
[statute] and should [reference] the deadly force [statute]
because [under Section 13] one isn't able to use nondeadly force
when fleeing from a drug deal.
Number 0608
MS. PARKES remarked that Section 13 applies to the use of deadly
force. Based on the discussions and the way the legislation has
been narrowed to a deadly weapon and felonious conduct, she
urged the committee to keep Section 13 in the bill. If someone
uses a gun to shoot someone and doesn't kill that individual,
the same arguments apply for non-deadly force as well. The
desire is to take away self-defense in dangerous situations in
which people know they are entering dangerous situations.
REPRESENTATIVE GRUENBERG recalled discussion regarding shifting
the burden, and noted his dislike of the prohibiting a
particular defense. He pointed out that AS 11.81.900(18)
discusses the defenses in Alaska, including self-defense, and
currently the burden isn't placed on the defendant. He offered
his belief that there has been a concerted effort in Alaska to
not make self defense an affirmative defense.
CHAIR McGUIRE said she is opposed to Amendment 24. She recalled
that the DOL came out with a broad version of Section 13 last
year and it was rejected. The DOL has since fine-tuned the
concept. She opined that there are compelling arguments that in
gang activity, it really can be a case in which everyone says
[their actions] were in self-defense. A rebuttable presumption
would eliminate the argument that there is a constitutional
right to argue it. Therefore, the burden would be shifted and
wouldn't be on the prosecution.
REPRESENTATIVE GRUENBERG said:
They seem to want to take cases up to the supreme
court, at least of Alaska, probably up to the Supreme
Court of the United States. They want to ... test the
theory [of] whether they can absolutely prohibit a
defense like this under the constitution of the state
and the U.S. If they want to spend the state's money
on this and take this state and this country back into
the dark ages, I don't think they'll be successful.
But I don't want to make this any better because I
think this is clearly unconstitutional. And if they
do it, the court will strike it down and we'll be
right back where we are, which is constitutional.
Number 0260
MS. PARKES said that the department would oppose [Amendment 24].
The amendment to 11.81.330 discusses using a deadly weapon, and
therefore is restricted to those situations. She offered her
recollection that the Bangs (ph) case discusses and upholds the
state's ability to prohibit the use of self-defense in certain
situations, and Section 13 merely sets forth a few more
circumstances in which the state can prohibit the use of self-
defense. The DOL believes that the court has already said that
prohibiting it in certain situations would be acceptable.
Therefore, having a rebuttable presumption isn't the direction
the DOL wants to go in.
CHAIR McGUIRE maintained her objection.
Number 0100
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of the adoption of Amendment 24. Representatives
Samuels, Holm, and McGuire voted against it. Therefore,
Amendment 24 failed by a vote of 2-3.
Number 0010
REPRESENTATIVE SAMUELS moved to report the proposed CS for HB
244, Version 23-LS1024\I, Luckhaupt, 4/6/04, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
TAPE 04-63, SIDE A
Number 0001
REPRESENTATIVE GRUENBERG objected.
The committee took an at-ease from 3:34 p.m. to 3:35 p.m.
CHAIR McGUIRE reminded the committee that it's her discretion as
the chair of the House Judiciary Standing Committee to interpret
Uniform Rule 24(a) to read that a majority of members present is
what's required so long as a quorum is in place to report
legislation from a standing committee.
Number 0113
A roll call vote was taken. Representatives Samuels, Holm, and
McGuire voted in favor of reporting the proposed CS for HB 244,
Version 23-LS1024\I, Luckhaupt, 4/6/04, as amended, from the
committee. Representatives Gara and Gruenberg voted against it.
Therefore, CSHB 244(2d JUD) was reported out of the House
Judiciary Standing Committee by a vote of 3-2.
REPRESENTATIVE GRUENBERG noted that he supported the ruling of
the chair with regard to her interpretation of Uniform Rule
24(a).
Number 0121
REPRESENTATIVE GRUENBERG made a motion to adopt a letter of
intent, which read [original punctuation provided]:
The Alaska State Legislature acknowledges the findings
contained in the Alaska Judicial Council's study
"Alaska Felony Process: 1999" that the use of third
party custodians was initially intended to give
indigent defendants an equal opportunity for
predisposition release, that this bail condition was
one of the most important influences on the length of
time that defendants spent incarcerated before
disposition of their cases, and that this bail
condition has resulted in substantially longer terms
of predisposition incarceration in non-violent type
cases. Given the right to bail guaranteed by Article
I, Section 11 of the Alaska Constitution, it is the
intent of the Legislature that judicial officers more
rigorously apply the statutory framework set out in AS
12.30.010-029 for pretrial release. It is the intent
of the Legislature that judicial officers appoint
third party custodians in a manner that will further
the intent of the statute.
CHAIR McGUIRE, noting that there were no objections, indicated
that the letter of intent was adopted and would be forwarded
with CSHB 244(2d JUD).
The committee took an at-ease from 3:39 p.m. to 3:59 p.m.
HB 336 - CIVIL DAMAGES FOR UNINSURED DRIVERS
Number 0200
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 336, "An Act limiting recovery of civil damages
by an uninsured driver; and providing for an effective date."
[Before the committee was the proposed committee substitute (CS)
for HB 336, Version 23-LS1254\D, Bullock, 2/23/04, which had
been adopted as a work draft on 4/6/04]
Number 0260
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor of
HB 336, noted that there were questions in the last meeting
about the definition of "noneconomic losses" mentioned in
[Section 1 of the bill]. He referred to AS 09.17.010(a), where
noneconomic losses is defined, and noted his acceptance of that
definition. He asked if the committee has any concerns about
using the definition found there.
CHAIR McGUIRE replied, "We get it." She asked if there were any
amendments for HB 336. Hearing none, she then asked for
discussion on the bill.
REPRESENTATIVE GARA said that he has already listed all of the
reasons why he does not like the bill. If a motion is made to
report it out of committee, he will object, he added.
Number 0317
REPRESENTATIVE SAMUELS moved to report the proposed committee
substitute (CS) for HB 336, Version 23-LS1254\D, Bullock,
2/23/04, out of committee with individual recommendations and
the accompanying fiscal notes.
Number 0321
REPRESENTATIVE GARA objected.
A roll call vote was taken. Representatives Samuels and McGuire
voted in favor of reporting the proposed CS for HB 336, Version
23-LS1254\D, Bullock, 2/23/04, from committee. Representatives
Gara, Gruenberg, and Holm voted against it. Therefore, CSHB
336, Version D, failed to be reported from the House Judiciary
Standing Committee by a vote of 2-3.
CHAIR McGuire announced that HB 336 would be set aside.
HB 490 - EMPLOYMENT SECURITY ACT AMENDMENTS
Number 0385
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 490, "An Act relating to the release of
employment security records, to the admissibility of
determinations and decisions regarding unemployment compensation
benefits, and to contributions, interest, penalties, and
payments under the Alaska Employment Security Act; providing
that property under the Alaska Employment Security Act is not
subject to the Uniform Unclaimed Property Act; and providing for
an effective date."
Number 0401
THOMAS NELSON, Director, Division of Employment Security,
Department of Labor & Workforce Development (DLWD), explained
that he would be speaking to Sections 4-7, 9, and 11-13 of HB
490 and that a representative from the Department of Law (DOL)
would address other sections of the bill. He characterized the
proposed changes as largely housekeeping measures and
clarification of existing statute that will provide Alaska a
language alignment with federal law and bring Alaska into
compliance with the unemployment insurance overpayment
arrangement it has with other states.
MR. NELSON said that Section 4 authorizes the DLWD to adopt
regulations providing for the distribution of unclaimed, excess
contributions. Sections 5, 6, and 9 clarify statute by adding
the terms "manager" and "limited liability company" to existing
definitions. Section 7 brings Alaska into conformity with the
interstate reciprocal overpayment recovery arrangement and
provides the Division of Employment Security the ability to
collect unemployment insurance overpayments on behalf of other
states for reasons other than fraud; states participating in
this agreement already provide this service to Alaska.
MR. NELSON said that Section 11 aligns Alaska language with
federal law by clarifying which healthcare professionals are
excluded from the definition of employment; only student nurses
and medical interns are excluded, and Section 11 clears up
existing language. Section 12 clarifies language that provides
an exclusion, from the definition of wages, of payments or
benefits provided by an employer for purposes of educational
assistance to its employees; federal law already provides this
exclusion from its definition of wages. Section 13 removes
reference to the provisions of Department of Revenue (DOR) law
regarding disposal of abandoned property; federal law requires
that unclaimed excess contributions be deposited back into the
unemployment insurance trust fund.
CHAIR McGUIRE said she sees nothing particularly controversial
about HB 490 in that it appears to bring Alaska law into
compliance with federal law.
Number 0654
TOBY NANCY STEINBERGER, Assistant Attorney General, Labor and
State Affairs Section, Civil Division (Anchorage), Department of
Law (DOL), explained that Sections 1-3 pertain to allowing the
release of employment security records for criminal
investigation and prosecution purposes, and that Section 8
pertains to the binding effect of unemployment compensation
decisions. Sections 1-3 will help federal, state, and municipal
prosecutors in investigating and prosecuting criminal cases by
helping them locate suspects, witnesses, victims, and persons on
parole. When paying employment security taxes, employers
provide quarterly payroll information for each employee to the
Division of Employment Security; thus the location information
on employees is very current.
MS. STEINBERGER also pointed out that because the Division of
Employment Security pays unemployment benefits to qualifying
persons, these persons provide the division with information
about where they reside. The Division of Employment Security is
heavily federally funded, she remarked, and the U.S. Department
of Labor requires that the employment security records be kept
confidential, but has allowed, over the years, a number of
exceptions, which are found in AS 23.20.110. Unfortunately none
of the current exceptions allow for the release of information
for criminal prosecution and investigation purposes other than
for prosecuting cases against claimants who have fraudulently
received unemployment compensation benefits.
MS. STEINBERGER relayed that over the years, because the
Division of Employment Security's information is updated
quarterly, the Criminal Division of the DOL has requested this
information in order to find witnesses and victims.
Unfortunately, the Division of Employment Security has had to
deny these requests. She noted that upon review of Sections 1-3
of HB 490, the U.S. Department of Labor has approved the
proposed changes and has in fact permitted other states to allow
the release of employment security information for purposes of
criminal investigations and prosecutions. These other states
include Washington, Iowa, Arkansas, Georgia, Utah, and Oklahoma.
MS. STEINBERGER, directing attention to Section 8, which will
amend AS 23.20.497, explained that persons who are denied
unemployment benefits are entitled to a hearing, but current
statute provides that unemployment compensation decisions are
not admissible in a subsequent action or proceeding in another
forum, for example, if an employee brings a lawsuit against
his/her employer. Employers have little incentive to
participate in unemployment compensation proceedings because,
unless they are self insured, they have no financial interest in
the outcome. Section 8 will clarify that unemployment
compensation decisions are not only inadmissible in a court or
administrative proceeding but are also inadmissible in an
arbitration proceeding.
Number 0884
REPRESENTATIVE GRUENBERG asked whether there would be any
objections to adding the words "to them" to page 3, line 7; the
text of Section 7 would then read in part, "if the sums were
obtained by an individual who is not entitled to them".
CHAIR McGUIRE surmised that such language is not needed.
REPRESENTATIVE HOLM surmised that that meaning is implicit.
REPRESENTATIVE GRUENBERG, turning attention to page 3, line 15,
asked whether "limited partnership" and "limited liability
partnership" should be added.
MS. STEINBERGER pointed out that "partnership" is already
included in the text of Section 9, which merely updates Title 23
to include "limited liability company", which is a whole new
entity that has been provided for in Title 10.
REPRESENTATIVE GRUENBERG offered his recollection, however, that
Title 32 was recently amended by adding a new chapter pertaining
to "limited liability partnerships", which are not addressed in
the "uniform partnership Act."
MS. STEINBERGER said, "You may want to add 'limited liability
partnerships'."
CHAIR McGUIRE suggested that they make a conceptual amendment
"to ask the drafters to be clear that whenever these forms of
businesses or employing units are referenced throughout, that it
includes all of the various forms of partnerships, limited
liability partnerships, limited liability companies, and so on,
that it could."
Number 1049
REPRESENTATIVE GRUENBERG made a motion to adopt Chair McGuire's
suggestion as Conceptual Amendment 1. There being no objection,
Conceptual Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG turned attention to Section 2 of the
bill and asked if it should include language allowing the
release of information for the purpose of enforcing child
support.
MS. STEINBERGER relayed that such an exception is already
included in AS 23.20.110(o).
REPRESENTATIVE GARA asked whether the state is allowed to
provide unemployment benefits to people whom the federal
government does not.
MS. STEINBERGER noted that current Alaska law [allows benefits]
to "health professionals and health nurses," but HB 490 attempts
to conform state law to federal law.
REPRESENTATIVE GARA mentioned that he is referring specifically
Sections 11 and 12.
MR. NELSON said of Section 11, "We already have existing
language, but it's quite confusing to some employers in Alaska,
so we're spelling it out, exactly who is exempt from the
definition of employment for the purposes of unemployment
insurance contributions."
REPRESENTATIVE GARA said he is not sure he agrees with the
policy of limiting the availability of unemployment compensation
to medical and nursing interns and of not counting the benefits
referred to in Section 12 as wages for unemployment purposes.
Number 1223
MS. STEINBERGER remarked that the language in the bill will
provide that student nurses will not get unemployment benefits
and the employer will not have to pay taxes on student nurses or
medical students who are interning and receiving some income.
CHAIR McGUIRE characterized the foregoing as an incentive to
employers who hire student nurses.
MR. NELSON said that Section 12 speaks to training systems
provided by employers to employees and those amounts of money
not being counted toward wages. Federal law currently allows
for "this," but Alaska law does not yet. He said that the
exclusion provided for via Section 11 is not a change; rather,
the language is simply being clarified. He added:
And the reason we asked for that is, there was an
instance in the state several years ago, or within the
last two years, in which an employer misinterpreted
this and it resulted in a mistake on their
unemployment insurance contributions as an employer,
and it was quite expensive, and the remedy and the
cost of recovering that amount of money was quite
extensive.
MR. NELSON, in response to a question, said that in the
aforementioned instance, the employer employed nurses that were
not student nurses but didn't pay their contributions, and so
the [DLWD] had to recover those monies because, under current
law, the employer is required to pay for nurses that are not
student nurses.
CHAIR McGUIRE acknowledged that the current statutory language
could be misinterpreted to apply to all nurses.
Number 1351
REPRESENTATIVE HOLM moved to report HB 490, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal note.
Number 1369
REPRESENTATIVE GARA objected for the purpose of providing a
comment. He said:
There's potentially another side to this whole story
and I don't know that I've heard it ... - maybe
there's not, maybe there is - and I feel uncomfortable
voting on this with the amount of information I have
right now. ... To the extent that I hear information
that makes me think otherwise, I might vote against it
on the floor; I just wanted you to know that.
REPRESENTATIVE GARA then withdrew his objection.
Number 1393
CHAIR McGUIRE asked whether there were any further objections to
the motion. There being no objection, CSHB 490(JUD) was
reported from the House Judiciary Standing Committee.
HB 275 - VETERINARIANS AND ANIMALS
Number 1416
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 275, "An Act relating to veterinarians and
animals." [Before the committee was CSHB 275(L&C).]
Number 1469
TRACIE AUDETTE, Owner, Fairhaven, said she is very concerned
about the language on page 2, lines 9-14, and suggested that it
needs clarification regarding the extra power being given to
licensed veterinarians. She said she would like to see added to
the bill, [after paragraph (4)] on page 2, language to the
effect of: "Other standard practices commonly performed on farm
or domestic animals in the routine course of farming or animal
husbandry or animal care or treatment when performed by the
owner, the owner's employee, or the owner's agent acting with
the owner's approval." She also asked that attention be given
to the fact that although "animal husbandry" is used in statute,
it is not currently defined in statute. She relayed that she is
an animal therapist and does physical rehabilitation, and
although she is not currently practicing, she does have a
business license under the category of animal husbandry.
Number 1583
CAROL GIANNINI, Staff to Representative Harry Crawford, Alaska
State Legislature, sponsor of HB 323, noting that she
participated in "the original drafting of the bill that this was
based on," said she is available for questions. In response to
questions, she relayed that she has a copy of the Department of
Law's suggested changes, and that Representative Crawford has
other proposed amendments that she can explain.
Number 1751
SALLY CLAMPITT, President, Alaska Equine Rescue (AER), said she
wants to emphasize the need to keep language regarding minimum
standards of care in order to empower licensed veterinarians to
be involved in the process of determining the conditions of
animals that are taken in as a result of cruelty cases. She
said she is glad to hear testimony from Ms. Audette, but relayed
that she has concern about replacing language regarding
veterinary care with language regarding care provided by
holistic practitioners. She added, "I'm not sure that it would
be appropriate to make it a hardcore provision, here, on equal
footing with veterinary care because it would seem to me, then,
that it may also become a defense, here, of cruelty ...
Number 1818
SHARALYN WRIGHT, Staff to Representative Mike Chenault, Alaska
State Legislature, sponsor, interrupted Ms. Clampitt and
suggested she call Representative Chenault's office and discuss
her concerns regarding this issue outside of the committee
process.
MS. CLAMPITT, in conclusion, said she wholeheartedly supports HB
275.
MS. AUDETTE, in response to comments, clarified that she
intended that her suggested language be added to the bill rather
than replacing any language currently in the bill.
Number 1872
LISA ZEIMER, noting that she is an animal rescuer and owns three
rescued dogs, said she thinks HB 275 is a great bill, is long
overdue, and will go a long way towards securing the safety of
and compassion towards animals in Alaska. She offered her
belief that there is a link between animal cruelty and domestic
violence, adding that there is a saying that in a house where
people aren't safe, animals aren't safe, and visa versa. She
went on to say:
I think that animal cruelty prosecutions may indeed be
able to prevent more serious prosecutions down the
line. I think that ... if we were to pass this law,
... this could be a very powerful tool for
interdiction. And ... by seeing animal cruelty,
you're kind of getting a glimpse at the tip of the
iceberg, and ... maybe some of these behaviors can be
stopped in their tracks before they do accelerate and
go into the realm of human victims. And I also feel
that in terms of costs, if we don't pay now, we're
going to end up paying more later, and I believe that
with all my heart.
MS. ZEIMER indicated that it is time to start holding those who
commit acts of animal cruelty accountable for their actions.
Currently, she remarked, it is the people like herself and
others that are involved in the animal welfare community who
step up to the plate and spend time, money, and emotional energy
in cleaning up the messes caused by those who, often repeatedly,
commit acts of animal cruelty. She suggested that society needs
to get past the attitude of looking at animals as mere property;
a broken leg on a puppy is whole lot different than a broken leg
on a table, she added. She opined that passage of HB 275 would
be in keeping with the spirit of the people of Alaska, and would
be the mark of a civilized state and civilized society.
CHAIR McGUIRE ascertained that no one else wished to testify,
and noted that Representative Crawford was present.
Number 2061
MS. GIANNINI, referring to Ms. Audette's suggested change, said
she questions whether such additional language is necessary
because she is not sure that the current language on page 2
excludes the type of care to which Ms. Audette referred. She
also noted that page 5 contains an exclusion regarding conduct
that conforms to accepted veterinary or animal husbandry
practices. Turing to the issue of cost, she said:
One thing that is not clear from the fiscal note is,
in the past, when the state has taken animals from an
owner and turns them over to [an] agency, my
understanding is that the state (indisc.) is really
liable for the cost of the care of the animal. And I
believe that there have been several cases where
considerable expense was put into medical care and
treatment, and then the receiving agency has looked
back to the state to be reimbursed for those expenses.
One of the provisions in this bill is that [an]
individual or an agency who now receives the animal
under this bill does so knowing that they cannot go
back and look to the state for reimbursement anymore.
So ... that kind of savings, if there is indeed a
savings, is not going to show up in the fiscal note,
and I just think that's something that's important to
think about when you're considering any fiscal note
that's attached to this bill.
CHAIR McGUIRE asked whether any thought has been given to
including a provision that would allow for recovery of expenses
from the original possessor of the animal.
REPRESENTATIVE GRUENBERG said he has given that issue some
thought.
REPRESENTATIVE GARA, relaying that he couldn't stay for the rest
of the meeting, said:
I'm very supportive of the bill. Certainly the ...
testimony that people who abuse animals are also
people who end up doing worse things in society is
compelling to me. ... There's only one section of the
bill that I have a comment on, and it's on page 4,
lines 27 and 28. I ... would like to ... strongly
punish those who engage in intentional animal cruelty,
or what we consider to be animal cruelty. Lines 27
and 28 deal with reckless or accidental failures to
provide care to an animal.
It say's "reckless" right now, [but] there's [a
proposed] amendment to move that also to criminally
negligent, and I guess I would just say to the members
of the committee - ... we're all trying to get after
cruelty, we're all trying to get after intentional
conduct - I would ask people to take a close look at
lines 27 and 28 and decide what we want to do there
about conduct that's not intentional, [conduct] that's
irresponsible but not intentional.
Number 2239
REPRESENTATIVE GARA, in response to a question, said he does not
think he supports "the criminally negligent language," adding,
"It's the only part of the bill ... that really deals with
people who aren't intentionally out there trying to hurt
animals."
CHAIR McGUIRE asked whether he would support such language if it
specified that the behavior results in the death of an animal or
causes serious physical pain.
REPRESENTATIVE GARA said:
It's incorporating the standards in [proposed AS
03.55.100], which talks about providing food,
providing water, providing ample surroundings for an
animal. What I would not want to happen would be for
a family to go on vacation, to come back, to realize
that it just really screwed up [and] the family ...
pet has suffered as a result of it [though] nobody
intended to hurt the animal.
The family then brings the animal into a veterinarian
who would rightly and ... appropriately be very
offended at what the family did, but then the
veterinarian is so offended that they call the
prosecutors, and then all of a sudden this becomes a
crime. Maybe it should be, but that's ... a policy
call I'd ask you to think about, and ask the sponsors
to talk about. And [I] could probably ... be
convinced, possibly, to go either way on that one -
that's just the one that I flagged.
Number 2299
MS. WRIGHT said:
Exactly that same thing happened to me eight years ago
with the neighbor's rottweiler that got loose and came
over, and my limping around for eight years is a
result of that. And yes, I do believe he was
criminally negligent. And a guinea pig compared to a
175-pound rottweiler are two different things, but
certainly this family did go on vacation and left the
dog outside ... with no food, no care, and it got
loose. ... So ... you're looking at different degrees
of negligence and an accident.
Well, accidents can happen with goldfish ..., but
common sense enters into this at some point that a
rottweiler left without food or care for a week is
certainly different than a guinea pig. ... There ...
[is] negligence and then there's real negligence, and
accidents like that usually don't happen by
responsible people.
REPRESENTATIVE GARA said that in a circumstance wherein the
owner left on vacation and said to himself/herself that the
animal could just wait to be fed until he/she returns, that
behavior is outrageous and that person should be punished.
However, in a circumstance where one spouse asks the other to
feed the animal before they go on vacation, he suggested that
such behavior is probably not reckless, but noted that the
legislature needs to be careful with what it defines as a crime.
"And certainly the lower levels of conduct are grounds for you
to lose your animal, but ... I would just want some discussion
by folks about whether that's something we want to throw people
in jail for, and you might convince [me] that it is," he added.
MS. WRIGHT pointed out, though, that it's a responsibility to
own an animal, whether it's a fish, a guinea pig, or a horse.
And if a person forgets to arrange for an animal's care before
leaving on vacation, he/she should use a telephone to ask
someone to look after the animal.
TAPE 04-63, SIDE B
Number 2393
REPRESENTATIVE GARA relayed that he had a cat that he used to
share chocolate with, but at the time he didn't know that cats
shouldn't eat chocolate. He said he could envision such
behavior as being considered reckless or criminal under the
bill.
MS. WRIGHT relayed that she has recently learned that she is not
supposed to feed her dog grapes, and acknowledged that under the
bill, doing so could result in her being guilty of reckless
endangerment.
CHAIR McGUIRE directed attention to the changes suggested by the
Department of Law (DOL). [These suggested changes were
presented and explained by Elise Hsieh from the DOL during the
bill's last hearing].
REPRESENTATIVE GRUENBERG indicated a preference for addressing
each of the DOL's suggested changes as separate amendments.
Number 2195
CHAIR McGUIRE referred to the DOL's suggestion to change
"include" to "includes" on page 1, line 6, and labeled it
Amendment 2. [None of the suggested changes were labeled
Amendment 1.] [Although no formal motion was made] Chair
McGuire asked whether there were any objections to adopting
Amendment 2. There being none, Amendment 2 was adopted.
MS. WRIGHT - referring to the DOL's suggestion to delete the
word "daily" from page 1, line 8 - offered her belief that
"daily" means every day and so should be included.
CHAIR McGUIRE said she disagrees, and surmised that the relevant
point is that the water be provided in sufficient quantity for
the animal's good health regardless of how often a person
chooses to provide it.
MS. GIANNINI asked whether removing the word "daily" would allow
someone to provide water only once a week.
CHAIR McGUIRE remarked that even if such is the case, the
relevant point is that the water is provided in an amount
sufficient to maintain the animal's good health.
Number 2065
CHAIR McGUIRE [made a motion to adopt] Amendment 3, to delete
"daily and" from page 1, line 8. There being no objection,
Amendment 3 was adopted.
Number 2049
REPRESENTATIVE GRUENBERG, noting that it is proper to use
"include" rather than "includes" on line 6, moved that the
committee rescind its action in adopting Amendment 2. There
being no objection, the committee rescinded its action in
adopting Amendment 2.
MS. WRIGHT - referring to the DOL's suggestion that proposed AS
03.55.100(a)(2) be rewritten for clarity - said that there were
several farmers that called the sponsor's office and objected to
the definition of an outdoor shelter.
Number 1997
CHAIR McGUIRE referred to the DOL's suggestion to add, on page
2, line 9, after "standards", the words "for the health and
safety of the animals", and labeled it Amendment 4. [Although
no formal motion was made] Chair McGuire asked whether there
were any objections to adopting Amendment 4. There being none,
Amendment 4 was adopted.
MS. WRIGHT - referring to the DOL's suggestion to add to
proposed AS 03.55.100(b), on page 2, line 14, the words, "In the
event of a disagreement under this paragraph, the State
Veterinarian will provide the professional opinion needed under
this paragraph." - relayed the sponsor's belief that including
such language could open the door to creating a fiscal note.
She suggested that the court system could be looked upon to be
the final arbiter in cases where veterinarians disagree.
CHAIR McGUIRE said she agrees.
REPRESENTATIVE GRUENBERG asked the DOL to comment on the fiscal
note issue.
Number 1938
ELISE HSIEH, Assistant Attorney General, Environmental Section,
Civil Division (Anchorage), Department of Law (DOL), relayed
that Kristin Ryan from the Department of Environmental
Conservation could better respond to that issue. She added,
however, that the idea behind this suggestion was that if a
serious conflict between two veterinarians arose, then the state
Veterinarian could weigh in with a final professional opinion.
Number 1929
KRISTIN RYAN, Director, Division of Environmental Health,
Department of Environmental Conservation (DEC), relayed that the
DEC has committed itself to maintaining a zero fiscal note even
if the suggested change is adopted, because situations could
arise wherein specialized veterinarians disagree when making a
determination regarding treatment of an animal. For example, if
a veterinarian who specializes in treating small animals is
asked to make a determination of cruelty to a farm animal,
he/she may not have the same type of expertise as a veterinarian
specializing in farm animals. "We felt that the state
veterinarian would probably be the best candidate to make a
[determination] of standards of care, rather than the court
system [which] does not have that expertise; ... the [DEC],
again, has agreed not to increase the fiscal note to make that
change," she concluded.
Number 1897
REPRESENTATIVE HARRY CRAWFORD, Alaska State Legislature, sponsor
of HB 323, remarked:
When we were looking at this, we wanted the local
veterinarian to be able to go out and make
determinations. I don't know how you say that ...
this is going to be only the final arbiter, because
somebody may want to ... contest it at every step of
the way. We felt that if we left it in the hands of
the state veterinarian, which we have only one, that's
not going to be present at the scene, then it's
unworkable; we would have to get the state
veterinarian there to make that final ... decision.
And I think that's the reason we put this in here as
having a licensed veterinarian making the decision on
the scene.
MS. HSIEH pointed out, though, that part of her suggested
language is, "In the event of a disagreement under this
paragraph". She elaborated:
I'm talking about maybe two local vets. Maybe one
local vet's been hired by someone who has 20 or 40
dogs that he typically takes care of ..., and then
another vet comes in and says, ... "That guy's not
taking care of his dogs." Well, the vet who gets paid
to take care of those 40 dogs might not agree. I'm
talking about that sort of local situation, where two
local vets somehow get in a disagreement. ... In that
case, to provide the professional opinion required
under that paragraph ..., the state [veterinarian] can
come in and listen to the two vets and sort of try
[to] figure out what's going on or [if] someone has a
biased opinion or a personal stake, and [then] provide
a more neutral, professional opinion under this
paragraph. This does not take powers away from the
court in any sense; when someone petitions to get
their animal back, I assume the courts are going to
look at any information they have and try [to] make
... a reasoned decision using evidence they have. I
hope that information is helpful to the committee.
Number 1786
MS. WRIGHT suggested that perhaps this issue could be better
addressed via regulation instead of statute.
MS. HSIEH offered:
You won't have the authority for regulations to allow
the state [veterinarian] to provide the professional
opinion under this paragraph unless this amendment
goes through. I don't see where you'd have the
[regulatory] authority to go ahead and do that. You'd
just end up with vets who are disagreeing, and that
will end up in a stalemate for [AS] 03.55.110 when
someone goes to try and actually move on to the next
stage, which is taking the animal.
REPRESENTATIVE GRUENBERG noted that his wife is on the animal
control board in Anchorage, and suggested that this issue will
cause the DEC to "become quite a bureaucracy" and will cost the
state money in the future.
CHAIR McGUIRE - referring to the DOL's suggestion to add to
proposed AS 03.55.100 a subsection (c) that would grant the DEC
the authority to promulgate regulations to implement AS
03.55.100 - offered her belief that it is probably appropriate
to grant the DEC that authority, and mentioned that a number of
members have expressed concern about this issue.
MS. HSIEH, in response to a question, relayed that statutorily,
the state veterinarian falls under the purview of the DEC.
MS. RYAN, in response to comments, added that AS 03.25 defines
veterinarians and states that their duties are to be implemented
through the DEC. She said: "It gives us the authority to
embargo and detain animals and destroy animals; the state
veterinarian has incredible responsibility for ... the control
of animals and diseases that animals spread." She noted that AS
03.25.020 defines the duties of state veterinarians.
Number 1490
MS. HSIEH relayed:
As far as I'm aware, and the DOL, the only
[veterinarian] that is statutorily specified is here
in [AS] 03.25: it is in the Department of
Environmental Conservation. The state [veterinarian]
is very active and does a lot of things [pertaining]
to animal and public health, and the connections
between that. If, for some reason in the future, the
state [veterinarian] ... were to move to another
agency, I spoke with Debra Behr [Legislation &
Regulations Section of Department of Law] ... and she
said the revisors would just go through and change
[the] statutes [that] needed changing. This would not
be hindrance in any way.
MS. RYAN, in response to further comments, said: "The
responsibilities are to embargo and detain animals, and so while
maybe we only have one veterinarian and it would be great to
have more, that's their responsibility."
Number 1387
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 5,
to add to page 2, in proposed AS 03.55.100, a new subsection:
"(c) The Department of Environmental Conservation may adopt
regulations to implement this section." There being no
objection, Amendment 5 was adopted.
MS. GIANNINI - referring to the DOL's suggestion to delete from
page 2, line 19, "on which it wishes to take action" - opined
that if that language is removed, then the word "shall" on line
19 should be changed to "may", because this would prevent the
Department of Public Safety from having to investigate a
groundless complaint.
CHAIR McGUIRE and REPRESENTATIVE GRUENBERG relayed that the
committee would not be considering that particular suggestion by
the DOL.
MS. WRIGHT - referring to the DOL's suggestion to replace, "and
under whose custody the animal is to be sheltered and cared for"
with, "and a reference to their right to petition the court
under AS 03.55.130" on page 3 [lines 3-4] - remarked that this
is a good amendment and that the current language is an
oversight. She noted that in the past, when irate owners have
gone to where the abused animals were being sheltered, the
animals have had to be moved.
Number 1245
CHAIR McGUIRE labeled the foregoing suggestion by the DOL as
Amendment 6. [Although no formal motion was made] Chair McGuire
asked whether there were any objections to adopting Amendment 6.
There being none, Amendment 6 was adopted.
Number 1239
CHAIR McGUIRE made a motion to adopt Amendment 7, to replace
"every" with "a" on page 3, line 10. There being no objection,
Amendment 7 was adopted.
MS. WRIGHT - referring to the DOL's suggestion to replace,
"warranted by" with "reasonable under" on page 3, line 24 -
remarked that [the current language] appears to conflict in the
way it reads, and that [the suggestion] is fine.
Number 1203
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 8,
to replace "warranted by" with "reasonable under" on page 3,
line 24. There being no objection, Amendment 8 was adopted.
CHAIR McGUIRE referred to the DOL's suggestion to delete "a
herd, collection, or kennel [of]" from page 4, line 30.
MS. WRIGHT said that the sponsor would like to retain the word
"collection" because there are people known as "hoarders" who
collect large numbers of animals and neglect them. She
mentioned Carolyn Boughton as an example of someone who did this
in the Sterling area: 40-some-odd Bouviers were found partially
frozen into the ground. She opined that it is important to keep
the words "herd", "collection", and "kennel" because they are
different words for the same thing.
REPRESENTATIVE GRUENBERG opined that keeping that language in
the bill will make it harder to prosecute someone. The
important factor is that the person has 10 or more animals
regardless of what they are called.
MS. WRIGHT asked what happens if someone only has 2 or more
animals.
REPRESENTATIVE GRUENBERG replied, "Well, then you'd want to
change the number."
Number 1116
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 9,
to delete "a herd, collection, or kennel [of]" from page 4, line
30. There being no objection, Amendment 9 was adopted.
[There was a brief discussion regarding how best to word the
next amendment, which would address Ms. Wright's concern about
situations in which more than one animal is being abused.]
Number 1097
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 10,
to replace "10 or more animals" with "more than one animal".
There being no objection, Amendment 10 was adopted.
Number 1057
CHAIR McGUIRE, noting that a majority caucus was in progress and
that the committee no longer had a quorum, announced that HB 275
[as amended] would be held over.
ADJOURNMENT
Number 1042
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:15 p.m.
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