02/25/2022 01:30 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB172 | |
| SB11 | |
| HB325 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 11 | TELECONFERENCED | |
| *+ | HB 325 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 172 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 25, 2022
1:33 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Liz Snyder, Vice Chair
Representative Harriet Drummond
Representative Jonathan Kreiss-Tomkins
Representative David Eastman
Representative Sarah Vance
MEMBERS ABSENT
Representative Christopher Kurka
COMMITTEE CALENDAR
HOUSE BILL NO. 172
"An Act relating to admission to and detention at a subacute
mental health facility; establishing a definition for 'subacute
mental health facility'; establishing a definition for 'crisis
residential center'; relating to the definitions for 'crisis
stabilization center'; relating to the administration of
psychotropic medication in a crisis situation; relating to
licensed facilities; and providing for an effective date."
- MOVED CSHB 172(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 11(JUD)
"An Act relating to community property and to community property
trusts; and providing for an effective date."
- HEARD & HELD
HOUSE BILL NO. 325
"An Act relating to domestic violence."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 172
SHORT TITLE: MENTAL HEALTH FACILITIES & MEDS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
04/12/21 (H) READ THE FIRST TIME - REFERRALS
04/12/21 (H) JUD, HSS, FIN
05/14/21 (H) JUD AT 1:00 PM GRUENBERG 120
05/14/21 (H) Heard & Held
05/14/21 (H) MINUTE(JUD)
05/15/21 (H) JUD AT 1:00 PM GRUENBERG 120
05/15/21 (H) -- MEETING CANCELED --
02/14/22 (H) JUD AT 1:00 PM GRUENBERG 120
02/14/22 (H) -- MEETING CANCELED --
02/16/22 (H) JUD AT 1:30 PM GRUENBERG 120
02/16/22 (H) Heard & Held
02/16/22 (H) MINUTE(JUD)
02/21/22 (H) JUD AT 1:00 PM GRUENBERG 120
02/21/22 (H) Heard & Held
02/21/22 (H) MINUTE(JUD)
02/23/22 (H) JUD AT 1:30 PM GRUENBERG 120
02/23/22 (H) Heard & Held
02/23/22 (H) MINUTE(JUD)
02/25/22 (H) JUD AT 1:30 PM GRUENBERG 120
BILL: SB 11
SHORT TITLE: COMMUNITY PROPERTY TRUSTS
SPONSOR(s): BEGICH
01/22/21 (S) PREFILE RELEASED 1/8/21
01/22/21 (S) READ THE FIRST TIME - REFERRALS
01/22/21 (S) L&C, JUD
03/10/21 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/10/21 (S) -- MEETING CANCELED --
03/12/21 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/12/21 (S) Heard & Held
03/12/21 (S) MINUTE(L&C)
03/19/21 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/19/21 (S) Moved SB 11 Out of Committee
03/19/21 (S) MINUTE(L&C)
03/22/21 (S) L&C RPT 4DP
03/22/21 (S) DP: COSTELLO, GRAY-JACKSON, STEVENS,
HOLLAND
05/05/21 (S) JUD AT 1:30 PM BUTROVICH 205
05/05/21 (S) Heard & Held
05/05/21 (S) MINUTE(JUD)
05/10/21 (S) JUD AT 1:30 PM BUTROVICH 205
05/10/21 (S) Moved CSSB 11(JUD) Out of Committee
05/10/21 (S) MINUTE(JUD)
05/11/21 (S) JUD RPT CS 3DP 2NR SAME TITLE
05/11/21 (S) DP: HOLLAND, HUGHES, KIEHL
05/11/21 (S) NR: MYERS, SHOWER
05/17/21 (S) TRANSMITTED TO (H)
05/17/21 (S) VERSION: CSSB 11(JUD)
05/18/21 (H) READ THE FIRST TIME - REFERRALS
05/18/21 (H) L&C, JUD
02/02/22 (H) L&C AT 5:15 PM BARNES 124
02/02/22 (H) Heard & Held
02/02/22 (H) MINUTE(L&C)
02/14/22 (H) L&C AT 3:15 PM BARNES 124
02/14/22 (H) Moved CSSB 11(JUD) Out of Committee
02/14/22 (H) MINUTE(L&C)
02/16/22 (H) L&C RPT 5DP 2NR
02/16/22 (H) DP: SNYDER, MCCARTY, SCHRAGE,
SPOHNHOLZ, FIELDS
02/16/22 (H) NR: NELSON, KAUFMAN
02/25/22 (H) JUD AT 1:30 PM GRUENBERG 120
BILL: HB 325
SHORT TITLE: DOMESTIC VIOLENCE
SPONSOR(s): RASMUSSEN
02/16/22 (H) READ THE FIRST TIME - REFERRALS
02/16/22 (H) JUD
02/25/22 (H) JUD AT 1:30 PM GRUENBERG 120
WITNESS REGISTER
HEATHER CARPENTER, Senior Policy Advisor
Department of Health and Social Services
Juneau, Alaska
POSITION STATEMENT: Explained Amendment 5 to HB 172, Version W.
SENATOR TOM BEGICH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As prime sponsor, introduced SB 11.
TREVOR BAILLY, Staff
Senator Tom Begich
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of Senator Begich, prime sponsor,
presented SB 11 and gave a sectional analysis.
BILL PEARSON, Shareholder
Foley and Pearson, P.C.
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony in support of SB
11.
LINDA HULBERT, Registered Representative and Insurance Agent
New York Life
Fairbanks, Alaska
POSITION STATEMENT: Provided invited testimony in support of SB
11.
MATTHEW BLATTMACHR, President and Chief Executive Officer
Peak Trust Company
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony in support of SB
11.
REPRESENTATIVE SARA RASMUSSEN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As prime sponsor, introduced HB 325.
CRYSTAL KOENEMAN, Staff
Representative Sara Rasmussen
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of Representative Rasmussen,
prime sponsor, explained HB 325 and answered questions.
LOREE MORTON, Advocacy Initiatives Director
Alaska Network on Domestic Violence and Sexual Assault
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
325.
KACI SCHROEDER, Assistant Attorney General
Criminal Division, Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
325.
MICHAEL HENRY, Sergeant
Alaska State Troopers
Department of Public Safety
Soldotna, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
325.
KELLY HOWELL, Special Assistant to the Commissioner
Department of Public Safety
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
325.
ACTION NARRATIVE
1:33:50 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:33 p.m. Representatives Vance, Drummond,
Snyder, Kreiss-Tomkins, Eastman, and Claman were present at the
call to order.
HB 172-MENTAL HEALTH FACILITIES & MEDS
1:34:30 PM
CHAIR CLAMAN announced that the first order of business would be
HOUSE BILL NO. 172, "An Act relating to admission to and
detention at a subacute mental health facility; establishing a
definition for 'subacute mental health facility'; establishing a
definition for 'crisis residential center'; relating to the
definitions for 'crisis stabilization center'; relating to the
administration of psychotropic medication in a crisis situation;
relating to licensed facilities; and providing for an effective
date." [Before the committee, adopted as a working document on
2/16/22 and amended on 2/23/22, was the proposed committee
substitute (CS) for HB 172, Version 32-GH1730\W, Foote, 2/16/22
("Version W").]
CHAIR CLAMAN explained that the offered amendment would address
previously expressed concerns from the committee pertaining to
grievance procedures. He stated that the timeline proposed for
the Department of Health and Social Services (DHSS) to report
grievance procedures to the legislature would be one year from
the effective date of the bill. This would allow the department
to confer with stakeholders and licensing organizations. He
stated that Legislative Legal Services has permission to make
any technical and conforming changes to the proposed
legislation.
1:36:14 PM
REPRESENTATIVE SNYDER moved to adopt Amendment 5 to HB 172,
Version W, as amended, labeled 32-GH1730\W.20 Foote 2/24/22,
which read as follows:
Page 12, following line 31:
Insert a new bill section to read:
"* Sec. 26. The uncodified law of the State of
Alaska is amended by adding a new section to read:
REPORT TO THE LEGISLATURE. (a) One year after the
effective date of this Act, the Department of Health
and Social Services and the Alaska Mental Health Trust
Authority shall submit a joint report to the senate
secretary and chief clerk of the house of
representatives and notify the legislature that the
report is available. The report must
(1) include an assessment of the current
state, federal, and accrediting body requirements for
psychiatric patient rights, including patient
grievance and appeal policies and procedures; the
assessment must address the adequacy of these policies
and procedures and the practical challenges patients
face in availing themselves of these rights;
(2) identify and recommend any additional
changes to state statutes, regulations, or other
requirements that could enhance patient rights,
particularly involving involuntary admissions,
involuntary medications, and the practical ability of
patients to avail themselves of their rights; and
(3) assess and recommend any needed changes
to current processes for data collection and reporting
of patient grievances and appeals, patient reports of
harm and restraint, and the resolution of these
matters.
(b) The process used by the Department of Health
and Social Services and the Alaska Mental Health Trust
Authority to develop the assessment and
recommendations under (a) of this section must include
convening a diverse stakeholder group that includes
members representing patients with lived experience,
patient advocates, the Disability Law Center of
Alaska, providers of psychiatric services, the
ombudsman, the Alaska Mental Health Board, the
Department of Health and Social Services, and the
Alaska Mental Health Trust Authority. A draft
assessment and any recommendations must be made
available for public comment, and any comments must be
given due consideration before the production and
transmittal of the final report."
Renumber the following bill sections accordingly.
Page 13, line 14:
Delete "Section 27"
Insert "Section 28"
CHAIR CLAMAN objected.
1:36:26 PM
HEATHER CARPENTER, Senior Policy Advisor, Department of Health
and Social Services, spoke to Amendment 5. She stated that the
amendment was drafted following concerns expressed by the
committee. She stated that the amendment refers to a "report".
She explained that the report could be described as an action
plan. She stated that stakeholders, including DHSS, the Alaska
Mental Health Trust Authority, individuals with lived
experience, patient advocates, the Disability Law Center of
Alaska, and the Alaska State Ombudsman would provide
transparency, bring forth concerns, and conduct a full review.
She stated that this would require a public process, including a
comment period and a report to be issued to the legislature.
REPRESENTATIVE EASTMAN stated that the proposed amendment did
not include on-site visits and was associated with oversight of
accrediting bodies. He expressed the opinion that the
legislature should take steps to ensure on-site visits.
1:39:28 PM
CHAIR CLAMAN withdrew his objection. There being no further
objection, Amendment 5 was adopted.
REPRESENTATIVE DRUMMOND expressed her belief that HB 172 would
benefit Alaskans.
REPRESENTATIVE VANCE expressed the recognition of the need to
keep [those suffering with a mental illness] out of emergency
rooms and jails. She expressed concerns regarding the
involuntary administration of psychotropic medications.
REPRESENTATIVE EASTMAN expressed the intent to vote to keep the
bill in committee. He expressed concerns regarding the
involuntary administration of medications.
CHAIR CLAMAN noted that the passage of Version W would maintain
the status-quo on the rights of patients and the administration
of psychotropic medications. He stated that a bill had been
passed in a previous legislature which addressed the matter. He
stated that the Citizen's Commission on Human Rights of Alaska,
Montana, and Washington has provided a letter, dated May 12,
2021; however, the letter did not take into consideration
Version W. He noted that the lawsuit with the Disability Law
Center, relating to access to psychiatric treatment, is in the
process of being settled. He noted that the Disability Law
Center has been involved in testimony and has expressed its
support for the proposed legislation.
1:45:11 PM
REPRESENTATIVE SNYDER moved to report HB 172, Version W, as
amended, out of committee with individual recommendations and
the accompanying fiscal notes.
1:45:24 PM
REPRESENTATIVE EASTMAN objected.
A roll call vote was taken. Representatives Drummond, Snyder,
Kreiss-Tomkins, and Claman voted in favor of moving HB 172,
Version W, as amended, out of committee with individual
recommendations and the accompanying fiscal notes.
Representatives Vance and Eastman voted against it. Therefore,
CSHB 172(JUD) was reported out of the House Judiciary Standing
Committee by a vote of 4-2.
SB 11-COMMUNITY PROPERTY TRUSTS
1:46:06 PM
CHAIR CLAMAN announced that the next order of business would be
SENATE BILL NO. 11, "An Act relating to community property and
to community property trusts; and providing for an effective
date."
1:46:24 PM
SENATOR TOM BEGICH, Alaska State Legislature, as prime sponsor,
introduced SB 11. He stated that the bill would address
community property trusts and had been introduced in the
previous legislature. He stated that the bill would provide a
reinterpretation of the community trust laws established in
1998. He stated that the assumption has been trusts would
include the appreciation of assets. He quoted former
Representative Joe Ryan, who said, "When one of the partners
dies, the basis for the value of the asset is that at which it
was purchased and any appreciation of that on behalf of the
estate." He stated that a recent court decision did not include
appreciation in the valuation of assets. He stated that SB 11
would remove ambiguity and would more accurately reflect
legislative intent. He added that there would be no impact on
pending legislation, and the bill would include a provision to
ensure no lawsuits occurring prior to the law taking effect
would be impacted.
1:49:09 PM
TREVOR BAILLY, Staff, Senator Tom Begich, Alaska State
Legislature, on behalf of Senator Begich, prime sponsor,
presented the sponsor statement [included in the committee
packet] which read as follows [original punctuation provided]:
Alaska is a state with favorable trust laws and
favorable laws for property ownership between spouses.
Alaska allows for "opt in" community property
ownership between married spouses. Community property
ownership can provide tremendous tax advantages to
spouses. In Alaska, residents can enter into community
property agreements, and residents and nonresidents
can enter into Alaska community property trusts. This
benefits the individuals entering these agreements,
the trust industry of Alaska, increases deposits in
Alaska banks and through the revenue generated by the
formation of a new trust, the state.
Community property is simply a way to own joint
property. A common way to enter a community property
agreement is in conjunction with one's spouse. Each
party must elect into this agreement and the agreement
provides, most commonly, equal ownership and
management of specific property.
Currently, community property has a significant tax
advantage. When a spouse dies, community property is
placed into a category that allows tax advantages when
that property is sold. To realize these advantages,
appreciation and income must be characterized as
community property.
The default rule has generally been that appreciation
and income on community property will be characterized
as community property, unless otherwise declared in
the community property trust. Trust attorneys have
attested to this interpretation, however recent court
rulings have created an ambiguous understanding of
this general criterion. This legislation, consistent
with industry understandings of trusts, seeks to
clearly define community property as including
appreciation and income on community property.
SB 11 establishes a clear definition of appreciation
and income as community property, as intended by The
Community Property Trust Act. Portions of this
legislation also have a retroactive effective date of
May 23, 1998.
MR. BAILLY provided the sectional analysis [included in the
committee packet] which read as follows [original punctuation
provided]:
Section 1. Clarifies intent of subsection (h) under AS
34.77.030 to ensure any financial gains directly
related to appreciation of community property trusts
are treated as community property unless legal trust
documents clearly state otherwise.
Section 2. Adds a new subsection under AS 34.77.030 to
retroactively apply the above changes in statute to
community property trust agreements established on or
after May 23, 1998. This section also applies an
existing statutory definition of "community property
trust. "
Section 3. Adds as a new uncodified law of the State
of Alaska to ensure above changes do not impact court
actions or proceedings that began before Section 1 of
this Act takes effect.
Section 4. Establishes a retroactivity date of Section
1 of this Act as May 23, 1998.
Section 5. States Section 1 and Section are
immediately effective upon passage of this
legislation.
1:53:26 PM
BILL PEARSON, Shareholder, Foley and Pearson, P.C., provided
invited testimony in support of SB 11. He offered a brief
biography, including his time as an attorney practicing estate
planning. He stated that SB 11 would provide an important
technical fix.
1:54:27 PM
LINDA HULBERT, Registered Representative and Insurance Agent,
New York Life, provided invited testimony in support of SB 11.
She stated that her support is on behalf of her insurance
clients. She shared that she has been in business in Alaska for
over 30 years. She stated that the proposed legislation would
be of benefit to her clients, as it would affect their wills and
trusts.
1:55:53 PM
MATTHEW BLATTMACHR, President and Chief Executive Officer, Peak
Trust Company, provided invited testimony in support of SB 11.
He echoed previous testimony and stated that SB 11 would be a
technical and clarifying change to the law.
SENATOR BEGICH disclosed that a member of his staff is a client
of Ms. Hulbert.
1:57:25 PM
REPRESENTATIVE VANCE asked why the bill would be retroactive to
1998. She questioned the effects from the intervening time.
SENATOR BEGICH answered that the Alaska Community Property Act
became effective on the 1998 date, and there has been an
understanding the values of assets would appreciate over time.
He stated that a recent court ruling created ambiguity regarding
appreciation in the value of assets. He stated that the
retroactive date would hold harmless the hundreds of thousands
of individuals holding community property trusts, and any
pending legal actions would not be affected by the passage of SB
11.
REPRESENTATIVE VANCE referred to an excerpt of the document
entitled, "SB 11 Supporting Document - Community Property Trust
Act.pdf," [included in the committee packet,] which read as
follows [original punctuation provided]:
THE CONSEQUENCES OF THIS TRUST MAY BE VERY EXTENSIVE,
INCLUDING, BUT NOT LIMITED TO, YOUR RIGHTS WITH
RESPECT TO CREDITORS AND OTHER THIRD PARTIES,
AND YOUR RIGHTS WITH YOUR SPOUSE BOTH DURING THE
COURSE OF YOUR MARRIAGE AND AT THE TIME OF A DIVORCE.
ACCORDINGLY, THIS AGREEMENT SHOULD ONLY BE SIGNED
AFTER CAREFUL CONSIDERATION. IF YOU HAVE ANY
QUESTIONS ABOUT THIS AGREEMENT, YOU SHOULD SEEK
COMPETENT ADVICE. (c) A community property trust may
not adversely affect the right of a child to support.
REPRESENTATIVE VANCE asked for further explanation.
SENATOR BEGICH answered that the language had been included in
the original Act. He explained that it had been intended to
inform parties of their obligations in entering a community
trust.
2:01:51 PM
REPRESENTATIVE EASTMAN questioned the status of the lawsuit
which had prompted the filing of the proposed bill.
SENATOR BEGICH deferred to the invited testifiers to provide a
status of the court case. He added that, regardless of the
status of the case, the bill was drafted so it would not affect
any litigation pending prior to the effective date of the bill.
MR. PEARSON pointed out that Phillips v. Bremner-Phillips, 477
P.3 626 (2020), had had a final judgment issued. He expressed
the opinion that the case may have been remanded to the Superior
Court of Alaska.
CHAIR CLAMAN confirmed that the case is final, and it had not
been remanded to the Superior Court of Alaska.
REPRESENTATIVE EASTMAN asked whether ambiguity as this could be
avoided in the future.
SENATOR BEGICH answered that the language in the proposed
legislation was developed as a direct result of the ambiguity
which prompted the lawsuit. He added that former Representative
Joe Ryan had testified that the assets could be sold, with gains
realized without paying federal taxes. It was a statement of
intent that the gains were intended to be part of appreciation
[of assets.]
2:05:16 PM
SENATOR BEGICH, in response to a question from Representative
Kreiss-Tomkins, stated that the passage of the bill would not
affect the case. If litigation was taken today, he posited, it
would be based on the savings clause in current law. He stated
that SB 11 would remove the ambiguity as to whether appreciation
would be included. In response to a follow-up question, he
stated that should the court case be brought after the passage
of the bill, there would be a different outcome.
2:07:17 PM
REPRESENTATIVE EASTMAN referred to the savings clause and, given
the law would be changed, questioned how it would be applied
retroactively.
SENATOR BEGICH answered that the two clauses are deliberately
drafted to change the law. He stated that, prior to the
Phillips v. Bremner-Phillips case, the court had never
previously interpreted these matters, and any litigation filed
prior to the effective date of SB 11 would not be affected. He
stated that the passage of SB 11 would demonstrate this had been
the legislature's intent from the start. He added that he was
unaware of any active litigation which would be affected by the
interpretation of the associated law.
2:10:37 PM
REPRESENTATIVE EASTMAN asked whether advice given to clients by
attorneys based on flawed legislation would put clients at a
disadvantage.
SENATOR BEGICH referred to the invited testifier, who had
demonstrated the advice given to hundreds of clients had been
based on legislative intent, which is offered in SB 11.
2:13:04 PM
CHAIR CLAMAN announced that SB 11 was held over.
HB 325-DOMESTIC VIOLENCE
2:13:12 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 325, "An Act relating to domestic violence."
2:13:47 PM
REPRESENTATIVE SARA RASMUSSEN, Alaska State Legislature, as
prime sponsor, presented HB 325. She stated that HB 325 would
incorporate image-based sexual abuse, which may be referred to
as "revenge porn," into the definition of domestic violence so
it could be prosecuted as harassment in the second degree.
2:14:45 PM
CRYSTAL KOENEMAN, Staff, Representative Sara Rasmussen, Alaska
State Legislature, on behalf of Representative Rasmussen, prime
sponsor, addressed the proposed HB 325. She pointed out the
definition related to explicit images contained in the statute,
which defines harassment in the second degree, would be moved
into AS 18.66.990 (3), which defines domestic violence and
crimes involving domestic violence. She stated that the
proposed legislation would not modify the definition as it
pertains to explicit images and distributing them. It would
only move the definition into the domestic violence statutes so
it can be used to protect victims.
2:16:29 PM
LOREE MORTON, Advocacy Initiatives Director, Alaska Network on
Domestic Violence and Sexual Assault, provided invited testimony
in support of HB 325. She stated that the Alaska Network on
Domestic Violence and Sexual Assault (ANDVSA) supports adding to
the domestic violence statute this element of harassment in the
second degree. She stated that, per the proposed legislation, a
crime involving domestic violence would include publishing or
distributing electronic or printed photographs, pictures, or
films which show the genitals, anus, or female breast(s) of the
other person, or show a person engaged in a sexual act. She
expressed the opinion that abusers will use any means to control
partners and to coerce partners into doing, or not doing,
certain things, to benefit the abuser. She stated that the use
of the media described could cause ridicule, embarrassment,
shame, and degradation. She suggested that this could be used
to keep the victim trapped in an abusive situation.
2:18:31 PM
REPRESENTATIVE SNYDER expressed the understanding that the
sharing of such images is already a crime, but it is not
considered a crime of domestic violence.
MS. KOENEMAN confirmed this as correct.
REPRESENTATIVE SNYDER questioned whether there would be any
changes in penalty or punishment.
REPRESENTATIVE RASMUSSEN answered that the important change
would be victims could petition for a restraining order.
2:20:12 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law, provided invited testimony on HB 325. She
stated that the crime of domestic violence is used in several
areas of law, including criminal law and the filing of
protective orders. She offered an example of an individual who
may interfere with the reporting of a crime of domestic violence
and, should HB 325 pass, the use of images could be used as
evidence of this crime. She stated that the crime would be a
Class B misdemeanor, and the sentence would not change. She
stated that mandatory minimum sentences for crimes of domestic
violence exist, such as those involving assault. She noted that
special provisions exist for bail associated with crimes of
domestic violence at the time of arraignment.
MS. SCHROEDER, in response to a question from Representative
Vance, stated that for a court to issue a protective order, the
court would have to find that a crime of domestic violence had
occurred, and it would refer to the underlying statute to
determine whether the conduct had amounted to domestic violence.
In response to a follow-up question regarding how a protective
order could add protection against the use of images, she stated
that a court could order an individual not to commit a crime
against a person, and any continued behavior could result in
additional criminal charges. She added that there would likely
be a provision of no contact issued.
2:23:29 PM
REPRESENTATIVE EASTMAN questioned the definition of "publishing"
or "distributing," as referred to in the proposed legislation.
MS. SCHROEDER answered that the definition of publishing exists
on the internet, as it does in other statutes. She added that
the Webster's Dictionary is used to define terms which are not
already defined in statute.
REPRESENTATIVE EASTMAN asked whether "distribution" would be
considered if images are only distributed to one other
individual.
MS. SCHROEDER answered that the material would not be required
to be widely distributed. She added that "distributes" is
defined in 11.61.116, which pertains to distributing an explicit
image of a minor. This means to deliver an image by sending
the image to another person's computer or telephone.
2:25:10 PM
REPRESENTATIVE EASTMAN noted that the definition would include
both electronic and print [format]. He posited that an
individual may attempt to contact a minor's parent to alert the
parent to the image being distributed. He expressed concern
that this could result in the concerned party having committed a
crime.
MS. SCHROEDER clarified that the example pertains to children;
therefore, it is associated with a different statute. She added
that this would not concern domestic violence. She added, for a
crime to have occurred, the perpetrator would have had the
intent to harass or annoy the victim. She stated that the
previous example could be an indication a crime had occurred,
and this would require evidence of the mental state of the
individual sharing the explicit image with the parent. She
added that an individual sharing an image out of concern would
not be an intent to harass or annoy.
REPRESENTATIVE RASMUSSEN added that, in cases of domestic
violence, the abuser is often engaged in acts to manipulate or
coerce the victim. She offered an example in which a
perpetrator threatens to share, or does share, the image with
the victim's employer. She reiterated that distributing it
solely to one person would meet the definition of harassment.
2:31:27 PM
REPRESENTATIVE SNYDER, using the hypothetical situation
involving an explicit image of a 16-year-old person, questioned
whether the definition of domestic violence would be met when
the concerned party is not a member of the 16-year-old's
household.
MS. SCHROEDER answered that for a crime to be considered
"domestic violence," the perpetrator is required to be a member
of the victim's household. She noted that if a 16-year-old
person is annoyed because a parent is notified, this would not
amount to the intent to harass or annoy the victim.
REPRESENTATIVE EASTMAN expressed the understanding that the
proposed definition would exclude a 15-year-old victim. He
questioned why it would pertain to a 16-year-old individual.
MS. KOENEMAN answered that any [explicit] images of an
individual under the age of 16 would fall under AS 11.61.116,
which addresses the explicit images of minors.
REPRESENTATIVE EASTMAN asked whether the sponsor's intent is for
crimes associated with a 16-year-old individual be considered
domestic violence, while those associated with individuals under
the age of 16 not be considered domestic violence.
REPRESENTATIVE RASMUSSEN answered that HB 325 would not address
the age of consent in statute, but it would update the
associated statute to include the increased prevalence of
electronic images and videos and how this distribution would
make the victim embarrassed or ashamed.
REPRESENTATIVE EASTMAN restated his question, asking why
individuals under the age of 16 would be excluded from the
definition of domestic violence [in the proposed bill].
MS. KOENEMAN answered that the distribution of these images is
already in statute, and HB 325 would not make changes to this
existing statute.
2:38:17 PM
REPRESENTATIVE VANCE questioned the frequency of this type of
behavior, and she questioned whether it occurs enough to
establish the proposed bill.
2:39:06 PM
MICHAEL HENRY, Sargeant, Alaska State Troopers, Department of
Public Safety (DPS), provided invited testimony on HB 325. He
stated that DPS has conducted an audit to determine statistics
related to harassment, and the law contains approximately eight
subsections under which there were 180 instances. He cautioned
that the information provided was an estimate.
CHAIR CLAMAN asked whether the 180 cases of harassment had
included first- and second-degree charges. He questioned the
timeframe of the charges.
SERGEANT HENRY answered that the statistics include data from
2012 to the present, with the charges filed under AS 11.61.128
(6). He noted that some of those reported had been improperly
coded. He stated that a separate audit has been conducted
regarding cases which resulted in charges filed, and this
totaled nine incidents. He offered to follow up to the
committee with additional research, if needed.
MS. KOENEMAN added that crimes involving domestic violence are
severely underreported, as reasons exist for victims to not come
forward. She suggested the absence of statistics supporting the
need for the bill does not equate to less of a need for the
protections in law.
2:43:12 PM
REPRESENTATIVE VANCE referred to page 1 of a document entitled
"HB 325 Supporting Documents 2.17.2022.pdf," [included in the
committee packet] which depicts "revenge porn" as illegal,
noting, "1 in 3 victims of sextortion in a 2017 online survey
said they had never told anyone, largely because of shame or
embarrassment." She asked whether there exists a legal loophole
and whether this is the reason for the proposed legislation.
MS. KOENEMAN answered that this type of harassment is illegal in
Alaska under criminal harassment statute, but it is not included
in the domestic violence statute. She stated that, when the
court is seeking to determine if a crime of domestic violence
between household members has occurred, a domestic violence
protective order could be issued based on such conduct.
REPRESENTATIVE SNYDER asked whether the primary purpose of the
proposed bill would be to include the publication and
distribution of explicit images, so individuals may file for a
protective order under the domestic violence statute.
MS. KOENEMAN answered yes, and it would provide victims legal
assurance that the conduct qualifies as domestic violence.
REPRESENTATIVE SNYDER, in cases that involve teenagers not
sharing a household with the perpetrator, asked whether [an
individual between the ages of 16 to 18] would file charges
under the harassment in the second-degree statute.
MS. KOENEMAN confirmed that the proposed legislation would apply
to victims over the age of 16 and, for those victims under the
age of 16, charges would be filed under the child pornography
statute.
REPRESENTATIVE SNYDER questioned whether there is a possibility
of an individual being granted a protective order under the
harassment in the second-degree statute.
MS. SCHROEDER offered that, in cases of harassment charges being
filed, the state would request a no-contact order at the time of
the bail hearing.
2:48:04 PM
CHAIR CLAMAN, regarding the requirement of the household member
relationship, asked whether a next-door neighbor could be
charged with a crime of domestic violence.
MS. SCHROEDER stated that this would not fall under the proposed
legislation.
CHAIR CLAMAN posited a couple who had lived together, but since
split, and one distributed explicit pictures of the other after
the split. He questioned whether the perpetrator could be
charged with a crime of domestic violence.
MS. SCHROEDER answered that it could be a crime of domestic
violence. She explained that household members include those
who live together or those who had lived together.
CHAIR CLAMAN posited a case which involves two 17-year-old
individuals in a dating relationship, and one distributed an
explicit picture of the other. He questioned whether this
individual could be charged with a crime of domestic violence.
MS. SCHROEDER stated that the definition would include those who
are dating or who have dated. She emphasized the provision that
there would need to exist the intent to harass or annoy [the
victim].
CHAIR CLAMAN asked what bail considerations would be for someone
charged with harassment under the domestic violence statute,
compared to a non-domestic violence harassment charge.
MS. SCHROEDER answered that regarding release on domestic
violence cases, under AS 12.30.027, the main consideration is
whether conditions of release would allow contact or no contact.
CHAIR CLAMAN asked what typical bail would be set in the case of
harassment in the second degree, as a Class B misdemeanor,
considering one's criminal history.
MS. SCHROEDER answered that, in a case when the defendant has no
criminal history it would likely be an "own recognizance"
release and would likely include an order for no contact.
2:52:22 PM
REPRESENTATIVE EASTMAN expressed the understanding that, under
federal law, a misdemeanor crime of domestic violence could
result in a loss of access to firearms. He asked whether the
proposed bill would result in the same.
MS. SCHROEDER cautioned that she is not familiar with federal
law and deferred to DPS.
SERGENT HENRY offered to follow up to the committee with a
confirmed answer.
2:53:31 PM
KELLY HOWELL, Special Assistant to the Commissioner, Department
of Public Safety, provided invited testimony on HB 325. She
expressed the belief that, for a crime to amount to an
inhibition to possess or purchase firearms or ammunition, a
crime involving domestic violence would need to include an
element of force. She offered to follow up to the committee
with a confirmed answer.
REPRESENTATIVE EASTMAN questioned whether distributing images
would ever involve [the use of] force.
MS. HOWELL expressed the belief that it would not. She deferred
to the Department of Law to provide a confirmed answer.
REPRESENTATIVE EASTMAN, in subsection (6), paragraph (6) in the
proposed legislation, requested clarity on the exception for
images which do not involve nudity. In response to Chair
Claman, he confirmed that he was referring to the proposed
language involving images of a sexual act.
MS. SCHROEDER answered that the term "sexual act" is defined in
AS 11.41.470(6), and this is defined as sexual penetration or
sexual contact.
2:57:24 PM
REPRESENTATIVE VANCE questioned whether the accused would be
subject to automatic arrest under the domestic violence statute,
per the proposed legislation.
MS. HOWELL responded that crimes involving an act of domestic
violence within the preceding 12 hours would result in mandatory
arrest. She deferred the question to Sergeant Henry.
SERGEANT HENRY explained that after a crime has been reported
and an investigation reveals the existence of probable cause,
three criteria would need to be met for an arrest. He listed
those as the existence of probable cause, the crime occurred
between household members, and the crime was within the prior 12
hours. He stated that if all three had been found during the
investigation, a mandatory arrest would occur. If the alleged
crime had occurred more than 12 hours prior to the report, or it
was determined that the definition of household members did not
apply, then a mandatory arrest would not occur.
2:59:32 PM
REPRESENTATIVE CLAMAN announced that HB 325 was held over.
3:00:23 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:00 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 11 v. G 5.11.2021.PDF |
HJUD 2/25/2022 1:30:00 PM HJUD 3/4/2022 1:00:00 PM HJUD 3/11/2022 1:00:00 PM |
SB 11 |
| SB 11 Sponsor Statement v. G 2.17.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 3/4/2022 1:00:00 PM HJUD 3/11/2022 1:00:00 PM |
SB 11 |
| SB 11 Sectional Analysis v. G 2.17.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 3/4/2022 1:00:00 PM HJUD 3/11/2022 1:00:00 PM |
SB 11 |
| SB 11 Supporting Document - Supreme Court Phillips Decision 12.18.2020.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 3/4/2022 1:00:00 PM HJUD 3/11/2022 1:00:00 PM |
SB 11 |
| SB 11 Supporting Document - LISI Article 7.29.2019.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 3/4/2022 1:00:00 PM HJUD 3/11/2022 1:00:00 PM |
SB 11 |
| SB 11 Supporting Document - Community Property Trust Act.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 3/4/2022 1:00:00 PM HJUD 3/11/2022 1:00:00 PM |
SB 11 |
| SB 11 Fiscal Note JUD-ACS 2.2.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 3/4/2022 1:00:00 PM HJUD 3/11/2022 1:00:00 PM |
SB 11 |
| HB 325 v. A 2.16.2022.PDF |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 325 |
| HB 325 Sponsor Statement v. A 2.17.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM SJUD 5/16/2022 1:30:00 PM |
HB 325 |
| HB 325 Supporting Documents 2.17.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM SJUD 5/16/2022 1:30:00 PM |
HB 325 |
| HB 325 Fiscal Note LAW-CRIM 2.18.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 325 |
| HB 325 Fiscal Note DPS-DET 2.19.2022.pdf |
HJUD 2/25/2022 1:30:00 PM HJUD 5/2/2022 1:00:00 PM HJUD 5/6/2022 10:30:00 AM |
HB 325 |
| HB 172 Work Draft Committee Substitute v. W 2.16.2022.pdf |
HJUD 2/16/2022 1:30:00 PM HJUD 2/21/2022 1:00:00 PM HJUD 2/23/2022 1:30:00 PM HJUD 2/25/2022 1:30:00 PM |
HB 172 |
| HB 172 v. W Amendments #1-4 HJUD Final Votes 2.23.2022.pdf |
HJUD 2/25/2022 1:30:00 PM |
HB 172 |
| HB 172 v. W Amendment #5 HJUD 2.25.2022.pdf |
HJUD 2/25/2022 1:30:00 PM |
HB 172 |
| HB 172 v. W Amendments #1-5 HJUD Final Votes 2.25.2022.pdf |
HJUD 2/25/2022 1:30:00 PM |
HB 172 |