04/26/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB316 | |
| SB206 | |
| HB322 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 206 | TELECONFERENCED | |
| *+ | HB 316 | TELECONFERENCED | |
| = | HB 502 | ||
| + | HB 322 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 26, 2006
1:09 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Peggy Wilson
COMMITTEE CALENDAR
HOUSE BILL NO. 316
"An Act extending the termination date for the Board of
Governors of the Alaska Bar Association; and providing for an
effective date."
- HEARD AND HELD
CS FOR SENATE BILL NO. 206(FIN)
"An Act relating to contempt of court and to temporary detention
and identification of persons."
- HEARD AND HELD
HOUSE BILL NO. 322
"An Act relating to infants who are safely surrendered by a
parent shortly after birth."
- MOVED CSHB 322(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 502
"An Act amending the Alaska Stranded Gas Development Act to
eliminate the opportunity for judicial review of the findings
and determination of the commissioner of revenue on which are
based legislative review for a proposed contract for payments in
lieu of taxes and for the other purposes described in that Act;
and providing for an effective date."
- BILL HEARING POSTPONED TO 4/28/06
PREVIOUS COMMITTEE ACTION
BILL: HB 316
SHORT TITLE: EXTEND BOARD OF GOVERNORS ABA
SPONSOR(S): REPRESENTATIVE(S) STOLTZE, GRUENBERG
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
04/26/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 206
SHORT TITLE: DETENTION /I.D. OF PERSONS;CONTEMPT OF CT
SPONSOR(S): SENATOR(S) BUNDE
01/09/06 (S) PREFILE RELEASED 12/30/05
01/09/06 (S) READ THE FIRST TIME - REFERRALS
01/09/06 (S) JUD, FIN
02/16/06 (S) JUD AT 8:30 AM BUTROVICH 205
02/16/06 (S) Heard & Held
02/16/06 (S) MINUTE(JUD)
02/27/06 (S) JUD AT 8:30 AM BUTROVICH 205
02/27/06 (S) Scheduled But Not Heard
03/08/06 (S) JUD AT 8:30 AM BUTROVICH 205
03/08/06 (S) Heard & Held
03/08/06 (S) MINUTE(JUD)
03/15/06 (S) JUD AT 8:30 AM BUTROVICH 205
03/15/06 (S) Moved CSSB 206(JUD) Out of Committee
03/15/06 (S) MINUTE(JUD)
03/15/06 (S) JUD RPT CS 2DP 2AM NEW TITLE
03/15/06 (S) DP: SEEKINS, HUGGINS
03/15/06 (S) AM: FRENCH, GUESS
03/20/06 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/20/06 (S) Heard & Held
03/20/06 (S) MINUTE(FIN)
03/23/06 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/23/06 (S) Moved CSSB 206(FIN) Out of Committee
03/23/06 (S) MINUTE(FIN)
03/24/06 (S) FIN RPT CS 5DP 2NR NEW TITLE
03/24/06 (S) DP: WILKEN, GREEN, BUNDE, DYSON,
STEDMAN
03/24/06 (S) NR: HOFFMAN, OLSON
04/12/06 (S) TRANSMITTED TO (H)
04/12/06 (S) VERSION: CSSB 206(FIN)
04/13/06 (H) READ THE FIRST TIME - REFERRALS
04/13/06 (H) JUD, FIN
04/26/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 322
SHORT TITLE: SAFE SURRENDER OF BABIES
SPONSOR(S): REPRESENTATIVE(S) LEDOUX, GRUENBERG
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) HES, JUD
04/25/06 (H) HES AT 3:00 PM CAPITOL 106
04/25/06 (H) Moved CSHB 322(HES) Out of Committee
04/25/06 (H) MINUTE(HES)
04/26/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE BILL STOLTZE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking as one of the prime sponsors,
presented HB 316.
JONATHAN A. KATCHER, Esq., President
Board of Governors ("Board")
Alaska Bar Association (ABA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to a
question during discussion of HB 316.
STEVE VAN GOOR, Bar Counsel
Alaska Bar Association (ABA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 316.
JOHN TIEMESSEN, Esq., President-Elect
Board of Governors ("Board")
Alaska Bar Association (ABA)
Fairbanks, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 316.
DEBORAH O'REGAN, Executive Director
Board of Governors ("Board")
Alaska Bar Association (ABA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions and a comment during
discussion of HB 316.
SENATOR CON BUNDE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 206.
WALT MONEGAN, Chief
Anchorage Police Department (APD)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of SB 206.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of SB 206.
REPRESENTATIVE GABRIELLE LeDOUX
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as one of the prime sponsors of
HB 322.
CHRISTINE MARASIGAN, Staff
to Representative Gabrielle LeDoux
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 322 on behalf of
Representative LeDoux, one of the prime sponsors of HB 322.
JAN RUTHERDALE, Assistant Attorney General
Child Protection Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 322.
TAMMY SANDOVAL, Deputy Commissioner
Office of Children's Services (OCS)
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 322.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:09:10 PM. Representatives
McGuire, Coghill, Kott, and Anderson were present at the call to
order. Representatives Gara and Gruenberg arrived as the
meeting was in progress.
HB 316 - EXTEND BOARD OF GOVERNORS ABA
1:09:24 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 316, "An Act extending the termination date
for the Board of Governors of the Alaska Bar Association; and
providing for an effective date."
1:09:39 PM
REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, speaking
as one of the prime sponsors of HB 316, relayed that although
the Alaska Division of Legislative Audit recommended [an eight-
year] sunset extension for the Board of Governors ("Board") of
the Alaska Bar Association (ABA), the bill proposes a three-year
extension.
CHAIR McGUIRE asked Representative Stoltze whether there were
any other recommendations made by division that he'd considered
adopting.
REPRESENTATIVE STOLTZE said that the issue of disclosure was
considered, as was the issue of continuing legal education
(CLE), but he'd not made any changes to the bill.
1:12:18 PM
JONATHAN A. KATCHER, Esq., President, Board of Governors
("Board"), Alaska Bar Association (ABA), expressed the Board's
hope that HB 316 will pass with the maximum sunset that the
legislature will allow.
1:13:02 PM
STEVE VAN GOOR, Bar Counsel, Alaska Bar Association (ABA),
relayed that he acts as disciplinary counsel and general counsel
to the Board, and offered to answer questions.
CHAIR McGUIRE, in response to a question, relayed that the
Alaska Division of Legislative Audit, in a report released by
the Legislative Budget and Audit Committee, had recommended
improved disclosure of disciplinary actions against ABA members
[and perhaps a move away from self-regulation]. Self-regulation
is a privilege that comes with an added level of responsibility,
she remarked, and thus the disclosure recommendation should be
considered further.
MR. VAN GOOR clarified that the division's recommendation was
that the Board should consider developing a database of
disciplined lawyers that the public could access on the ABA's
web site. He explained that the ABA had already planned to do
that and hopes to have that available this summer or fall;
meanwhile, such information is being made available to those who
request it.
REPRESENTATIVE GARA asked Mr. Katcher whether he would be
amenable to changing the ABA's requirements so that those who do
not remain an inactive member of the ABA do not have to take the
bar exam again.
MR. KATCHER expressed disfavor with that concept, and opined
that the $180 annual fee is justified because ABA dues provide
the ABA with the resources it needs to serve the public.
Furthermore, doing so would essentially constitute a revision of
the rules promulgated by the courts, and would therefore more
appropriately fall within the province of the [Alaska] Supreme
Court, not the legislature.
REPRESENTATIVE GARA disagreed, and opined that there is an
aspect of the ABA that is very monopolistic and self-preserving,
citing as examples the ABA's refusal to allow a person to "waive
in" through passage of the multistate exam and the ABA's
protection of its [active] members through having their fees
subsidized by the fees of [inactive members].
REPRESENTATIVE GRUENBERG relayed that he is a member of the ABA
and therefore may have a potential conflict of interest.
CHAIR McGUIRE objected, thus requiring Representative Gruenberg
to participate.
REPRESENTATIVE GRUENBERG, speaking as one of the prime sponsors
of HB 316, said he is very pleased that the Board is
recommending a rule change regarding mandatory CLE, particularly
since he'd expressed an interest in doing it via legislation
should the ABA not take it up. Mandatory CLE will protect the
public and be good for ABA members as it will require them to
keep up with current law.
1:24:30 PM
JOHN TIEMESSEN, Esq., President-Elect, Board of Governors
("Board"), Alaska Bar Association (ABA), indicated that the ABA
recommends advancement of HB 316, adding that it will be good
for Alaskans. He then provided a bit of background on the ABA,
which serves and protects the citizens of Alaska through a board
of governors consisting of 12 members - 9 attorney members and 3
public members - and 17 staff and currently serves more than
2,800 active instate members. Noting that sunset [legislation]
gives the Board the opportunity to interact with the
legislature, he suggested that the Board should interact more
often - perhaps annually - with the legislature outside of the
context of sunset legislation.
CHAIR McGUIRE remarked that sunset legislation gives the
legislature the opportunity to review how well an entity is
performing its tasks and meeting its goals, and this is
important, particularly when it involves an entity that has been
delegated to perform a state function.
MR. TIEMESSEN agreed, reiterating that the ABA should have more
dialog and interaction with the legislature. He said that the
ABA appreciates the thoroughness of the division's audit and is
prepared to address the concerns raised in the ensuing report,
and mentioned that the Board's 2005 annual report is now out and
that the Board has just voted to publish the mandatory CLE rule.
With regard to the division's recommendation to develop a
database of disciplined lawyers and post it on the ABA's web
site, he said that the Board expects to have a problematic
software issue resolved by no later than the first quarter of
2007. He also mentioned that there is no fiscal note associated
with the ABA.
MR. TIEMESSEN said that the three things the ABA does are,
"discipline, admissions, and ... 'other,'" with the first two
items being the most important and not strictly membership-
directed functions but rather part of the core services provided
to the public; those functions serve to assure the Alaska
Supreme Court and the public that every applicant for the ABA is
ethically qualified and competent. The discipline process also
serves to recertify that every member of the ABA continues to be
worthy of public trust and the trust of the court system. Under
the heading of "other" fall member services such as CLE, the
"Alaska Law Review", the "Alaska Bar Rag", insurance benefits, a
lawyer referral service, a drug and alcohol referral service,
and various other services.
1:33:43 PM
DEBORAH O'REGAN, Executive Director, Board of Governors
("Board"), Alaska Bar Association (ABA), in response to a
question, said that the Board did receive the "blank" fiscal
note that was sent to it.
REPRESENTATIVE GARA again raised the issue of possibly allowing
applicants to "waive in" to the ABA if they pass the multistate
exam elsewhere. After commenting on the difficulty of passing
that exam, he relayed that he'd once been told by a member of
the Board that the reason such isn't allowed is, "We don't want
it to be so easy for people to come up here."
CHAIR McGUIRE noted that other states set a threshold score
which must be reached in order for an applicant to "waive in"
for that portion of the particular state's test. Furthermore,
some states only require the multistate exam. She opined that
the process of licensure should be fair to all, both those that
have already obtained licensure and those that are considering
applying for licensure. She added:
We want people to be competent when they practice in
this state, ... but we don't want to create a system
that simply allows for a monopoly and protects only
those who have the license to the detriment, I would
argue, not only of those who might want entry into it,
but to the public, because, after all, the public
benefits from a diversity of lawyers to choose from.
REPRESENTATIVE ANDERSON noted that an acquaintance of his had
passed the bar in Missouri but decided not to apply for entry
into the Alaska bar - even though he'd heard there were openings
in Alaska in a field of law he was interested in - because he
did not want to have to retake the multistate exam.
CHAIR McGUIRE clarified that the question is, how is asking an
applicant who has already passed the multistate to retake that
exam an indication of his/her competence, particularly given
that he/she is also being asked to answer a series of essay
questions demonstrating proficiency in Alaska law?
MR. VAN GOOR, after acknowledging the difficulty of passing the
multistate exam, said that the reason it is required for all
applicants has nothing to do with limiting the number of persons
who can practice law in Alaska; instead, the reason is
scientific, and testing expert Dr. Steven Kline (ph) from the
Rand Corporation was instrumental in designing a "sea-change" in
the exam in the early '80s. Prior to 1982, the Alaska exam
consisted of one day of California questions, a half day of
Alaska questions, and the multistate bar examination. Because
of the small size of the ABA back then, the California portion
of questions was sent back to California and graded by
California examiners, but there came a time when California
decided not to do that anymore. The model that Dr. Kline
subsequently came up with is basically the model used today, and
it consists of a day of Alaska questions, a half day of long
essay questions, a half day of short essay questions - questions
provided by the National Conference Of Bar Examiners (NCBE) -
and the multistate bar exam.
MR. VAN GOOR mentioned that at one time the multistate exam
score could be transferred from another state and used in the
ABA's exam computations. However, Dr. Kline pointed out that
there would be greater precision in scores when the universe of
people taking the multistate exam is the same universe of people
taking the essay exam. There are three different ways of
combining the multistate exam scores and the essay scores, but
the standard the ABA has been using for the last several years
is the "standard deviation method," which allows the ABA to
statistically compare the range of performance of the class of
those taking the multistate exam with the range of performance
of the same class of applicants taking the essay exam. Those
scores are combined and then divided by two, and those who have
a combined score of 140 or above pass the ABA. He predicted
that were Dr. Kline to testify on this issue he would say that
this method gives the Alaska bar exam a high degree of
credibility.
1:46:58 PM
CHAIR McGUIRE pointed out, however, that a similar model could
be achieved simply by taking a person's multistate exam score
and combining it with the essay exam score, and that ABA members
also take a multistate professional responsibility exam that is
taken independent of the other two exams, follows the member
into most other states, and is good for five years.
REPRESENTATIVE GARA recalled that when he'd proposed his bar
rule change regarding accepting multistate exam scores, Dr Kline
testified before the ABA, and although Dr. Kline did not respond
to any of his questions, what became clear during that hearing
was that the ABA could "take the last bar exam and figure out
whatever half the score was" and say that that's the acceptable
multistate exam score, and then, for those applicants who obtain
that score and "waive in," score them separately on the Alaska
portion so that their results don't contaminate the results of
those taking both parts of the exam, and finally require those
that waive in to have an Alaska score at least as high as half
the score of those who took both parts of the exam. It's not
like it can't be done, he opined, regardless of Dr. Kline's
numerous arguments that it couldn't. He said he and "Judge Tan"
and others have been quite displeased with the ABA's response on
this issue.
MR. TIEMESSEN, in response to comments and a question, pointed
out that there is not as yet universal reciprocity and that
there are limitations on the reciprocity rule as it relates to
the states that Alaska does have reciprocity with.
1:51:33 PM
MR. VAN GOOR, in response to another question, said that
although Alaska does have reciprocity with the state of
Washington, Washington doesn't require either the multistate bar
exam or the multistate professional responsibility exam, both of
which are required by the ABA. Instead, an Alaska applicant to
the Washington bar would have to take the Washington ethics
examination in order to qualify for reciprocity admission.
MS. O'REGAN, in response to a comment, clarified that Alaska has
reciprocity with about 30 states.
MR. VAN GOOR offered his belief that Alaska's reciprocity is
designed to be an accommodation for lawyers who, in these other
states, have done two important things: they've passed a
written bar examination in their state, and they've actively
practiced law during five of the last seven years. So while it
is true that reciprocity applicants from other states are not
tested specifically on Alaska law, it is also true that Alaska
attorneys seeking reciprocity in another state are not required
to demonstrate knowledge of that other state's law. He offered
his belief that the type of reciprocity rules that Alaska has
adopted reflect what he thinks will become more and more of a
national trend, that being that clients will be able to choose a
lawyer without regard to where the lawyer is living, and
predicted that the future might bring with it national
licensure.
MR. VAN GOOR, with regard to the question of how he would go
about ensuring that a lawyer from Washington seeking reciprocity
with Alaska demonstrates competency in Alaska law, pointed out
that the very first rule of the rule of professional conduct
requires a lawyer to be competent, which in turn requires the
necessary study, experience, [and] desire to become proficient
in a particular area of law; therefore, if a lawyer from
Washington desires reciprocity from Alaska, he/she will be held
to the same standard that a lawyer in Alaska will be held to
regarding knowledge of Alaska law. "I think reciprocity ...
basically reflects more or less a reality of interstate
practice, perhaps more in the Lower 48 than up here because we
have no bordering states, but I think historically that's the
reason that Alaska has moved along with reciprocity," he
concluded.
1:55:44 PM
CHAIR McGUIRE remarked, "I think historically the reason it has
is because your main job is to serve the lawyers that are
already licensed, and those lawyers want the ability to practice
in other states ...."
MR. VAN GOOR concurred.
REPRESENTATIVE GRUENBERG asked Ms. O'Regan to provide the
committee with a list of the states and other jurisdictions that
have reciprocity or partial reciprocity with Alaska.
MS. O'REGAN said she would do so, that such a list is already
available on the ABA's web site, and that there are no states
that have only partial reciprocity with Alaska.
CHAIR McGUIRE set HB 316 aside.
SB 206 - DETENTION /I.D. OF PERSONS;CONTEMPT OF CT
1:58:24 PM
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 206(FIN), "An Act relating to contempt of
court and to temporary detention and identification of persons."
1:59:44 PM
SENATOR CON BUNDE, Alaska State Legislature, sponsor, relayed
that the genesis of SB 206 was a recent gang-related shooting in
Dimond Center at which the police were unsuccessful in detaining
some of the participants because Alaska as yet doesn't have a
"material witness" statute. Specifically, SB 206 is an attempt
to provide the police with the tools to protect citizens without
interfering with their rights; SB 206 balances the need to
protect individual freedoms with the ability to prosecute
crimes, and will provide defendants with witnesses on their
behalf. He remarked that whether it is for the defense or for
the prosecution, material witnesses are crucial to trials;
unfortunately, material witnesses often refuse to cooperate with
law enforcement officials, significantly impeding their ability
to bring indictments or prosecute crimes.
SENATOR BUNDE relayed that Senate Bill 206 protects material
witnesses from unreasonable arrest or confinement while ensuring
the availability of crucial testimony, and does this via the
addition of a provision to AS 12.50 that would allow the police
to temporarily detain a person under circumstances that give the
officer reasonable suspicion of three things: one, the person
witnessed a crime or was in the vicinity of a crime such as
homicide or manslaughter; two, the person may have information
of material aid to the investigation of that crime; and three,
the temporary detention is of reasonable necessity to obtain or
verify the identification of the person, to obtain an account of
the crime, to protect a crime victim from imminent harm, or for
other exigent circumstances.
SENATOR BUNDE relayed that Walt Monegan, Anchorage Chief of
Police, had suggested that for those who's lifestyle takes them
to the border between legal and illegal activities, SB 206 could
provide an excuse for cooperating with the police without being
put in danger. Also, in a volatile situation, SB 206 could
provide a police officer with the means to keep such a situation
from escalating into the "immediate retribution" cycle sometimes
associated with gang activities. Under SB 206, a police officer
who has detained a person under the aforementioned circumstances
could photograph the person, serve him/her with a subpoena, and
take his/her fingerprints if the crime being investigated is
murder, attempted murder, or misconduct involving weapons in the
first degree.
SENATOR BUNDE explained that under SB 206, a person receiving
the aforementioned subpoena would be allowed to request of the
district attorney that the subpoena be withdrawn if the person
can provide valid, government-issued, photographic
identification (ID) prior to any grand jury proceedings. The
bill also makes it a class B misdemeanor to refuse or resist the
taking of a photograph or fingerprints, contains provisions
outlining how such photographs or fingerprints may be [used] and
when they shall be destroyed, and increases the penalty to
contempt of court for failing to honor a subpoena, refusing to
answer as a witness in connection with a felony crime, or
refusing to appear before a grand jury.
SENATOR BUNDE, in conclusion, offered his belief that SB 206 has
achieved a balance that will provide law enforcement with a bit
more leeway to investigate some of the violent crimes that are
becoming far too prevalent, while also protecting the rights of
citizens.
2:06:19 PM
REPRESENTATIVE GARA said he understands the concerns raised by
the aforementioned shooting - "you see witnesses there, they run
away, you never find them again" - but there are parts of the
bill that he thinks are unnecessary for the purpose of obtaining
the addresses of such witnesses. For example, he said he
doesn't like the provision allowing the police to detain someone
just because they had reasonable [suspicion] that the person was
in the vicinity, because that language seems to be too broad.
SENATOR BUNDE acknowledged that eyewitnesses are sometimes the
most unreliable of witnesses because of the fact that people are
very selective in what they perceive. Therefore, a police
officer must use his/her judgment with regard to the likelihood
that a person might have heard or seen something but not recall
it or its significance until questioned.
REPRESENTATIVE GARA observed that when used together, the terms
"reasonable suspicion", "in the vicinity", and "may have
information" mean everybody that's in the vicinity, particularly
given that the term "may have" is not setting a very high
standard. Furthermore, the bill appears to allow the detention
of citizens without making any distinction between those that
are innocent and those that are guilty. He suggested that the
goal of the bill to address gang-related violence would still be
achieved if the bill were to instead use the standard of
probable cause.
SENATOR BUNDE said that if a witness provides law enforcement
with a "photo ID," detention won't be necessary. However, if a
witness won't provide a photo ID, a police officer can retain
the witness long enough to either fingerprint or photograph
him/her.
REPRESENTATIVE GARA suggested substituting the words,
"reasonable suspicion", with the words, "probable cause", [on
page 2, line 5]. He then asked whether the subpoena referenced
in SB 206 would be used to force a witness to come in [to the
police station] and get photographed or fingerprinted.
SENATOR BUNDE said no.
2:12:04 PM
REPRESENTATIVE GRUENBERG indicated that he would prefer that the
language being added via proposed AS 09.50.020(a) not be limited
to just felony crimes; that the term "temporarily detain" - on
page 2 [line 4] - be defined, as should the term, "temporary
detention" on page 2, line 14; and that the term, "in the
vicinity" on page 2, line 9, should instead say, "in the
immediate vicinity".
SENATOR BUNDE offered his belief that [a definition of the term]
"temporary" is part of case law.
REPRESENTATIVE GRUENBERG suggested that a definition of that
term should be inserted into statute. He then characterized the
term, "or for other exigent circumstances" on page 2, line 16,
as "a real barn door."
CHAIR McGUIRE concurred.
REPRESENTATIVE GRUENBERG also suggested that proposed AS
12.50.201(b)(3)(A) lists too few crimes for which a person could
be required to provide fingerprints, and so perhaps that
provision should be broadened, though the question of which
other crimes it should include must also be considered. He then
referred to language on page 3, lines 4-5, and suggested that
the phrase, "or may move the court to quash the subpoena" be
added after the phrase, "may request the district attorney to
withdraw the subpoena".
2:18:17 PM
WALT MONEGAN, Chief, Anchorage Police Department (APD),
Municipality of Anchorage (MOA), with regard to the phrase, "in
the vicinity", explained that if someone is determined to flee
the scene of a crime, he/she can easily get a pretty good
distance away from the "immediate" vicinity in just three to
four minutes, and so the APD would like to be able to stop
someone who was seen in the area or is seen to be running away
from the area or is seen driving away from the area. He
acknowledged, however, that if a crime occurs on the "East side
of town," the police shouldn't be looking to detain someone on
the "West side of town," because that wouldn't be reasonable.
MR. MONEGAN, with regard to the suggestion that "reasonable
suspicion" be replaced with "probable cause", pointed out that
probable cause is the level of proof needed to make an arrest,
whereas reasonable suspicion is the level of proof required for
a stop. He then referred to page 3, line 11, which says that
the photographs or fingerprints "must be destroyed upon the
earlier of the following occurrences:", and said that he would
like that language changed to instead say, "unless the
investigation indicates the person is a suspect in the case, the
[photographs] and fingerprints must be destroyed upon the
earlier of the following occurrences:". Such a change would
ensure that law enforcement isn't destroying evidence pertaining
to a guilty witness.
MR. MONEGAN, referring to language in proposed AS 12.50.201(b),
remarked on the fact that the police can't, and shouldn't be
able to, compel someone to give a statement, and that the
biggest hurdle that the APD faces is that the information that's
"locked up in some of the individuals" that the APD has made
contact with may be the only information with which to get a
case before the grand jury. He said that the APD appreciates
the legislature's efforts on this issue, adding that without the
bill, communities as a whole are paying too high a price.
REPRESENTATIVE GARA asked Mr. Monegan how long he anticipates
the proposed detention period being.
MR. MONEGAN said just a few minutes because most police officers
carry a digital camera and kits that allow for the taking of
fingerprints at the scene.
REPRESENTATIVE GARA said he does not want "temporarily detained"
to mean taking someone to the police station, and asked whether
Mr. Monegan would be amenable to a change stipulating that the
temporary detention would be limited to the location where the
person was found.
MR. MONEGAN [seemed to suggest adding] the words, "in the
immediate vicinity". He explained that what happens as a matter
of course, even for cooperative witnesses, is that they are
separated [from each other] by a little bit of distance, but
such could still be done at the immediate scene.
SENATOR BUNDE noted that the language on page 2, line 20,
already stipulates that the photographs may be taken as long as
it can be done without unreasonably delaying or removing the
person from the vicinity, thus implying that taking the person's
photograph would indeed take place at the police car.
2:25:46 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
pointed out that the language on page 2, line 30, stipulates the
same thing for the taking of fingerprints. In response to a
question, she offered her understanding that most states have
statutory provisions that allow for the detention of material
witnesses, and that SB 206 is a very mild version of such
provisions.
MR. MONEGAN, in response to questions, explained that should the
need arise, a police officer could simply call for another unit
to come and bring any necessary photography or fingerprinting
equipment to the site, though he acknowledged that such might
not be possible in some of the more rural areas of the state.
And although it would be hoped that in such areas, law
enforcement officers would have all the equipment necessary to
photograph or fingerprint a witness [that did not provide a
photo ID], it might be good idea, he indicated, to stipulate in
the bill that if a person has to be taken back to the [police
station] to get photographed or fingerprinted, that the
necessity for doing so must be articulated by the officer.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SB 206.
SENATOR BUNDE opined instead that law enforcement officers will
simply have to have the necessary equipment with them if they
are not to unreasonably delay a person.
2:29:36 PM
REPRESENTATIVE GARA suggested substituting the words,
"reasonable suspicion", with the words, "probable cause", [on
page 2, line 5]; taking out proposed AS 12.50.201(a)(1)(B); and
replacing "may have" on page 2, line 12, with "has". He said he
doesn't like the language allowing a person to be detained
simply for being in the vicinity, because that language is too
broad and eliminates the need for probable cause that the person
really is a witness.
MR. MONEGAN referred to the 1982 case involving Charles Meach
and his shooting to death four teenagers in Russian Jack Springs
Park, and said that that case was solved because a witness
mentioned seeing a brown van speeding away from the area. When
that van was intercepted, it was determined that the driver had
nothing to do with the shooting but the police took his personal
information; later when the police were stymied with the case,
they went back and spoke with the driver who then recounted that
while walking through the park that night he'd spotted a bicycle
laying in the brush, and he admitted that he been thinking about
taking it but had instead fled the scene when he heard shots
fired. With the information the driver provided about the
bicycle, the police were subsequently able to trace it back to
Charles Meach who confessed to killing the four teenagers. So
even though the driver of the van was never at the place where
the teenagers were being killed, and was stopped blocks away
from where the shooting actually occurred, he was able to
provide the police with the needed piece of information that
allowed them to solve the case.
MR. MONEGAN pointed out that because nothing like SB 206 was in
place at that time, if the driver of the van had instead been
stopped while walking, he could have refused to provide the
police with his ID and then the police wouldn't have been able
to contact him again. He again pointed out that the standard of
reasonable suspicion is used to stop a person, whereas the
standard of probable cause is used to arrest someone - the
latter being much more severe than just stopping someone to ask
whether he/she had heard or seen anything.
REPRESENTATIVE GARA said he would still prefer the standard to
be probable cause, and reiterated that he would also prefer to
have page 2, line 12, say, "has information" instead of "may
have information".
MR. MONEGAN warned that if the person being stopped happened to
be a "guilty witness," then the information obtained from
him/her could be quashed because law enforcement wasn't able to
meet the standard of probable cause in stopping the person to
begin with.
REPRESENTATIVE GARA again reiterated his preferences, adding
that he is uncomfortable allowing the police to stop someone on
a hunch.
2:36:44 PM
REPRESENTATIVE GRUENBERG opined that law enforcement should be
able to stop a person and ask for information with far less
cause than that which is needed to arrest a person, and all that
is being asked for via the use of the bill's current language is
the ability to detain someone for questioning, otherwise
evidence will be lost, the people will leave the scene, and
memories will fade. He mentioned that he has participated in
ride-alongs with the police and therefore knows that people, at
least those from his part of town, can fade into the woodwork
fast.
REPRESENTATIVE GARA said the lower standard is a problem because
it shouldn't be easy to stop and detain an innocent person.
REPRESENTATIVE GRUENBERG disagreed, pointing out that such a
person is not being accused of a crime or arrested - he/she is
just being questioned as a witness - and therefore requiring law
enforcement to meet the higher standard of probable cause is not
justified.
REPRESENTATIVE GARA offered his belief that if a person was at
the scene of a crime, then law enforcement would have probable
cause and therefore could detain that person for questioning.
MR. MONEGAN remarked:
Probable cause being the high standard that it is, if
I came up and said, "Les, I think you saw something
here," and you wanted to be obstinate about it, you
would say, "Prove it." And I can't, because I wasn't
there when the event happened; I arrived three or four
minutes later as ... an emergency responder, and [so]
when I get there ... you could say, "I just heard the
shots - I came over like ... everybody else to see
what was going on - I don't know anything." The fact
that they're standing there doesn't necessarily mean
... anything, ... [and so] the reasonable standard
helps us not have that argument. It just [allows an
officer to say], "Look all I need is some information
- your name, your phone number, and did you see
anything," and they can say, "I'll give you my name
and my number, but I didn't see anything," and that's
fine. ... [The person can't just] turn around and say:
"No; ... I know the law, it says probable cause, which
means you have to prove that I was here." ...
2:41:08 PM
MS. CARPENETI said that she would be very concerned about
adopting a probable cause standard. The courts have upheld law
enforcement's ability to, with reasonable suspicion, temporarily
detain a person to ask for his/her identification so that law
enforcement can follow up on issues later. "I think making [it]
a probable cause standard would ... confuse people and make it
more difficult for the police to investigate a crime," she
added.
REPRESENTATIVE GARA said:
That's just not how probable cause works, though. You
don't have to be right that the person was a witness.
Probable cause means that you had probable cause to
believe that the person's a witness, even if you were
wrong. So if the witness says to you, "I wasn't here
- prove it," that has nothing to do [with] whether you
had probable cause to stop the person. The question
is, did you as an officer have a strong belief that
the person was there, even though you might be wrong
later. So it's not a defense when the person says to
you, "I wasn't here", to a probable cause standard.
And I think there should be a higher standard when
you're dealing with innocent people than when you're
dealing with people who've done something wrong.
SENATOR BUNDE indicated that if it were possible to know who is
guilty and who is innocent at the outset, such a standard might
be useful. He pointed out that the standard of reasonable
suspicion is currently used, for example, when an officer sees a
car changing lanes ineptly; the officer can stop the car to see
whether the driver is drunk. He said he can envision a
situation in which important witness testimony gets thrown out
of court because in obtaining that testimony the standard of
probable cause wasn't met.
CHAIR McGUIRE relayed that SB 206 would be set aside to allow
members time to consider possible amendments.
SENATOR BUNDE said he would like to see Mr. Monegan's suggested
change considered as well.
[CSSB 206(FIN) was set aside.]
HB 322 - SAFE SURRENDER OF BABIES
2:45:23 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 322, "An Act relating to infants who are
safely surrendered by a parent shortly after birth." [Before
the committee was CSHB 322(HES).]
The committee took an at-ease from 2:46 p.m. to 2:49 p.m.
2:49:46 PM
REPRESENTATIVE GABRIELLE LeDOUX, Alaska State Legislature,
speaking as one of prime sponsors of HB 322, relayed that a
member of her staff would be presenting the bill.
2:50:31 PM
CHRISTINE MARASIGAN, Staff to Representative Gabrielle LeDoux,
Alaska State Legislature, relayed on behalf of Representative
LeDoux, one of the prime sponsors of HB 322, that this bill has
the potential to save the lives of infants, and that 46 other
states have enacted similar legislation - with Alaska, Hawaii,
Nebraska, and Vermont being the only states that have yet to do
so. The first such law was adopted in Texas in 1999 after 13
infants were found abandoned within a 10-month period, and now
such laws are sometimes known either as "Baby Moses laws" or
"safe haven laws". She then spoke briefly of the changes that
were incorporated into CSHB 322(HES), and relayed that the
intent of the bill is to deter women - typically young and
unmarried women who are concealing their pregnancies and giving
birth in private - from simply disposing of their newborn
babies. Specifically, HB 322 would save an infant in imminent
danger and enable a parent to avoid prosecution if she leaves an
infant at a designated safe location.
CHAIR McGUIRE, after ascertaining that no one wished to testify,
closed public testimony on HB 322.
REPRESENTATIVE ANDERSON moved to report CSHB 322(HES) out of
committee [with individual recommendations].
2:52:43 PM
REPRESENTATIVE LeDOUX drew attention to the fiscal note provided
by the Department of Health and Social Services (DHSS), Office
of Children's Services (OCS).
CHAIR McGUIRE said she wants HB 322 to move from committee
without that fiscal note.
REPRESENTATIVE GRUENBERG, speaking as one of the prime sponsors
of HB 322, referred to the age limit of 8 days old - located on
page 1, lines 10-11, and page 3, line 19 - and said that he
would instead prefer to have an age limit of 31 days old.
REPRESENTATIVE LeDOUX pointed out that HB 322 is geared towards
young, single women who hide their pregnancy and deliver their
baby in private with the intention of getting rid of it
immediately; "we want that person to know that ... she doesn't
have to leave [the baby] ... in a trash can somewhere" but can
instead leave it at a safe location. She remarked that
abandoning an infant who is 3 days old or 8 days old is
different than abandoning a baby that is 31 days old because by
the time a baby reaches the age of 31 days, then the mother
"really has the baby" and hadn't immediately sought to get rid
of it.
REPRESENTATIVE GRUENBERG said he would prefer to err on the side
of letting a woman leave a baby at a safe location even if the
baby is a little older.
REPRESENTATIVE LeDOUX said she want to try to ensure that
infants get taken to a safe haven immediately, before there is
the possibility that they will be abused or neglected. She then
noted that a representative from the Office of Children's
Services (OCS) has just relayed to her that the OCS would be
amenable to a 30-day age limit.
2:56:03 PM
JAN RUTHERDALE, Assistant Attorney General, Child Protection
Section, Civil Division (Juneau), Department of Law (DOL),
relayed that although the DOL doesn't have any legal problems
with the concept of HB 322, she would like to work with the
drafter on some structural issues.
REPRESENTATIVE GARA suggested that the DOL bring any amendments
pertaining to structural issues to the bill's first committee
hearing in the Senate.
2:58:10 PM
TAMMY SANDOVAL, Deputy Commissioner, Office of Children's
Services (OCS), Department of Health and Social Services (DHSS),
mentioned that the OCS had merely suggested an age limit of 21
days as some sort of middle ground, since some states have a
younger age limit and some states had an older age limit. She
offered her belief that there haven't been any abandonment cases
in Alaska to use as an example, and indicated that the OCS isn't
committed to a particular age limit.
CHAIR McGUIRE reiterated her intent to not have the DHSS's
fiscal note move with the bill, because the public education
campaign proposed in the fiscal note is an optional program
rather than one being mandated by the bill. She suggested that
with the DHSS's fiscal note, the bill would have to be heard in
the House Finance Committee, thus lessening its chances of
passing this year; therefore, she will be requesting that the
motion to move the bill from committee specify that the bill
would be moving forward without the DHSS's fiscal note.
MS. SANDOVAL said she will look for ways to educate the
community regarding this bill, but relayed her hope that not
having the funds referenced in the fiscal note won't result in
the OCS being held responsible for anything bad that happens to
infants that are abandoned in unsafe locations.
CHAIR McGUIRE, remarking on the complex nature of fiscal notes,
reiterated her concern that attaching the aforementioned fiscal
note will delay the bill to the point where it doesn't have time
to pass.
MS. SANDOVAL acknowledged that point.
CHAIR McGUIRE suggested that perhaps an indeterminate fiscal
note might be more appropriate.
REPRESENTATIVE GARA again suggested that any amendments be
offered in the Senate, including any proposed changes to the age
limit because he is not comfortable just picking a number.
MS. MARASIGAN, referring to an earlier comment, clarified that
there have been infants found abandoned in Alaska, and noted
that she now has several newspaper articles detailing such
cases.
CHAIR McGUIRE surmised that any media coverage of the bill
passing will alert the public to some degree.
3:05:51 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt Amendment 1],
to change page 1, line 10, and page 3, line 19, from "eight
days" to "21 days".
REPRESENTATIVE GARA pointed out that the OCS was merely picking
a number when it suggested an age limit of 21 days.
REPRESENTATIVE GRUENBERG opined that 8 days of age was not a
sufficient age limit.
REPRESENTATIVE LeDOUX acknowledged that at one point there had
been discussion of perhaps having an age limit of 3 days but the
House Health, Education and Social Services Standing Committee
instead chose an age limit of 8 days.
REPRESENTATIVE GRUENBERG acknowledged that the original version
of HB 322 had an age limit of 12 months, but again offered his
belief that an age limit of 8 days is not sufficient.
The committee took an at-ease from 3:08 p.m. to 3:09 p.m.
REPRESENTATIVE GARA removed his objection to Amendment 1.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1. There being none, Amendment 1 was adopted.
3:09:43 PM
REPRESENTATIVE KOTT made a motion that the committee authorize
the chair to adopt a zero fiscal note from the DHSS. He
surmised that [the OCS] ought to be able to do a lot of public
education through public service announcements (PSAs) and
posters in healthcare providers' offices.
CHAIR McGUIRE, after ascertaining that there were no objections,
announced that the motion to adopt a zero fiscal note was
adopted.
3:11:14 PM
REPRESENTATIVE ANDERSON started to make a motion to report the
bill, as amended, from committee.
REPRESENTATIVE GRUENBERG interrupted the motion to note that
according to a chart in members' packets, some states' laws
specify that either a parent or a parent's agent can surrender
an infant. He asked the sponsor whether she would like to
include similar language in HB 322.
REPRESENTATIVE LeDOUX said no.
REPRESENTATIVE ANDERSON moved to report CSHB 322(HES), as
amended, out of committee with individual recommendations and
the accompanying zero fiscal note as authorized by the House
Judiciary Standing Committee. There being no objection,
CSHB 322(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
3:12:16 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:12 p.m.
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