04/13/2017 05:30 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB204 | |
| HB79 | |
| SB55 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 204 | TELECONFERENCED | |
| + | SB 55 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 79 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 13, 2017
5:38 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Zach Fansler, Vice Chair
Representative Jonathan Kreiss-Tomkins
Representative Gabrielle LeDoux
Representative David Eastman
Representative Chuck Kopp
Representative Lora Reinbold
MEMBERS ABSENT
Representative Charisse Millett (alternate)
Representative Louise Stutes (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 204
"An Act relating to overtaking and passing certain stationary
vehicles."
- MOVED CSHB 204(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 79
"An Act relating to workers' compensation; repealing the second
injury fund upon satisfaction of claims; relating to service
fees and civil penalties for the workers' safety programs and
the workers' compensation program; relating to the liability of
specified officers and members of specified business entities
for payment of workers' compensation benefits and civil
penalties; relating to civil penalties for underinsuring or
failing to insure or provide security for workers' compensation
liability; relating to preauthorization and timely payment for
medical treatment and services provided to injured employees;
relating to incorporation of reference materials in workers'
compensation regulations; relating to proceedings before the
Workers' Compensation Board; providing for methods of payment
for workers' compensation benefits; relating to the workers'
compensation benefits guaranty fund authority to claim a lien;
excluding independent contractors from workers' compensation
coverage; establishing the circumstances under which certain
nonemployee executive corporate officers and members of limited
liability companies may obtain workers' compensation coverage;
relating to the duties of injured employees to report income or
work; relating to misclassification of employees and deceptive
leasing; defining 'employee'; relating to the Workers'
Compensation Board's approval of attorney fees in a settlement
agreement; and providing for an effective date."
- MOVED CSHB 79(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 55(FIN)
"An Act relating to criminal law and procedure; relating to
controlled substances; relating to sentencing; relating to
protective orders; relating to restitution; relating to the
period of probation; relating to revocation, termination,
suspension, cancellation, or restoration of a driver's license;
relating to parole; relating to the duties of the Department of
Corrections and the Department of Health and Social Services;
and providing for an effective date."
- MOVED CSSB 55(FIN) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 204
SHORT TITLE: OVERTAKING/PASSING DOT VEHICLES
SPONSOR(s): REPRESENTATIVE(s) KAWASAKI
03/29/17 (H) READ THE FIRST TIME - REFERRALS
03/29/17 (H) TRA, JUD
04/06/17 (H) TRA AT 1:00 PM BARNES 124
04/06/17 (H) Moved HB 204 Out of Committee
04/06/17 (H) MINUTE(TRA)
04/07/17 (H) TRA RPT 2DP 5AM
04/07/17 (H) DP: KOPP, DRUMMOND
04/07/17 (H) AM: CLAMAN, SULLIVAN-LEONARD, NEUMAN,
WOOL, STUTES
04/13/17 (H) JUD AT 5:30 PM GRUENBERG 120
BILL: HB 79
SHORT TITLE: OMNIBUS WORKERS' COMPENSATION
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/25/17 (H) READ THE FIRST TIME - REFERRALS
01/25/17 (H) L&C, JUD, FIN
02/20/17 (H) L&C AT 3:15 PM BARNES 124
02/20/17 (H) Heard & Held
02/20/17 (H) MINUTE(L&C)
03/01/17 (H) L&C AT 3:15 PM BARNES 124
03/01/17 (H) <Bill Hearing Canceled>
03/06/17 (H) L&C AT 3:15 PM BARNES 124
03/06/17 (H) Heard & Held
03/06/17 (H) MINUTE(L&C)
03/08/17 (H) L&C AT 3:15 PM BARNES 124
03/08/17 (H) <Bill Hearing Canceled>
03/15/17 (H) L&C AT 3:15 PM BARNES 124
03/15/17 (H) -- MEETING CANCELED --
03/17/17 (H) L&C AT 3:15 PM CAPITOL 106
03/17/17 (H) <Bill Hearing Canceled>
03/20/17 (H) L&C AT 3:15 PM BARNES 124
03/20/17 (H) Heard & Held
03/20/17 (H) MINUTE(L&C)
03/22/17 (H) L&C AT 3:15 PM BARNES 124
03/22/17 (H) Moved CSHB 79(L&C) Out of Committee
03/22/17 (H) MINUTE(L&C)
03/24/17 (H) L&C RPT CS(L&C) NT 3DP 1DNP 1NR 2AM
03/24/17 (H) DP: JOSEPHSON, STUTES, KITO
03/24/17 (H) DNP: KNOPP
03/24/17 (H) NR: WOOL
03/24/17 (H) AM: SULLIVAN-LEONARD, BIRCH
03/31/17 (H) JUD AT 1:00 PM GRUENBERG 120
03/31/17 (H) Heard & Held
03/31/17 (H) MINUTE(JUD)
04/05/17 (H) JUD AT 1:00 PM GRUENBERG 120
04/05/17 (H) Heard & Held
04/05/17 (H) MINUTE(JUD)
04/13/17 (H) JUD AT 5:30 PM GRUENBERG 120
BILL: SB 55
SHORT TITLE: OMNIBUS CRIME/CORRECTIONS
SPONSOR(s): JUDICIARY
02/10/17 (S) READ THE FIRST TIME - REFERRALS
02/10/17 (S) JUD, FIN
02/15/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/15/17 (S) Heard & Held
02/15/17 (S) MINUTE(JUD)
03/15/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/15/17 (S) -- MEETING CANCELED --
03/17/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/17/17 (S) Scheduled but Not Heard
03/20/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/20/17 (S) Moved CSSB 55(JUD) Out of Committee
03/20/17 (S) MINUTE(JUD)
03/22/17 (S) JUD RPT CS 5DP NEW TITLE
03/22/17 (S) DP: COGHILL, WIELECHOWSKI, COSTELLO,
MEYER, KELLY
03/28/17 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/28/17 (S) Heard & Held
03/28/17 (S) MINUTE(FIN)
03/28/17 (S) FIN AT 1:30 PM SENATE FINANCE 532
03/28/17 (S) Heard & Held
03/28/17 (S) MINUTE(FIN)
03/31/17 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/31/17 (S) Moved CSSB 55(FIN) Out of Committee
03/31/17 (S) MINUTE(FIN)
03/31/17 (S) FIN AT 1:30 PM SENATE FINANCE 532
03/31/17 (S) -- MEETING CANCELED --
04/03/17 (S) FIN RPT CS 3DP 3NR NEW TITLE
04/03/17 (S) DP: HOFFMAN, MACKINNON, VON IMHOF
04/03/17 (S) NR: DUNLEAVY, MICCICHE, OLSON
04/03/17 (S) TRANSMITTED TO (H)
04/03/17 (S) VERSION: CSSB 55(FIN)
04/05/17 (H) READ THE FIRST TIME - REFERRALS
04/05/17 (H) JUD
04/12/17 (H) JUD WAIVED PUBLIC HEARING NOTICE, RULE
23(A) UC
04/13/17 (H) JUD AT 5:30 PM GRUENBERG 120
WITNESS REGISTER
REPRESENTATIVE SCOTT KAWASAKI
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 204 as prime sponsor.
MERCEDES COLBERT, Staff
Representative Scott Kawasaki
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 204, answered
questions.
MIKE COFFEY, Director
South Coast Region
Statewide Maintenance and Statewide Operation Director
Department of Transportation & Public Facilities (DOTPF)
Juneau, Alaska
POSITION STATEMENT: During the hearing of CSHB 204, offered
testimony and answered questions.
CAPTAIN DAN LOWDEN
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of CSHB 204, answered
questions.
MARI MARX, Director
Division of Workers' Compensation
Department of Labor & Workforce Development (DLWD)
Juneau, Alaska
POSITION STATEMENT: During the hearing of CSHB 79, presented
Amendment 7.
KIMBER RODGERS, Assistant Attorney General
Labor and State Affairs Section
Department of Law
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 79, offered a
sectional analysis of Amendment 7.
COMMISSIONER HEIDI DRYGAS
Department of Labor & Workforce Development
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 79, discussed
Amendment 9.
DANNY DeWITT, State Director
National Federation of Independent Business (NFIB)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 79, discussed
Amendment 9.
SENATOR JOHN COGHILL
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 55, on behalf of the Senate
Judiciary Committee, Senator Coghill chair.
JORDAN SHILLING, Staff
Senator John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of SB 55, presented a
sectional analysis.
NANCY MEADE, General Counsel
Administrative Staff
Office of the Administrative Director
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 55, answered
questions.
ACTION NARRATIVE
5:38:50 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 5:38 p.m. Representatives Claman, Fansler,
Eastman, Reinbold, Kopp, and Kreiss-Tomkins were present at the
call to order. Representative LeDoux arrived as the meeting was
in progress.
HB 204-OVERTAKING/PASSING DOT VEHICLES
5:39:25 PM
CHAIR CLAMAN announced that the first order of business would be
HOUSE BILL NO. 204, "An Act relating to overtaking and passing
certain stationary vehicles."
5:39:47 PM
REPRESENTATIVE SCOTT KAWASAKI, Alaska State Legislature, advised
that under current statute, AS 28.35.185, commonly known as the
"Move Over Law," drivers are required to move to the nearest
lane and slow down when approaching [stationary] vehicles, such
as fire, law enforcement and emergency vehicles, animal control
vehicles, and tow trucks in the act of loading a vehicle. This
bill includes, within those certain vehicles, the Department of
Transportation (DOT) vehicles when using their flashing lights,
and with workers performing road maintenance or road work. In
the event a driver approaches one of these vehicles, with their
lights flashing, on the highway with two or more lanes traveling
in the same direction, the driver would vacate that lane and
move safely into the closest lane. In the event there were
fewer than two lanes traveling in the same direction, the driver
would slow down to a reasonable speed.
REPRESENTATIVE KAWASAKI reminded the committee that in 2012,
Robert Hammel, a DOT employee, was tragically struck and killed
while laying down traffic cones to alert drivers of a stranded
vehicle on the side of the roadway at Mile 88 on the Seward
Highway. He related that Mr. Hammel's name was incorporated
into the committee substitute for HB 204.
REPRESENTATIVE KAWASAKI advised that the penalty under this
statute would be considered a "failure to move over," and is a
class A misdemeanor if personal injury resulted in a person's
failure to vacate a lane or slow down. In the event a "failure
to move over" did not result in personal injury it is punishable
by a $150 traffic infraction with two points assessed against
the person's driver's license. He offered that this statute has
been in effect since September 2005, and under this statute for
the Department of Transportation & Public Facilities (DOT) there
were 23 violations in 2016; 14 violations in 2015; and 53
violations in 2014. In March 2017, two South Carolina
Department of Transportation safety workers were killed while
working, and there is legislation across the nation dealing
specifically with this issue, he advised.
5:44:24 PM
REPRESENTATIVE EASTMAN noted that the language deals solely with
stationary vehicles, and asked whether there had been a
discussion regarding vehicles moving at a slow speed performing
some type of road work.
REPRESENTATIVE KAWASAKI answered that issue was not specifically
addressed in this bill. He referred to slow moving vehicles
denoted with a "slow moving" vehicle sign, and said he was
unsure whether that was found in this statute.
5:45:12 PM
REPRESENTATIVE FANSLER moved to adopt CSHB 204, Version 30-
LS0685\D, Martin, 4/8/17, as the working document. There being
no objection, Version D was before the committee.
5:45:38 PM
MERCEDES COLBERT, Staff, Representative Scott Kawasaki, Alaska
State Legislature, responded to Representative Eastman that
there had been discussions with other contractors and DOT
representatives, and found there currently is not a statute in
place for slow moving vehicles, and she deferred to the
Department of Law and the Alaska State Troopers online.
REPRESENTATIVE EASTMAN surmised that currently there is no
penalty in statute.
REPRESENTATIVE KAWASAKI reiterated that he did not include
language regarding slow moving vehicles within this bill.
5:47:04 PM
REPRESENTATIVE KOPP said he strongly supports this bill, and
agreed that this section of title 28 deals solely with
stationary emergency vehicles. He described that the issue of
slow moving vehicles would require an extensive re-write because
if a driver comes upon a slow moving emergency vehicle, "we
don't know" which way it will travel. He commented that the law
should not direct a person to try to go around the emergency
vehicle because it may be more appropriate to move over and
stop, such as with oncoming emergency vehicles currently. It is
a different situation, he said, and should be addressed
separately in the law.
5:48:01 PM
REPRESENTATIVE EASTMAN asked whether there are situations
wherein a DOT vehicle would stop to render aid to an emergency
situation.
REPRESENTATIVE KAWASAKI answered that Mr. Hammel was in that
particular type of situation, and described that at the time a
state trooper was rendering aid to a vehicle stopped on the side
of the road, and he was called to a case 10 miles away on the
Seward Highway. Mr. Hammel, in working alongside law
enforcement, placed the traffic cones to ensure the stranded
vehicle did not become a further hazard for other drivers when
he was struck and killed, he related.
5:49:20 PM
REPRESENTATIVE EASTMAN opined that it was not immediately
apparent that someone not performing maintenance on the road
would be covered.
REPRESENTATIVE KAWASAKI replied that the language was accurate
because if the vehicle was in the act of performing maintenance
or road service work, that person would be covered.
CHAIR CLAMAN opened public hearing on CSHB 204.
5:50:16 PM
MIKE COFFEY, Director, South Coast Region, Statewide Maintenance
and Statewide Operation Director, Department of Transportation &
Public Facilities (DOTPF), advised he has been employed with the
Department of Transportation & Public Facilities for 35 years,
and approximately 20 years of that time involved maintenance and
operations in all three regions across the state. He
highlighted that every day Alaska DOT maintenance and operations
personnel serve in harm's way while working on the state's
highways. Throughout the state, he said, people often ignore
traffic work zones, they do not obey flaggers' order causing
flaggers to take evasive actions and numerous times have had to
jump in a ditch to get out of the way of errant vehicles.
Maintenance and operations folks perform "mobile operations"
such as filling a pot hole, and he described that the vehicle
pulls alongside the road with flashing lights, the maintenance
crew gets out, quickly fills the pot hole, and moves on. Also,
crews will lay out cones ahead of the workers establishing a
work zone, and without the work zone set up these are situations
where the department's employees are most vulnerable. He
pointed out that nationally, more than 35,000 people are injured
in work zones every year, and approximately 700 people,
including 130 maintenance and operations and construction
workers, are killed in work zones every year. The Alaska
Department of Transportation & Public Facilities supports CSHB
204, he stated.
5:54:25 PM
REPRESENTATIVE KREISS-TOMKINS related that he had the
opportunity to work with Mr. Coffey, and appreciates his
commitment to the Department of Transportation & Public
Facilities and the services he performs in Alaskan communities.
CHAIR CLAMAN, after ascertaining no one wished to testify,
closed public testimony on CSHB 204.
5:55:17 PM
REPRESENTATIVE EASTMAN asked Captain Lowden whether it was his
understanding that this legislation would affect a situation
wherein a DOT employee was out of their vehicle rendering aid to
a disabled motorist or a car accident victim.
5:55:47 PM
CAPTAIN DAN LOWDEN, Division of Alaska State Troopers,
Department of Public Safety (DPS), pointed out that he is not a
lawyer, but surmised that because they were not doing road work,
maybe not. In the event there were other emergency vehicles
there, he opined, they would be covered in the sense that there
would be other vehicles there that the violator would be
passing. He added that in the event the employee and vehicle
were there by themselves, some folks may read this bill that
they were not covered.
5:56:52 PM
REPRESENTATIVE KOPP reminded the committee that the mission of
the DOT is to keep Alaska moving; therefore, every single thing
they do is to keep motorists moving and road service work is a
"very broad" term. He related that in his plain view reading of
the bill, road service work is the broadest possible term that
would cover all possible work on the road to keep Alaska moving,
and certainly attending to motorists in need is included.
CHAIR CLAMAN added that a disabled vehicle on the roadside is a
hazard to traffic, and assisting in moving that vehicle off the
road, under the narrowest view of road service work, would
certainly be road service work.
5:58:11 PM
REPRESENTATIVE FANSLER moved to report CSHB 204 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, CSHB 204(JUD) passed from the
House Judiciary Standing Committee.
HB 79-OMNIBUS WORKERS' COMPENSATION
5:58:41 PM
CHAIR CLAMAN announced that the next order of business would be
HOUSE BILL NO. 79, "An Act relating to workers' compensation;
repealing the second injury fund upon satisfaction of claims;
relating to service fees and civil penalties for the workers'
safety programs and the workers' compensation program; relating
to the liability of specified officers and members of specified
business entities for payment of workers' compensation benefits
and civil penalties; relating to civil penalties for
underinsuring or failing to insure or provide security for
workers' compensation liability; relating to preauthorization
and timely payment for medical treatment and services provided
to injured employees; relating to incorporation of reference
materials in workers' compensation regulations; relating to
proceedings before the Workers' Compensation Board; providing
for methods of payment for workers' compensation benefits;
relating to the workers' compensation benefits guaranty fund
authority to claim a lien; excluding independent contractors
from workers' compensation coverage; establishing the
circumstances under which certain nonemployee executive
corporate officers and members of limited liability companies
may obtain workers' compensation coverage; relating to the
duties of injured employees to report income or work; relating
to misclassification of employees and deceptive leasing;
defining 'employee'; relating to the Workers' Compensation
Board's approval of attorney fees in a settlement agreement; and
providing for an effective date." [Before the committee was CSHB
79(L&C), Version 30-GH1789\O.]
CHAIR CLAMAN advised he would move Amendment 5 to the bottom of
the stack of amendments, pending the committee's discussion on
Amendment 8.
[CHAIR CLAMAN passed the gavel to Vice Chair Fansler.]
5:59:41 PM
CHAIR CLAMAN moved to adopt Amendment 6, Version 30-GH1789\O.5,
Wallace, 4/4/17, which read as follows:
Page 18, line 11:
Delete "or knowingly fails to report a material
fact"
Page 18, line 23, through page 19, line 5:
Delete all material.
Renumber the following bill sections accordingly.
Page 19, lines 11 - 15:
Delete "An employee knowingly fails to report a
material fact under (a) and (b) of this section if the
employee does not disclose the receipt of unemployment
or other disability benefits or other employment, and
the employee knowingly receives compensation under
this chapter to which the employee is not entitled
because of the receipt of the other benefits or other
employment."
Page 21, line 20:
Delete "sec. 38"
Insert "sec. 37"
Page 21, line 22:
Delete "38"
Insert "37"
Page 21, line 24:
Delete "38"
Insert "37"
Page 21, line 27:
Delete "sec. 38"
Insert "sec. 37"
Page 21, line 28:
Delete "38" in both places
Insert "37" in both places
Page 21, line 30:
Delete "38"
Insert "37"
Page 22, line 18:
Delete "Section 41"
Insert "Section 40"
REPRESENTATIVE LEDOUX objected for discussion.
6:00:08 PM
CHAIR CLAMAN explained that Amendment 6 responds to written
concerns his office received from two or three lawyers involved
in Workers' Compensation matters as to "knowingly fails to
report a material fact." The lawyers noted that it could
actually put providers, and others, in a position of trying to
determine what is, or is not, a material fact. Chair Claman
noted that this particular language was a response to an Alaska
Supreme Court case, Shehata v. Salvation Army, [225 P. 3d 1106
(2010)] wherein the court found ambiguity as to whether a worker
had a duty to report whether they were trying to work and
whether it was paid or unpaid work. Amendment 6 creates the
duty to accurately disclose the work status of the worker, and
it does not create undesired duties for medical providers and
others, which was the prime objection of the lawyers writing to
the committee, he explained. After consultation with the
department, he advised that it has no objection to Amendment 6.
REPRESENTATIVE LEDOUX withdrew her objection. There being no
objection, Amendment 6 was adopted.
6:03:53 PM
CHAIR CLAMAN moved to adopt Amendment 7, written by Chair
Claman, which read as follows:
Page 4, line 7, following "partnership,":
Delete "or"
Page 9, line 27, following "self-represented,":
Insert "or"
Page 9, line 28:
Delete "or by a parent of"
Insert "a parent if the party is"
Page 11, lines 26 - 27:
Delete "if an employer controverts the employee's
right to compensation"
Insert "of the controversion"
Page 14, following line 23:
Insert a new bill section to read:
"* Sec. 27. AS 23.30.205(e) is amended to read:
(e) An employer or the employer's carrier shall
notify the commissioner of labor and workforce
development of any possible claim against the second
injury fund as soon as practicable, but in no event
later than 100 weeks after the employer or the
employer's carrier has knowledge of the injury or
death or after the deadline for submitting a claim for
reimbursement in (g) of this section."
Renumber the following bill sections accordingly.
Page 14, lines 25 - 28:
Delete all material and insert:
"(g) An employer or the employer's carrier must
establish all requirements for reimbursement in this
section, including notice of any possible claim and
the payment of compensation in excess of 104 weeks,
before submitting a claim for reimbursement to the
second injury fund. Notwithstanding (a) and (b) of
this section, a claim for reimbursement may not be
submitted for an injury or death that occurs after
August 31, 2017, and must be submitted before
October 1, 2019. An employer that qualifies for
reimbursement under this section will continue to
receive reimbursement payments on claims accepted by
the fund, or ordered by the board, until the fund's
liabilities for the claim are extinguished."
Page 21, line 20:
Delete "38"
Insert "39"
Page 21, line 22:
Delete "38"
Insert "39"
Page 21, line 24:
Delete "38"
Insert "39"
Page 21, line 27:
Delete "38"
Insert "39"
Page 21, line 28:
Delete both occurrences of "38"
Insert "39" in both places
Page 21, line 30:
Delete "38"
Insert "39"
Page 21, line 31:
Delete "29"
Insert "30"
Page 22, line 1:
Delete "29"
Insert "30"
Page 22, line 3:
Delete both occurrences of "29"
Insert "30" in both places
Page 22, line 5:
Delete "29"
Insert "30"
Page 22, following line 5:
Insert a new subsection to read:
"(d) The amendments to AS 23.30.205, added by
secs. 27 and 28 of this Act, apply to notice of any
possible claim and a claim for reimbursement submitted
on or after the effective date of secs. 27 and 28 of
this Act."
Page 22, line 18:
Delete "Section 41 of this Act takes"
Insert "Sections 27, 28, and 42 of this Act take"
Page 22, line 19:
Delete all material and insert:
"* Sec. 44. Section 31 of this Act takes effect
September 1, 2017."
Page 22, line 20:
Delete "29"
Insert "30"
REPRESENTATIVE REINBOLD objected.
CHAIR CLAMAN related that Amendment 7 was requested by the
Department of Labor & Workforce Development (DLWD), and Ms. Marx
would present the amendment.
6:04:26 PM
MARI MARX, Director, Division of Workers' Compensation,
Department of Labor & Workforce Development (DLWD), advised that
the Department of Law (DOL) brought this issue to the attention
of DLWD, and Kimber Rodger would explain the basis of its
concern.
6:04:50 PM
KIMBER RODGERS, Assistant Attorney General, Labor and State
Affairs Section, Department of Law, referred to Amendment 7,
page 1, lines 1-13, and explained that they are technical
changes to correct language issues. The real substance involves
the second injury fund within Amendment 7, page 1, lines 11-22,
and page 2, lines 4-14, and she advised that the idea was that
they clarify some procedures and extend deadlines for phasing
out the second injury fund. The new section, Section 27, ends
the requirement that employers provide notice of any possible
second injury fund claims because their claims could no longer
be submitted to the fund. She referred to Amendment 7, [page 2,
lines 4-14], and the new subsection (g), and advised that it
explains what is required to submit a claim for reimbursement to
the second injury fund, such that it does not permit claims to
be based on a subsequent injury or death that occurs after
August 31, 2017; and requires that employers file their claims
for reimbursement before October 1, 2019, and she noted that the
new addition of the section required some renumbering of
sections.
MS. RODGERS referred to Amendment 7, page 3, lines 25-29, and
explained that it adds a new subsection to the applicability
section, and clarifies that the second injury fund amendments
apply to notices of any possible claim and claim to
reimbursement submitted after the effective date of Sections 27
and 28, with the effective date of those sections being an
immediate effective date. She advised that this is provided in
Amendment 7, [page 3, line 31, and page 4, lines 1-2], where an
immediate effective date is necessary so that these sections
will take effect before the injury or death deadline date after
August 31, 2017.
MS. RODGERS remarked that Amendment 7 [page 4, lines 4-6],
provides for a new effective date of September 1, 2017 for
renumbered Section 31. She explained that Section 31 amends AS
23.30.247(c) to remove a provision allowing employers to ask
about a person's prior health or disability history in order to
document that employer's knowledge of a pre-existing condition
for a possible second injury fund reimbursement if the person
was later injured at work, she explained. As of September 1,
2017, this provision will no longer be needed because "a
subsequent injury or death had occurred at that time" will not
qualify for a second injury fund reimbursement. Therefore, she
noted, those questionnaires will no longer be necessary.
6:08:38 PM
REPRESENTATIVE REINBOLD withdrew her objection on Amendment 7.
There being no objection, Amendment 7 was adopted.
[VICE CHAIR FANSLER passed the gavel back to Chair Claman.]
6:09:02 PM
REPRESENTATIVE REINBOLD moved to adopt Amendment 8, Version 30-
GH1789\O.10, Wallace, 4/13/17, which read as follows:
Page 16, line 28:
Delete "three"
Insert "two"
Page 16, line 29, following "person":
Insert "is responsible for the satisfactory
completion of services that the person has contracted
to perform and is subject to liability for a failure
to complete the contracted work, or"
Page 17, line 1, following "location":
Insert "or a business mailing address"
Page 17, line 4:
Following "person":
Insert "provides contracted services for two or
more different customers within a 12-month period or"
Following "in":
Insert "any kind of"
Page 17, line 6:
Delete ";"
Insert "."
Page 17, lines 7 - 13:
Delete all material.
REPRESENTATIVE FANSLER objected.
6:09:12 PM
REPRESENTATIVE REINBOLD stressed that her name should have been
printed on Amendment 8 and asked that everyone write her name on
the document "because that's a big deal to me."
REPRESENTATIVE REINBOLD explained that Amendment 8 revises [Sec.
28, AS 23.30.230(a)(11)(H), page 16, line 28], and adds
provisions that an independent contractor "meet at least two of
the three listed criteria" to satisfy the definition of an
independent contractor. She explained that this amendment
loosens the language to ensure that independent contractors are
not held to strict eligibility standards that may be difficult
to overcome depending on the business size, operation, and
services offered. She advised that this amendment provides
flexibility in determining what constitutes an independent
contractor. It is important to foster small business
opportunities including those offered by independent contractors
in the time of Alaska's financial uncertainty. She related that
Independent contracting opportunities keep Alaskan businesses in
the business of providing services and professional services to
Alaskan and non-Alaskan businesses. She described Amendment 8
as a "win-win for everybody," and urged the committee's support.
She then thanked Chair Claman, committee members, the National
Federation of Independent Business (NFIB), and others opposing
parts of a "soon to be withdrawn" amendment, and the committee
staff in working closely with her office to make this a win-win
for everyone.
6:11:02 PM
CHAIR CLAMAN related that the committee received letters of
support from three different groups, and also support from the
American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO).
REPRESENTATIVE KOPP remarked that he fully supports the
amendment.
6:11:32 PM
REPRESENTATIVE FANSLER withdrew his objection. There being no
objection, Amendment 8 was adopted.
6:11:47 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 9, Version 30-
GH1789\O.9, Wallace, 4/11/17, which read as follows:
Page 10, line 14:
Delete "21st [14TH]"
Insert "14th"
Page 10, line 17:
Delete "21 [14] days"
Insert "14 days or twice a month"
Page 10, line 18, following "period.":
Insert "If the first installment of compensation
due under this subsection is not paid within 14 days
or a subsequent installment due under this subsection
is not paid every 14 days or twice a month, a grace
period will not be allowed and an additional amount
will become due under (e) of this section."
REPRESENTATIVE FANSLER objected for purposes of discussion.
6:12:02 PM
REPRESENTATIVE LEDOUX explained that when she introduced the now
adopted Amendment 2 [on 4/5/17], it provided that if [an
employer or insurer] had not paid workers' compensation benefit
to a worker within 14 days, no grace period would be allowed and
the late benefit would be penalized under this section. Since
the adoption of Amendment 2, she remarked, a representative from
the National Federation of Independent Business (NFIB) pointed
out that some businesses, including the State of Alaska, pay
their employees twice per month and it would be difficult to
change the benefits to a 14 day period within the computer
systems of people paying on a bi-monthly pay period. Amendment
9 changes it to every 14 days, or twice per month, she
explained.
REPRESENTATIVE REINBOLD commented that she likes the 7-day grace
period aspect and she would like feedback from those being
impacted.
REPRESENTATIVE LEDOUX pointed out that the 7 day grace period
was already eliminated [within the adoption of Amendment 2], and
Amendment 9 simply moves the time period from every 14 days to
twice per month. She reiterated to Representative Reinbold that
the discussion was not about the previously deleted 7 day grace
period.
REPRESENTATIVE REINBOLD argued that the amendment went from 14
days to 21 days.
6:14:01 PM
CHAIR CLAMAN disagreed and advised that the amendment changes
the 21 days to 14 days, [or twice per month].
REPRESENTATIVE REINBOLD after re-reading the amendment agreed
that Chair Claman and Representative LeDoux were correct. She
commented that she did not know whether anyone would like to
testify, but she would not fight it because Representative
LeDoux had the votes.
REPRESENTATIVE EASTMAN commented that he likes the idea of
Amendment 9, and suggested that under its current construction,
an employer could probably do what was unintended by this
amendment due to the word "or," and pay the money twice on day
30 and would be in compliance.
REPRESENTATIVE LEDOUX answered that she supposed it could be
read in that manner, although, that certainly wasn't the purpose
of the amendment, but Representative Eastman may have a point.
CHAIR CLAMAN referred to Representative Eastman's suggestion and
said that because the employer was not paying for past time and
was paying for the time going forward, that if the employee
received a full month at one time the employee probably would
have no objection. Although, he commented, the odds that an
employer would actually choose to pay in one lump sum is pretty
unlikely.
6:17:23 PM
MS. MARX answered that the language is "very broad" and is open
to multiple interpretations, and the division would probably
have difficulties in calculating penalties. Whereas, the
division could easily calculate when penalties may be due with a
set date, and every employer having the same due date. The
language "twice per month," she related, could be read to be two
days in one month period, a 30 day or a 31 day period.
6:18:11 PM
REPRESENTATIVE LEDOUX, noting that the division knows where the
committee wants to go with this language and is aware of the
problem, asked the language the division would suggest.
MS. MARX related that originally the compensation was paid
within 14 days with a grace period of 7 days, meaning an
employer actually had 21 days in which to pay. She opined, that
the administration changed it, and the feeling is to back to the
way it was before, "but changing it here." She explained. "So
here, I think the intent is to pay 14 days, and 'this right
here' adding twice per month, I'm not sure that that would meet
that intent to pay that 14 days."
CHAIR CLAMAN pointed out that it is not an attempt to make it 14
days, it's an attempt to recognize that many employers pay twice
per month. He commented that while technically a possibility,
in the real world no employer would pay the entire payment for
one month on the last two days of the month.
MS. MARX related that in her experience as a hearing officer, 9
out of 10 employers would follow the intent, and 1 out of 10
would construe the language against the intent, and it would
happen often enough that it would be a concern. She remarked
that in a perfect world, the fraud unit would not be in
existence.
6:20:49 PM
COMMISSIONER HEIDI DRYGAS, Department of Labor & Workforce
Development, clarified that there are different systems when
paying workers' compensation benefits. Typically, it is not the
employer paying the benefits - it's the insurer, and to have an
insurer pay every 14 days or every 21 days is a reasonable part
of its responsibilities. She commented that there are some
self-insured employers in this state. The workers' compensation
benefits system versus regular wages and benefits paid to
working employees are completely different and, she opined, the
attempt to try to fit it into an employer's version of how
employees are paid may not be necessary.
6:21:41 PM
REPRESENTATIVE LEDOUX asked Mr. DeWitt's perspective on the
amendment.
6:22:05 PM
DANNY DeWITT, State Director, National Federation of Independent
Business (NFIB), related that he is not an expert in workers'
compensation and advised that 14 days plus 14 days equals 28
days and most months have 31 days which causes math
difficulties. He related that he does not have a solution but
offered concern that without the grace period, it could create a
significant problem for folks paying on the 1st and 15th of the
month.
6:23:10 PM
REPRESENTATIVE LEDOUX remarked that as Commissioner Drygas
pointed out, everyone is covered through workers' compensation
insurance, or through those who might be self-insured. She
commented that she did not know whether anyone was available
from the workers' compensation carriers to testify, but it
wouldn't appear to actually impact Mr. DeWitt's clients, and it
might impact the workers' compensation insurance carrier.
MR. DeWITT explained that everything an insurance company has to
do is charged in premiums which directly affects his clients.
He offered concern that if a payment was made on the 14th, the
next payment would be on the 28th, which means three days into
the next month which puts everyone on a 54 year payment cycle,
rather than a 52 year cycle.
CHAIR CLAMAN commented that Mr. DeWitt may be getting his math
wrong but he wasn't going to quarrel with the math.
MR. DeWITT advised that he appreciates Representative LeDoux's
intent, but it begs the question of whether the math works,
which is why a grace period is necessary.
6:25:19 PM
CHAIR CLAMAN clarified that the issue Commissioner Drygas raised
was that it gets referred to the workers' compensation carrier.
The workers' compensation carrier is accustomed to the 14 days
rule, might prefer the 14 days rule, and might prefer not to get
confused by the twice per month rule, he said.
REPRESENTATIVE LEDOUX commented that at this point she was not
particularly interested in Amendment 9.
REPRESENTATIVE EASTMAN noted that if 14 days poses a math
problem, whether 16 days or 17 days would solve the problem.
MR. DeWITT stated that he was hesitant to respond and underlined
that "I really don't know enough of the technical issues," but
if forced to respond, would think that 16 days would work
because it would cover one month.
REPRESENTATIVE REINBOLD reiterated that a grace period is
important and then read to the committee [Amendment 9, page 1,
lines 10-13].
6:27:28 PM
REPRESENTATIVE LEDOUX, in reference to Mr. DeWitt's comments and
the 16 days, commented that she was unsure it was mathematically
better. In response to Representative Reinbold's comments, she
pointed out there is not a grace period when paying someone's
salary and she could not see why there should be a grace period
with workers' compensation benefits. Representative LeDoux then
remarked that if she had her druthers, she would like to
withdraw the amendment and as the bill progresses, that an
insurance carrier advise as to whether adopting this amendment
would become a data nightmare and how to solve the data
nightmare.
6:29:05 PM
REPRESENTATIVE LEDOUX withdrew Amendment 9.
6:29:14 PM
CHAIR CLAMAN asked Representative Reinbold, in light of the
committee action on Amendment 8, whether she preferred to not
offer Amendment 5.
REPRESENTATIVE REINBOLD related her appreciation with the AFL-
CIO, NFIB, Chair Claman's office, and the passage of Amendment
8, and opined that the parties came to a "great compromise," and
said she would not to make a motion to adopt Amendment 5.
6:29:52 PM
REPRESENTATIVE LEDOUX noted that the department did not weigh in
on Amendment 8, and asked whether the department accepted the
committee's action.
CHAIR CLAMAN advised that Commissioner Drygas gave him a "thumbs
up" to indicate that the department was good with Amendment 8.
REPRESENTATIVE LEDOUX stated that she was both impressed and
amazed that this was accomplished and thanked everyone who
worked on this bill to come up with a "win-win for everybody."
REPRESENTATIVE KOPP commented that this is a "great example" of
the public and private sector working together toward the common
goal of taking care of employees.
6:30:56 PM
REPRESENTATIVE FANSLER moved to report CSHB 79, Version 30-
GH1789\O, as amended, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 79(JUD) passed out of the House Judiciary
Standing Committee.
SB 55-OMNIBUS CRIME/CORRECTIONS
6:31:26 PM
CHAIR CLAMAN announced that the final order of business would be
CS FOR SENATE BILL NO. 55(FIN), "An Act relating to criminal law
and procedure; relating to controlled substances; relating to
sentencing; relating to protective orders; relating to
restitution; relating to the period of probation; relating to
revocation, termination, suspension, cancellation, or
restoration of a driver's license; relating to parole; relating
to the duties of the Department of Corrections and the
Department of Health and Social Services; and providing for an
effective date."
6:32:01 PM
The committee took an at-ease from 6:32 p.m. to 6:34 p.m.
6:34:24 PM
SENATOR JOHN COGHILL, Alaska State Legislature, advised that SB
55 was borne out of the recommendations from the Alaska Criminal
Justice Commission, and it is mostly technical and conforming in
nature. He noted that SB 54 contains policy calls and has taken
on a life of its own. This bill is based on issues the
Department of Law (DOL) brought to the Alaska Criminal Justice
Commission wherein the commission put something in one statute,
and through the amendment process there was not a conforming
change, and this bill conforms those changes, he explained. The
goal is to be as "technically clean" as possible during this
session, which would help both the DOL, Department of
Transportation & Public Facilities (DOTPF), Division of Motor
Vehicles while hammering out some of the policy call questions.
Senate Bill 91 [passed in the Twenty-Ninth Alaska State
Legislature] was a large omnibus crime package with many
amendments, and it is now necessary to line up the statutes.
6:36:56 PM
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, offered a sectional summary and advised that
Sections 1, 2, and 3, of the bill all do the same thing. He
explained that in 2015, the Alaska Criminal Justice Commission
recommended that the felony theft threshold be raised, which is
the dividing line between misdemeanor theft and felony theft.
The commission had advised to not only raise that threshold but
to link it to inflation so the legislature would not have to act
in the future on that issue. However, with Senate Bill 91
having 193 sections there were some drafting errors, and this
drafting error occurred when the drafter inadvertently, in three
instances, linked the higher amount of grand larceny, $25,000,
to inflation adjustment. He opined that this was an inadvertent
result of a floor amendment in the House of Representatives,
last year.
6:37:56 PM
MR. SHILLING advised that Section [3] of the bill relates to
drug possession, and as recommended by the commission in 2015 a
simple drug possession shall be a misdemeanor, with exceptions
to that recommendation.
REPRESENTATIVE LEDOUX offered that she doesn't understand why
adjusting for inflation would be considered a technical
amendment because it appears to be a fairly substantive change.
MR. SHILLING responded that the commission and Senator Coghill
consider it a technical change because the commission never
recommended that that the higher amount be linked to inflation.
He explained that it is the sponsor's understanding that there
was never an intention to link $25,000 to the inflation
adjustment.
REPRESENTATIVE LEDOUX said that if he was adjusting for
inflation, why there was never an intention to link $25,000 to
the inflation adjustment.
6:39:25 PM
CHAIR CLAMAN opined that this was the subject of a floor
amendment and was a compromise to adjust for inflation at the
lower level, but not at the higher level.
REPRESENTATIVE KOPP explained that the lower level determines
the first level of felony when moving from misdemeanor to
felony, and that the broad agreement was that $25,000 would
probably always be a class B felony throughout "our lifetime and
the next lifetime." The lower level is more sensitive to the
market, inflation, the actual value of items most frequently
stolen, and that the market is sensitive because it is a lower
amount moving from a misdemeanor to a felony theft, he said.
Whereas, the higher amounts are actually not as sensitive to the
threshold they are attached to on the felony scale. There will
always be felonies, he reiterated, but the lower level is moving
from misdemeanor to felony, and the debate was around when
something should go from a misdemeanor to a felony.
REPRESENTATIVE LEDOUX disagreed with this being the result of a
House of Representative floor amendment because she did not
recall any of those floor amendments actually passing.
CHAIR CLAMAN agreed with Representative LeDoux and advised that
he believes it was not a subject of a House of Representatives
floor amendment, it was actually a function of the amendments
offered in the House Judiciary Standing Committee last year.
6:41:25 PM
REPRESENTATIVE LEDOUX asked whether it was Chair Claman's
recollection that the committee meant to do this in the House
Judiciary Standing Committee, in which case it was not a
technical amendment.
CHAIR CLAMAN suggested that it was a technical amendment because
the House Judiciary Standing Committee "did it, but we did it in
most sections," and Mr. Shilling explained that there were a few
sections that appeared as though they were drafted erroneously.
Therefore, he said, this is conforming the statute to the intent
of the bill as it came through committee.
6:42:18 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, clarified that
the language being eliminated was, "adjusted for inflation as
provided in AS 11.46.982" and explained that AS 11.46.982
specifically reads that the judicial council will only adjust
for inflation the $250 amount and the $1,000 amount. She
pointed out that the Judicial Council does not have authority
anywhere to address the $25,000 amount, so that really was a
case of the drafters going through, and each time they saw
something added "adjusted for inflation," but erroneously doing
it for the dollar amount that was not authorized.
6:43:10 PM
MR. SHILLING advised that Section 4 of the bill relates to drug
possession, and as recommended by the Alaska Judicial
Commission, Senate Bill 91 made simple drug possession a
misdemeanor, with exceptions such as, felony forms of possession
in the law. Unfortunately, he said, those changes inadvertently
created some overlapping penalties, specifically for possession
of less than one ounce of a schedule VIA controlled substance.
This section eliminates those overlapping penalties, and
accommodates for the fact there are felony forms of drug
possession referenced in other statutes and it simply needs to
be referenced in Section 4 as well, he explained.
6:44:05 PM
REPRESENTATIVE LEDOUX inquired as to "overlapping penalties."
MR. SHILLING referred to CSSB 55(FIN), Version T, page 3, lines
3-6, which read as follows:
(4) under circumstances not proscribed
under AS 11.71.030(a)(3), 11.71.040(a),
11.71.040(a)(4), [AS 11.71.040(a)(3)] or
11.71.060(a)(2) [11.71.060(a)(2)(B)], possesses any
amount of a schedule 1A, IIA, IIIA, IVA, VA, or VIA
controlled substance.
MR. SHILLING explained that this statute makes simple possession
of drugs a class A misdemeanor, and it makes possession of
schedule 1A, IIA, IIIA, IVA, VA, or VIA substance a class A
misdemeanor. However, he pointed out, another statute has
another penalty for possession of less than one ounce of a
schedule VIA substance. He explained there is a statute that
makes it a class B misdemeanor for someone to possess less than
one ounce of a VIA controlled substance, and another statute
simultaneously makes it a class A misdemeanor.
REPRESENTATIVE LEDOUX surmised that there are inconsistent
penalties.
MR. SHILLING answered in the affirmative, and offered that the
sponsor chose to default to the class B misdemeanor, which was
the law prior to Senate Bill 91.
6:45:19 PM
REPRESENTATIVE REINBOLD referred to previous testimonies
referencing the State of Texas and asked Mr. Shilling to
describe how similar or different the drug issues are in Senate
Bill 91 in Alaska versus Texas.
MR. SHILLING pointed out that he is not an expert on the
sentencing frameworks of other states, but generally when
speaking of Texas it was spoken of as being one of the first
conservative states to embark on these types of criminal reform
efforts.
REPRESENTATIVE REINBOLD related that she would like to speak to
the committee at a later time as to the differences in Texas
because many times people have been misled, and stressed
considerable concern regarding Section 4.
6:46:52 PM
MR. SHILLING advised that Section 5 relates to victim
notification. Senate Bill 91 created a new requirement of the
court by requiring that information regarding sentencing be
given to the victim, thereby, giving the victim an opportunity
to update their contact information with the Victim Information
and Notification Everyday (VINE) system. However, the language
was not written in a manner that would accommodate for the fact
that many victims simply do not show up to court and; therefore,
the court system has been out of strict compliance with the
statute. Oftentimes, he commented, victims do not want to be
part of these hearings, and because it is not the court's role
to maintain a contact list of victim information, it would be
inappropriate to require the court to seek out these victims and
provide this information. Instead, he explained, the language
"if practicable" was added in recognition that many victims do
not show up to court.
6:48:01 PM
REPRESENTATIVE REINBOLD asked permission to read "Section 24" of
the constitution.
CHAIR CLAMAN stated that the committee did not need
Representative Reinbold to read from the constitution while
moving through the bill sectional, and she would have an
opportunity during the committee comment segment of the bill
hearing.
CHAIR CLAMAN, in response to Representative Reinbold's
continuing argument, stated that the committee would move
through the sectional summary at this time.
6:48:50 PM
MR. SHILLING clarified that the requirement to provide
information to victims did not exist prior to Senate Bill 91.
He explained that it is a piece of information the sponsor
strongly believes should be assessable to victims, and it was
established in law last year. He further explained that had
they identified a need for the language "if practicable," it
would have been changed last year.
6:49:09 PM
MR. SHILLING explained that Secs. 6, 7, 8, 9, and 10, all have
to do with the suspended entry of judgment (SEJ). Last year the
commission recommended a diversionary tool called a "suspended
entry of judgment (SEJ)" which resembles a "suspended imposition
of sentence (SIS)". The SEJ was established under Senate Bill
91, and was intended to operate a bit differently than the SIS
wherein a conviction would not be entered for defendants granted
an SEJ, thereby, avoiding some of the consequences resulting
from a conviction. He explained that Section 6 provides for an
array of authorities for the court system, and is the general
statute authorizing the court system to impose community work
service, fines, and sentences of imprisonment. Section 6 makes
it explicitly clear that the court does have the authority to
impose a suspended entry of judgment (SEJ).
6:50:17 PM
MR. SHILLING turned to Section 7, and advised that this section
is necessary to bring the suspended imposition of sentence (SIS)
and suspended entry of judgment (SEJ) closer into alignment. It
ensures that when a restitution order is made as a requirement
under an SEJ, that the responsibility to pay that restitution
does not go away or disappear when that individual successfully
completes an SEJ, and their case is discharged. The requirement
to pay restitution remains just as it does under a suspended
imposition of sentence (SIS).
6:50:51 PM
REPRESENTATIVE REINBOLD requested an explanation of the
difference between an SEJ and an SIS.
MR. SHILLING explained that [under an SEJ] a judgment is never
entered, the individual is truly not convicted, the case does
not appear on CourtView, and they can legally write on an
employment application that they have never been convicted of a
crime. He pointed out that this is designed for first time, low
risk offenders, and deferred to the Department of Law or the
Alaska Court System for any additional questions.
6:51:40 PM
MR. SHILLING advised that Section 8 deals with an SEJ, and
explained that it was unclear in the SEJ statutes whether a
brief prison stay could be imposed, similar to what can occur
under an SIS. He related that practitioners had requested
clarification as to whether there was an option of imposing a
brief period of imprisonment for individuals going through an
SEJ. He clarified that the commission never intended "shock
incarceration," for example, to be used under an SEJ and if the
commission had, it certainly would have recommended the
appropriate language. The commission felt it was prudent to
clarify in statute that incarceration may not be imposed as a
condition of probation under a suspended entry of judgment
(SEJ).
6:52:35 PM
REPRESENTATIVE REINBOLD paraphrased that "the court may not
impose a sentence of imprisonment under this section," and asked
for additional information as to this language tying the hands
of the court.
MR. SHILLING explained that it was not the intention of the
commission to impose shock incarceration under an SEJ.
6:53:20 PM
SENATOR COGHILL reminded the committee that under the suspended
entry of judgment (SEJ), the judgment is still there and the
idea is to get the person into treatment. The person must
complete that treatment in order to have that judgment suspended
and set aside. He described it as an accountability measure
because in order for the judgment to be set aside, the person
must complete the program requirements.
CHAIR CLAMAN noted that with an SEJ, the court made the decision
to suspend entry of judgment and send the person to a treatment
program. Therefore, the court decides at the very beginning of
the process whether it will give the person that opportunity.
The court's hands are not tied, he pointed out, this is simply
recognizing that a court decided to give a person that chance to
rehabilitate and not have a conviction.
SENATOR COGHILL described it as a methodology tool that a court
may or may not use.
6:54:32 PM
REPRESENTATIVE REINBOLD paraphrased "the court may not impose a
sentence of imprisonment under this section," and expressed
concern that many times funding and/or programs are not
available in certain areas, and in those instances what would be
the next step.
SENATOR COGHILL answered that the court may use the programs if
they are available, and if they are not available, the chances
are a court would not suspend an entry of judgment because it
couldn't practically follow the rules.
6:55:25 PM
REPRESENTATIVE EASTMAN referred to [Section 8] and asked how
broadly or narrowly imprisonment was defined, and if the court
decided a person needed to be hospitalized for a certain amount
of time whether that falls under imprisonment.
MR. SHILLING commented that he was unaware whether there was a
definition for imprisonment in Title 12, and opined that when
the word "imprisonment" is used, it refers to incarceration at a
Department of Corrections (DOC) facility. He explained that
different terms such as, home confinement and electronic
monitoring are used when referring to something other than a
hard bed facility within the DOC.
6:57:01 PM
MR. SHILLING explained that Section 9 also has to do with a
suspended entry of judgment (SEJ), and under existing law if a
person successfully completes probation under an SEJ, the court
may discharge the person and dismiss the proceedings any time
after one year from the date of the original probation. He
related that practitioners were confused by this language as to
whether it referred to the start date, end date, or at what
point in the probation term was being discussed. He clarified
that because probation terms are longer than one single day, it
is an increment of time and it makes sense to add the language
"was imposed," which is a grammatical issue to clarify that the
statute was referring to the start date of the term of
probation. Also, he said, this section clarifies that a person
is not convicted if they successfully complete an SEJ.
6:57:58 PM
REPRESENTATIVE REINBOLD referred to an SEJ, and asked whether
the person was ever convicted, and paraphrased: "a person who is
discharged in this section may not be convicted of a crime."
She said she wanted to look at the full ramifications from the
beginning to the end with regard to that sentence.
MR. SHILLING explained that under an SEJ, the person is never
convicted and this language makes it crystal clear that that
person is not convicted.
6:58:37 PM
REPRESENTATIVE REINBOLD said, "Yet, he or she has to do
probation and a whole bunch of other things," and something was
missing. She commented that if they are not convicted, why are
they on probation.
MR. SHILLING responded that a person faces many consequences
associated with being charged with a crime and are required to
perform community service, fines, or treatment, for example.
However, he said, the uniqueness of an SEJ that sets it apart is
that the person is not truly convicted and, thereby, avoids the
consequences that follow a conviction.
6:59:26 PM
REPRESENTATIVE REINBOLD surmised that the person actually
committed the crime and this is a way to erase the offense, but
argued that people have the right to know whether someone
actually committed a crime and see it listed on CourtView.
REPRESENTATIVE REINBOLD asked Mr. Shilling to explain who would
know about the SEJ, wherein the person actually committed the
crime but was not convicted.
MR. SHILLING explained that this is exactly how an SEJ works,
the person is not convicted and as a result their record does
not appear on the CourtView criminal record.
REPRESENTATIVE REINBOLD argued, "But, they committed it."
7:00:40 PM
CHAIR CLAMAN explained to Representative Reinbold that she was
exactly correct, under the criminal justice reform efforts an
SEJ is a tool the court can use for someone who admits to
committing a crime, to give them an opportunity to rehabilitate
themselves. He related that he fully understands Representative
Reinbold does not agree with that part of the criminal justice
reform efforts, and her distaste is clear.
REPRESENTATIVE REINBOLD said this is an issue that has been "of
great alarm" and she wanted to put it on record.
CHAIR CLAMAN assured Representative Reinbold that it was clearly
on record.
7:01:21 PM
REPRESENTATIVE KOPP explained to Representative Reinbold that
suspended entry of judgment (SEJ) means there is no written
official record of the conviction. He explained that the
defense, prosecution, [and judge] must all agree that the
conviction could be set aside if a whole host of conditions were
fulfilled on probation. He pointed out that the legislature
determined that a person was not eligible for an SEJ when
involving crimes against a person, sexual assault, violent
crimes, and almost any serious offense. The whole purpose
behind this is to allow first time offenders a chance to avoid
that initial conviction which could put them in the death spiral
of un-employability for the rest of their lives, he related. In
the event someone violates that probation they lose their
ability for that SEJ, and it will be a conviction. He described
it as a refined process.
7:03:26 PM
MR. SHILLING advised that Section 10 is a continuation of the
previous conversation regarding a suspended entry of judgment
(SEJ). It uses the words "convicted of" and "convicted" in
three instances, and because the person had not been convicted,
it made sense to refer to the charge rather than the conviction.
The fourth replacement of the words "convicted of" with "is
charged with" is for a different reason, there are a number of
exceptions, and a number of individuals are not eligible for an
SEJ. Under current law, a person convicted of a crime of
domestic violence is not eligible, "with convicted being past
tense" leads some practitioners to believe that might be
referring to a previous conviction of domestic violence. He
stressed that the sponsor wants to ensure that someone who is
"currently, right now," being charged with domestic violence
would not be eligible for an SEJ.
7:04:38 PM
MR. SHILLING explained that Section 11 eliminates overlapping
probation term lengths because Senate Bill 91 established
maximum probation term lengths. For example, he said, one of
the maximums was 15 years for a felony sex offense, and 10 years
for an unclassified felony under Title 11, and there are felony
sex offenses that are also unclassified felonies under Title 11.
He explained that there is an ambiguity about which maximum
probation term lengths would apply, and this section clears up
that ambiguity.
7:05:19 PM
MR. SHILLING pointed to Sections 12 and 13, and related that
they do the same thing. Senate Bill 91 raised the maximum fine
amount that could be imposed for a class A misdemeanor from
$10,000 to $25,000, and opined this was part of the
aforementioned House of Representatives amendment, but he would
perform research.
CHAIR CLAMAN said he was certain that amendment came out of the
House Judiciary Standing Committee and not from the floor of the
House of Representatives.
7:05:51 PM
MR. SHILLING remarked that these two statutes require certain
information to be on the protective order form, and these
sections talk about what the penalties might be for violating a
protective order. He noted that the form says that one of the
possible penalties would be a fine up to $10,000 except that is
no longer the maximum fine, and these two sections simply update
the information on the form to specify that the maximum fine can
be up to $25,000.
7:06:19 PM
REPRESENTATIVE REINBOLD asked whether the money goes to the
court system, the general fund, or whether it was restitution.
MR. SHILLING responded that he does not know the answer to that
question, and this is just a technical change that conforms
Alaska's fines statutes with the protective order statutes in
Title 18.
MS. MEADE answered that all fines for all crimes go straight
into the general fund.
7:07:19 PM
MR. SHILLING said that Section 14 has to do with license
revocations and this section removes a reference to the type of
dismissal that would serve to meet the requirements of this
section, and removing this reference to prejudice is
appropriate. The intent of this policy is to return the license
to the individual if they have been acquitted or their case
dismissed regardless of whether the dismissal was with or
without, prejudice. This simply removes the reference to
prejudice and gets back to the intent of that policy, he noted.
7:07:52 PM
MR. SHILLING explained that Section 15 is a new addition into SB
55 from the Senate Finance Committee. In 2015, the Alaska
Criminal Justice Commission recommended that municipalities be
prohibited from having greater punishments under municipal
ordinances that go beyond the punishments for similar offenses
described under state law. Senate Bill 91 enshrined that
recommendation in statute, but afterwards it came to the
sponsor's attention that folks were interpreting the language to
not only apply to crimes, but also non-criminal offenses and
traffic infractions. He noted that this has had the effect of
limiting significant revenue sharing for the Municipality of
Anchorage, for example, and creating an inability to collect
greater fines for traffic infractions. This section simply
changes the statute to apply only to criminal offenses, he
explained.
7:09:06 PM
REPRESENTATIVE REINBOLD asked whether this is similar to HB 223.
CHAIR CLAMAN responded "identical."
7:09:17 PM
MR. SHILLING referred to Section 16, and advised that the Alaska
Criminal Justice Commission recommended that agencies be
required to collect specific data on key performance measures,
to analyze the data, prepare reports for the legislature, to
continue to make recommendations, and play an oversight role for
the next five years. Due to an apparent oversight, the bill
missed an important data point that does need to be reported to
the commission relating to earned compliance credits, he said.
7:09:58 PM
MR. SHILLING said that Section 17 has to do with the Alcohol
Safety Action Program (ASAP), and this section aligns two bills
that were passed around the same time. Senate Bill 165 [passed
in the Twenty-Ninth Alaska State Legislature] made minor
consuming alcohol a violation and provided that the fine for
this violation may be reduced if that juvenile successfully
participated in ASAP. Senate Bill 91 limited the types of
offenses that could be referred to ASAP, in order to accommodate
for the fact that Senate Bill 165 felt strongly about sending
these juvenile offenders to ASAP, this section of the bill adds
those two juvenile offenses to the list of offenses that not
only the court can refer to ASAP, but the ASAP can accept.
7:10:58 PM
MR. SHILLING advised that Section 18 eliminates the notification
requirement for a parole hearing that will never occur. He
explained that this is a statute that says that individuals who
have committed a crime against a person or committed arson in
the first degree, and become eligible for an administrative
parole that notification should be sent to the victim. However,
he pointed out, those individuals are just not eligible for
administrative parole; therefore, no notification would ever
need to be sent and it is being repealed here.
7:11:34 PM
MR. SHILLING noted that Sections 19 and 20 are the applicability
provisions with respect to the entire bill. Section 20
clarifies that any decision made by the Board of Parole prior to
January 2017, is not somehow invalidated by the passage of a
certain section of Senate Bill 91, he explained.
7:11:55 PM
MR. SHILLING related that Section 21 provided for an immediate
effective date of all of the sections of Senate Bill 91.
CHAIR CLAMAN noted that it is his intention to move the bill
from committee today.
REPRESENTATIVE REINBOLD objected to moving the bill as this is
the bill's first presentation and public safety is government's
number one mandate.
7:13:04 PM
REPRESENTATIVE REINBOLD referred to the Constitution of the
State of Alaska, Article 1, Section 24, which read as follows:
Section 24. Rights of Crime Victims Crime victims, as
defined by law, shall have the following rights as
provided by law: the right to be reasonably protected
from the accused through the imposition of appropriate
bail or conditions of release by the court; the right
to confer with the prosecution; the right to be
treated with dignity, respect, and fairness during all
phases of the criminal and juvenile justice process;
the right to timely disposition of the case following
the arrest of the accused; the right to obtain
information about and be allowed to be present at all
criminal or juvenile proceedings where the accused has
the right to be present; the right to be allowed to be
heard, upon request, at sentencing, before or after
conviction or juvenile adjudication, and at any
proceeding where the accused's release from custody is
considered; the right to restitution from the accused;
and the right to be informed, upon request, of the
accused's escape or release from custody before or
after conviction or juvenile adjudication.
REPRESENTATIVE REINBOLD remarked that it is important to keep
the constitution at close hand, and expressed concern with the
technical changes.
7:14:48 PM
CHAIR CLAMAN opened public testimony on SB 55. After
ascertaining no one wished to testify, closed public testimony.
7:15:28 PM
CHAIR CLAMAN advised the committee that his office had received
"only one amendment," which was from Representative Reinbold and
it was received after 12:00 noon, which was after the deadline
for receiving amendments. He pointed out that the subject of
"those amendments" was addressed in two other bills, SB 54 and
HB 228, which are Representative Reinbold's bills. For both of
those reasons he ruled those amendments out of order and they
would not be considered, he stated.
7:15:57 PM
REPRESENTATIVE EASTMAN said he was curious about Chair Claman's
last statement, and commented that, obviously, not all of the
bills that come before the committee will pass, and asked how
the fact that the information was in another bill would keep the
committee from putting an amendment on this bill today.
CHAIR CLAMAN explained that when "we have the exact thing" that
has already been referred to a different committee, it takes
that work away from that committee. The amendment was also late
and for both of those reasons the committee would not hear the
amendment, he said.
CHAIR CLAMAN, in response to Representative Eastman, answered
that his view as committee chair is that the bill needs to be
moved out of committee.
7:16:53 PM
REPRESENTATIVE REINBOLD expressed her disappointment and said
that her amendment being ruled out of order was unnecessary and
she objected to her concerns not being heard.
7:17:58 PM
REPRESENTATIVE KOPP said, "Good bill, Mr. Chairman, let's move
it."
REPRESENTATIVE EASTMAN referred to Section 15, and asked whether
there had been discussion, "as we're tightening down" on what
municipalities can do because the change essentially encourages
municipalities to put higher costs on citations, and asked what
was driving the desire for those higher costs.
MR. SHILLING responded that the Alaska Criminal Justice
Commission never recommended that this limitation be imposed on
municipalities in a manner that restricted them from doing their
own thing when it came to non-criminal offenses. He expressed
that it was simply not what the commission recommended, and when
this language was in Senate Bill 91, the sponsor thought that it
did what the commission had recommended. After the bill was
signed it was determined that the language did not follow the
commission's recommendation, thus the change.
7:19:24 PM
REPRESENTATIVE FANSLER moved to report CSSB 55, Version 30-
LS0119\T out of committee with individual recommendations and
the accompanying fiscal notes.
REPRESENTATIVE REINBOLD objected.
7:19:40 PM
A roll call vote was taken. Representatives LeDoux, Fansler,
Kopp, Kreiss-Tomkins and Claman voted in favor of passing CSSB
55 out of committee. Representatives Eastman and Reinbold voted
against it. Therefore, CSSB 55(FIN) passed out of the House
Judiciary Standing Committee by a vote of 5-2.
7:21:10 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 7:21 p.m.