03/11/2014 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB366 | |
| HB235 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 366 | TELECONFERENCED | |
| *+ | HB 235 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 11, 2014
8:06 a.m.
MEMBERS PRESENT
Representative Bob Lynn, Chair
Representative Wes Keller, Vice Chair
Representative Lynn Gattis
Representative Shelley Hughes
Representative Doug Isaacson
Representative Jonathan Kreiss-Tomkins
MEMBERS ABSENT
Representative Charisse Millett
COMMITTEE CALENDAR
HOUSE BILL NO. 366
"An Act relating to reporting an involuntary mental health
commitment to the National Instant Criminal Background Check
System; and relating to relief from disabilities of a record of
involuntary commitment and an adjudication of mental illness or
mental incompetence."
- MOVED CSHB 366(STA) OUT OF COMMITTEE
HOUSE BILL NO. 235
"An Act requiring the Alaska Public Offices Commission to
maintain the confidentiality of certain proceedings, documents,
and information."
- MOVED CSHB 235(STA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 366
SHORT TITLE: INVOLUNTARY COMMITMENT
SPONSOR(s): REPRESENTATIVE(s) PRUITT
02/26/14 (H) READ THE FIRST TIME - REFERRALS
02/26/14 (H) STA, JUD
03/11/14 (H) STA AT 8:00 AM CAPITOL 106
BILL: HB 235
SHORT TITLE: CONFIDENTIALITY OF APOC COMPLAINTS
SPONSOR(s): REPRESENTATIVE(s) HIGGINS
01/21/14 (H) PREFILE RELEASED 1/10/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) STA, JUD
03/11/14 (H) STA AT 8:00 AM CAPITOL 106
WITNESS REGISTER
REPRESENTATIVE LANCE PRUITT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As prime sponsor, introduced HB 366.
MORGAN HOPSON, Staff
Representative Lance Pruitt
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 366 on behalf of
Representative Pruitt, prime sponsor.
KATHLEEN STRASBAUGH, Attorney at Law
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions as the drafter of HB
366.
NANCY MEADE, General Counsel
Alaska Court System
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
366.
SHERRE BAKER, Index Liaison Specialist
National Instant Criminal Background Check System (NICS)
Federal Bureau of Investigation (FBI)
(No address provided)
POSITION STATEMENT: Offered information regarding the FBI's
practices during the hearing on HB 366.
JAKE McGUIGAN, Director
Government Relations/State Affairs
National Shooting Sports Foundation (NSSF)
(No address provided)
POSITION STATEMENT: Testified during the hearing on HB 366.
MELISSA RING, CEO
Alaska Psychiatric Institute
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on HB 366.
REPRESENTATIVE HIGGINS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As prime sponsor, presented HB 235.
THOMAS STUDLER, Staff
Representative Pete Higgins
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
235, on behalf of Representative Higgins, prime sponsor.
PAUL DAUPHINAIS, Executive Director
Alaska Public Offices Commission (APOC)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
235.
ACTION NARRATIVE
8:06:19 AM
CHAIR BOB LYNN called the House State Affairs Standing Committee
meeting to order at 8:06 a.m. Representatives Keller, Isaacson,
Gattis, Hughes, and Lynn were present at the call to order.
Representative Kreiss-Tomkins arrived as the meeting was in
progress.
HB 366-INVOLUNTARY COMMITMENT
8:06:42 AM
CHAIR LYNN announced that the first order of business was HOUSE
BILL NO. 366, "An Act relating to reporting an involuntary
mental health commitment to the National Instant Criminal
Background Check System; and relating to relief from
disabilities of a record of involuntary commitment and an
adjudication of mental illness or mental incompetence."
8:07:00 AM
REPRESENTATIVE LANCE PRUITT, Alaska State Legislature, as prime
sponsor, introduced HB 366. He said Alaska is a state where
individuals have a pride in ownership of guns and protect their
Second Amendment right to bear arms, so there may be some
concern about a bill that proposes to place a restriction on
people's ability to purchase a weapon. He explained that the
idea behind the bill came from the National Shooting Sports
Foundation, which he indicated comprises gun manufacturers. He
related that when he was originally approached to sponsor the
legislation, he spent six weeks considering it to fully
understand the intent behind it and to ensure that it would not
infringe upon Alaska's gun ownership right. He said in
discussing the bill with others, he was told that the idea is an
understandable and a pragmatic approach to addressing current
issues.
8:08:52 AM
REPRESENTATIVE PRUITT stated that under HB 366, Alaska would be
allowed to communicate limited information, regarding
individuals who have been involuntarily committed for 30 days,
to the National Instant Criminal Background Check system (NICS)
database. It would not allow the reason for the person's
committal to be revealed. The bill also outlines an important
process by which to have the information removed, which is a key
component on which Representative Pruitt said he worked with the
National Rifle Association.
8:10:00 AM
REPRESENTATIVE PRUITT said the Federal Firearms License (FFL)
dealers would be protected under HB 366, because "it's another
layer to really assist them in making sure that they're not
selling guns to ... an individual that might not necessarily
need it." He said Alaska's process for involuntary commitment
is detailed and includes court hearings.
8:11:59 AM
MORGAN HOPSON, Staff, Representative Lance Pruitt, Alaska State
Legislature, presented HB 366 on behalf of Representative
Pruitt, prime sponsor. She stated that the proposed legislation
pertains specifically to the limited transmittal of information
from the courts to the Department of Public Safety (DPS) and the
NICS. She said this database informs the FFL dealers whether to
proceed with, delay, or deny a transaction with a customer
wishing to purchase a firearm. She said Alaska currently has
only one person listed in the NICS database who is restricted
from firearm ownership for mental health reasons. She related
that Texas has 217,582 mental health records in the database.
She indicated that 25 other states have implemented policies for
transmittal of these records.
MS. HOPSON stated that under current federal law, FFL dealers
could unknowingly sell firearms to a person who is disqualified
from a firearm [because the person's name is not in the system].
She said in 2003, [FFL dealers] in Alaska submitted 93,405
[transaction] inquiries into the NICS, which is 127 inquiries to
1,000 residents - second only to Kentucky.
MS. HOPSON stated that under HB 366, the information that would
be transmitted would be very limited; it would include the
person's name, date of birth, birthplace, and social security
number. She said all of that information would be transmitted
"if known," which she indicated was one of the factors that was
included in response to the bill sponsor's collaboration with
the court system. She said there is a committee substitute that
reflects other changes recommended by the courts. She said the
bill would also include an appeal process so that the court
could reverse its decision if the person was found later not to
be suffering from a mental illness and therefore was deemed fit
to carry a firearm. Ms. Hopson said such a reversal would
require a great deal of scrutiny and a preponderance of the
evidence. She stated, "In some other states, these decisions
can come from a department," but "here in Alaska, these would
all be full-dress hearings in a court."
8:16:53 AM
REPRESENTATIVE ISAACSON asked which section of the proposed
legislation relates to a reversal of a decision, and he asked
how the person would get the initial decision expunged from the
record.
MS. HOPSON replied that the records are sealed and made
confidential, rather than expunged. She said that is
misrepresented in statute. She said, "So, one thing that we did
when we were going through this is look at those places where
that's misstated." Ms. Hopson said the language pertaining to
reversal of decision is found in Section 4. She stated, "It
looks at the ability of the reviewing court to consider the
circumstances de novo - much after the fact - but there's also
an appeal process that can happen directly within the original
proceedings."
8:18:29 AM
REPRESENTATIVE PRUITT deferred to the bill drafter to expound
upon the answer.
8:18:50 AM
REPRESENTATIVE ISAACSON questioned what steps a person would
have to take to clear his/her name.
REPRESENTATIVE PRUITT deferred to someone from the court system.
8:19:44 AM
REPRESENTATIVE PRUITT, in response to Chair Lynn, said if
someone is involuntarily committed, it could be a result of a
person having voluntarily gone in to a hospital, for example at
the urging of a family member, and then the hospital says the
person should remain. He said in the past people could be
locked in an institution and the key would be thrown away, but
that is not done today. There is a concerted effort to return
people to society, which is why there is a 30-day involuntary
commitment period. He indicated this is how a case he knows
about occurred, but said he is sure there are multiple ways in
which a person could end up with an involuntary commitment.
CHAIR LYNN asked at what point in the process a report would be
made to the NICS.
MS. HOPSON answered, "It would only be official after the final
adjudication was handed down from the judge." She indicated
that during the period of time in which a person is being
assessed, he/she would not be allowed to possess a firearm. The
person could also be cleared of "whatever the consideration was"
and not be committed. She stated, "None of that would ever go
to NICS." She relayed her understanding that in Anchorage some
adjudications are handled by a "master," who then passes on a
recommendation to a judge; however, "the final recommendation is
the point at which this registers." She said this issue is one
of the issues that was clarified at the behest of the court
system, which was looking for a more definitive point at which
records would be transmitted.
8:24:29 AM
REPRESENTATIVE HUGHES asked for an explanation regarding the
aforementioned 30-day period.
MS. HOPSON answered that 30 days is the minimum amount of time
being involuntarily committed "that would trigger them for this
situation."
REPRESENTATIVE HUGHES asked Ms. Hopson to confirm that there are
involuntary commitments less than 30 days, which would not
trigger the transfer of the records.
MS. HOPKINS stated that was her understanding.
REPRESENTATIVE HUGHES offered her understanding that although
Texas has over 200,000 records in the system, it has not enacted
legislation - only eight states have. She asked Ms. Hopson to
confirm that Alaska needs "to change statute in order to do
that," but some other states were able to just transfer the
records without changing statute.
MS. HOPKINS responded that there are 25 states that have some
sort of transmittal process. Some states transfer to a state
database, while others transfer directly to the NICS. She said
actually the number is "a little higher than 25 states."
8:26:33 AM
REPRESENTATIVE PRUITT offered his understanding that the eight
states to which Representative Hughes referred are those that
contribute nothing to the NICS, and he said Alaska is one of the
eight.
REPRESENTATIVE HUGHES observed that some states are transferring
records to the NICS without having enacted legislation. She
asked the bill sponsor if it was correct to assume that those
states did not need to enact legislation, but that Alaska would
need to do so.
REPRESENTATIVE PRUITT, regarding the 30-day involuntary
committal period, explained there is a provision under current
statute requiring closed hearings, and the only way that
information can be released is if the family [of the person
being involuntarily committed] determines it can be made public.
He indicated that a slight change is necessary in the statute in
order for a limited amount of information to be released to the
NICS database, based on the final adjudication of the
individual.
REPRESENTATIVE HUGHES expressed concern about sealing records
rather than expunging them, and asked the bill sponsor to
explain why the records are not being expunged.
REPRESENTATIVE PRUITT deferred to Nancy Meade of the Alaska
Court System.
8:29:54 AM
REPRESENTATIVE KELLER asked the bill sponsor if, given the
choice, he had a preference between expunged and sealed.
REPRESENTATIVE PRUITT explained that it was not until he began
considering how a person's record could be cleared, should
he/she be judged by the courts to once again be eligible to
carry a firearm, that any focus was given to the ability to
remove the individual's name from the database. He deferred to
Ms. Meade for the answer as to what takes place currently.
REPRESENTATIVE KELLER requested that the bill drafter clarify
the reason for the language in Section 3.
8:33:07 AM
KATHLEEN STRASBAUGH, Attorney at Law, Legislative Legal and
Research Services, Legislative Affairs Agency, directed
attention to the proposed language of Section 3(2), and
indicated that [AS 47.30.850] seemed to be the best vehicle, not
only for providing a method for someone to ask the court to seal
his/her record, but also to "ask ... for the process that's in
the next subsection, which is a new subsection." She said the
decision about whether to remove expunging or sealing was at the
request of the court, because the court has rules about that.
She deferred to the court for further information.
REPRESENTATIVE KELLER questioned who the courts contacted.
MS. STRASBAUGH deferred to the bill sponsor.
REPRESENTATIVE KELLER offered his understanding that under
current statute, "you can move to have all court records
expunged." He said if that is not the case, it raises the
question as to whether the records will be sealed.
MS. STRASBAUGH said AS 47.30.850 is the statute under which the
sealing of records is requested, while AS 47.30.851 [in Section
4 of Version O] is "the process for [indisc. -- paper shuffling
8:35:05] disability."
8:35:31 AM
NANCY MEADE, General Counsel, Alaska Court System, responded to
prior questions. She confirmed that there are commitments of
durations other than 30 days. She relayed that 3-day
commitments are the most common, with up to approximately 2,500
being filed each year, which she indicated is an evaluation
period. She said the master in Anchorage, or judges in other
locations that do not have masters, consider the evidence and
the evaluations provided by the medical facilities and determine
whether a longer-term commitment is appropriate. She said there
can be 30-day and 90-day commitments, and the proposed
legislation would require the court to report only those
commitments 30 days and over to DPS. She said there are only
about a couple hundred of those filed per year, half of which
are granted.
8:36:54 AM
MS. MEADE, regarding expungement versus sealing, clarified that
under existing statute there already exists an option for both.
She said the language that allows the court to order either
expungement or sealing is found in Section 3, lines 16-18 [of
the original bill version]. She said the statute is rarely used
by anyone, because mental health commitment cases are
confidential. Confidential records are available only to the
parties, attorneys, the judge, and court personnel for case
processing purposes. She said a person can move to have his/her
record sealed or expunged under this statute when discharged
from a treatment facility or when their petition for commitment
is denied. She said the courts order sealing when it is
requested, rather than expungement. The definition of sealing
is much more restrictive and confidential; sealed records are
accessible only to the judge and someone with a court order, not
to assistants, clerks, or anyone else. She said sealed records
are kept sealed forever; they are not imaged onto microfiche,
like many other records are after a certain retention period.
MS. MEADE explained that the reason records are not expunged has
to do with process. She explained that the petitioners'
purposes are fully served by sealing, because "those cases
essentially disappear." If expungement was used, all the
documents related to the issue would have to be shredded. She
said, "We don't do that just because of the sort of philosophy
that something about what happened ought to be retained for some
possible reason; that destroying records is contrary to most
court policies." She reiterated that sealed records are sealed
forever, and said after a case is over "even a judge doesn't
have a reason to go back." She said, "That's the reason that
the statute allows for either, but typically we don't expunge."
She recommended deleting references to expungement in the
proposed legislation. She remarked that the court does not have
a procedure for shredding court records, which is a reason it
typically orders sealing. In response to Representative Keller,
she offered her understanding that the court has never order
expunging.
8:40:55 AM
REPRESENTATIVE ISAACSON offered his understanding that Ms. Meade
had said the court could expunge if it had procedures to do so.
He asked whether it would be the legislature or the court that
would be responsible for developing those procedures.
MS. MEADE said if there was a statute that said the court must
expunge "X," then the court would develop procedures to do so.
In response to a follow-up question, she said current statute
allows the court the option of whichever method it considers
appropriate, and she reiterated that the court has chosen to
seal records for archival purposes.
REPRESENTATIVE ISAACSON asked Ms. Meade if she was saying that
the phrase "whichever the court considers appropriate under the
circumstances" should be deleted from the original bill. He
talked about how some records get leaked, and asked if the
legislature needs to take steps to ensure the option of
expungement if it thinks some records need to be destroyed.
8:43:27 AM
MS. MEADE answered that it would be up to the legislature to
determine if some records should be destroyed; however, she
stated that "sealing does accomplish all the purposes of
expungement." She said if the legislature did pass a statute
related to expungement, then the court system would implement
corresponding procedures.
8:44:00 AM
CHAIR LYNN asked if the issue of sealing and expungement affects
the issue of reporting to the NICS.
MS. MEADE answered that she does not think it does, because
"that statute has existed for quite a while and is available to
folks right now who are released from a treatment facility or
whose petition for involuntary commitment was denied." She
reemphasized the confidential nature of sealing records, and she
ventured that because of that, people may not see the need to
"go to the next step." In response to a follow-up question, she
opined that the issue of sealing and expungement does not "go to
the heart of the bill," but said it would be up to the bill
sponsor to determine whether he believed the issue to be one of
the crucial aspects of the bill.
8:44:54 AM
REPRESENTATIVE ISAACSON asked what happens to documents when
they are expunged.
MS. MEADE answered that she thinks that is something the court
would have to work out; however, she ventured that expungement
would be "a step beyond sealing."
REPRESENTATIVE ISAACSON explained the base of his concern is how
someone gets rid of a record. He reiterated that private
information tends to leak out. He related that a man came to
his office who was involved in a worker's compensation claim and
other people's medical records were being sent to him. He said
he would like to know if expunge means to destroy, because if it
does not, then he questioned why there would be an option for
expungement or sealing. He opined that if the intent is to get
rid of a record, then it should be destroyed. Representative
Isaacson said he thinks this issue does pertain to the heart of
the matter, because if a decision can be made to remove
someone's information from the NICS, then there should be a way
to ensure the name does not get back in the system, unless by a
new circumstance.
8:48:15 AM
CHAIR LYNN commented on the possibility of records being
expunged at the court level but still existing in the NICS.
REPRESENTATIVE ISAACSON said a person's inalienable rights are
removed when he/she is involuntarily committed. He expressed
concern that if there is a reversal of that commitment, that
record should not show up again.
MS. MEADE reemphasized that sealing records makes them highly
confidential, and she related that the court has not had
breaches of sealed documents. She said she understands
Representative Isaacson's concern that that could happen. She
said Section 3 allows for expunging or sealing in two
situations: when a person is discharged from a treatment
facility or when there is a court order denying the petition for
commitment. She said it is not tied to Sections 4 and 5,
regarding relief of disability action and the report to the
NICS. She stated that when a person is released or has a
petition denied, there are other in-state governments that have
those records, for example, the API, the public defender that is
appointed, and other attorneys that are involved in the
involuntary commitments. She characterized the records held
elsewhere as tendrils, and said if the court expunged its
records, for example by burning or shredding them, there could
be an issue later on if a public defender, for example, wanted
to "go back." She opined that having the records sealed instead
of expunged is "helpful to the entire process for the future."
REPRESENTATIVE ISAACSON offered his understanding that Ms. Meade
was saying that there could be a problem expunging some records
and not others; therefore, it is better to "leave it as sealed,"
which he said "speaks to the CS."
8:51:49 AM
REPRESENTATIVE HUGHES offered her understanding that Ms. Meade
said the courts currently have the option of expungement or
sealing, but that she does not see that "here." She said a
youth who is suicidal could be involuntarily committed and end
up healthy as an adult. She expressed concern about records
being leaked, although she said she was happy to hear Ms. Meade
say that courts have a good record [of keeping records
confidential]. She ventured that it is paper records that are
being kept, and she remarked upon the amount of room that must
take. She asked if currently a person can request that his/her
records be expunged or sealed, and what would happen without
procedures in place. She asked if records that were sealed have
ever been unsealed, and, if so, what the process is for doing
so.
8:54:11 AM
MS. MEADE reiterated that the language giving the court the
choice occurs on page 3, lines 16-18. She said there is a
strict difference between the courts' definition of
"confidential" and "sealed." The records relating to mental
health are confidential, and confidential records are kept in
separate envelopes with fluorescent marking, and don't appear in
court view. About two years after a case is closed, the
confidential records are sent to the administrative archive
section for imaging. She said confidential files can be imaged,
which is different from being sealed. She stated, "This statute
gives the person who's the subject for a petition for mental
commitment the option to come in to the court and have it
sealed. Sealed is much more restrictive." She said a sealed
record is taped and retained in paper form in perpetuity. It is
rare that documents are sealed, and it is burdensome for the
court to seal records, but it is done upon request.
MS. MEADE related that the process for getting a sealed document
opened falls under Administrative Rule 37.6 and involves a
judge's consideration of the heightened sense of privacy under
confidentiality versus the requestor's reason for accessing the
case. One consideration may be the passage of time, for
example, 20 years have passed and the case is in the public's
interest. She emphasized that a petition to access a sealed
document would be extremely rare. She ventured that "there
would not be one a year."
REPRESENTATIVE HUGHES recollected that Ms. Meade had said that a
person could request that a record be sealed, but questioned
whether a person could request that a record be expunged.
MS. MEADE responded, "Well, they can use the statute and say,
'Can I have it sealed or expunged,' and the court, as a matter
of practice, can order sealing. Again, I'm going to say there's
a handful of those a year."
8:58:00 AM
REPRESENTATIVE KELLER offered his understanding that the
sponsor's concern is for there to be an appeal process to ensure
that a person's record "didn't stay in there." He indicated
that the drafted bill includes content that does not directly
pertain to the intent of the sponsor, and he questioned how that
happened. He recollected that [Ms. Meade] had indicated that AS
47.30.850, [in Section 3 of the proposed committee substitute],
"goes with" AS 47.30.851, [in Section 4]. He stated that AS
47.30.851 says nothing about sealing or expunging; it pertains
to "relief from records." He asked, "Is relief from records
equal to sealing?"
8:59:36 AM
MS. MEADE clarified what she had said was that Sections 3 and 4
do not go together; Section 3 has been on the books for a while
now, while Section 4 would be a brand new court process. She
further clarified that Section 3 does not say that a person can
get his/her records expunged if he/she has received the relief
from disability under Section 4. Ms. Meade recollected that the
bill sponsor's office had contacted her to ensure she had seen
the bill and thought what it proposed was doable by the court
system. She said after talking to a staff member who deals with
mental commitments, she put forth suggestions for improvement.
She continued as follows:
For example, where the court must immediately transmit
certain information to the Department of Public
Safety, I pointed out the practical problem that ...
the prior version had said the court must immediately
transmit the person's name, date ... of birth, social
security number, I pointed out we don't always know
it. Sometimes the folks that are involuntarily
committed are in not such good shape, might not have
family members, [and] may be living on the streets,
for example. So, that was a comment that I brought up
to the sponsor's staff and realized, well, all we can
do is report things we know, so, for example, the
phrase, "if known" was added to the bill; that makes
it that we can comply to the extent possible. So,
those are the sorts of things that I brought up,
making sure that there was a triggering event that
after which the court must immediately transmit,
because there are stages to the involuntary
commitment.
When it came to this section, I mentioned to the
sponsor that ... as long as you're in there, you
should know the court has not historically expunged.
It says "expunged or sealed", and it might be plainer
to have the statute reflect what can be done. And ...
the sponsor's office put that change into the CS.
Again, that is not closely related to the intent of
the bill, and it is up to you whether you want to have
that changed in Section 3. So, that's how the process
worked.
9:02:25 AM
MS. MEADE stated that during the process of involuntary
commitment, the police come to help handle a person who may be
out of control, and they bring the person to the Alaska
Psychiatric Institute (API) or another facility for evaluation.
Initially, a determination is made whether or not the person
needs evaluating, and the person can be involuntarily committed
for that three-day evaluation period, during which doctors and
psychiatrists become involved. After that, an assessment is
made, and the person is appointed a lawyer if he/she cannot
afford one, and the case is brought forth to a judicial officer,
who decides whether a longer-term commitment is appropriate.
Ms. Meade offered her understanding that under HB 366, it would
be only when the judicial officer makes a determination that a
30-day or longer commitment is required that the court would be
required to report to DPS.
MS. MEADE stated that Section 4 would be new statute, and should
be viewed as a relief procedure rather than an appeal procedure.
Under Section 4, long after a person has been involuntarily
committed and is recovered, he/she could come back to the court
and say, "I have this thing going on with DPS and NICS, and I
want to be relieved from it." Ms. Meade ventured that a good
period of time would have had to pass, so that the person could
prove he/she was no longer a threat to public safety. She said
the proposed statute specifically spells out what the court
could consider in determining when it could grant relief from
the person's disability, which she explained means the person's
inability to purchase a firearm through the NICS. She said she
did not see anything about sealing or expunging in Section 4.
9:05:30 AM
REPRESENTATIVE ISAACSON asked if the court would appoint an
attorney to a person who sought the relief proposed under
Section 4, if that person could not afford an attorney.
MS. MEADE answered she did not think so. She explained that
indigents that are involuntarily committed, as well as people
who are accused of crimes and whose defense is [that they are]
mentally incompetent to stand trial, can be appointed a public
defender; however, she offered her understanding that years
later, when the person comes to seek the relief from disability
under Section 4, there would be no attorney appointed.
9:06:56 AM
REPRESENTATIVE GATTIS expressed concern about the length of time
someone would have to wait to be deemed competent, even if it
was someone who just had a chemical imbalance that was fixed
right away.
9:08:27 AM
MS. MEADE relayed that the court is neutral in regard to the
neutrality of HB 366, but she said she is grateful to the
sponsor for ensuring that whatever may be written could be
implemented. She clarified that there is no time period in
which a person would have to wait to be released from the
disability. The time that had elapsed is one of the factors, in
Section 3, that the court would consider, and Section 4 would
require an individualized determination of whether the person is
no longer a threat to public safety. She said it is not
formulaic, but there are specific factors that the court would
have to consider, and time is just one of them.
9:09:37 AM
SHERRE BAKER, Index Liaison Specialist, National Instant
Criminal Background Check System (NICS), Federal Bureau of
Investigation (FBI), offered clarification regarding the NICS.
She said the only identifiers that the FBI requires for the NICS
are: name, date of birth, and sex. She said the additional
identifiers that are listed under the proposed legislation would
be "an added plus," because sometimes people have the same name
and can be misidentified if there are not enough identifiers.
She said that for each data source, the agency entering the
information is responsible for ensuring its accuracy and
validity for audit purposes. She said sealing the records would
work, but expunging would not, because there has to be
documentation held somewhere in case of a future appeal and
court order to acquire information. Information cannot go into
the NICS index without supporting documentation.
MS. BAKER stated that someone who was involuntarily committed,
who applies for relief and is judged to be of sound mind, would
be removed from the NICS index; however, under the Safe
Explosives Act, the person would "remain in the database for
explosive purposes only." She said, "So, whenever it comes to a
background check for a firearm, that's the only time that the
database is accessed; no one else will have access to that
information, and no will see that information except for that
occasion." In response to Chair Lynn, she offered a quick
explanation of the steps taken during transactions with FFL
dealers.
9:13:54 AM
JAKE McGUIGAN, Director, Government Relations/State Affairs,
National Shooting Sports Foundation (NSSF), related that NSSF is
the trade association for the firearms industry and represents
over 10,000 retailers, manufacturers, and distributors
nationwide, and over 50 companies in Alaska alone. He reported
that in Alaska, the industry contributes 600 jobs, $68 million
of economic impact, and $7 million in taxes to the State of
Alaska. He thanked the sponsor and committee for the discussion
on this issue. He said the tragedies that happened in New Town,
Connecticut, Aurora, Colorado, and Tucson, Arizona, and at
Virginia Tech shared a common denominator, which was "a mental
health component." He said the State of Connecticut has a
strict gun control law, but cut millions of dollars to mental
health funding in the state. He explained that is why the
firearms industry developed the "FixNICS" initiative. He said
the industry represents firearms manufacturers, including Smith
& Wesson, Ruger, Mossberg, Baretta, and ammunition
manufacturers, including Winchester and Federal. He said "our"
board of directors, which is run by the heads of those
companies, decided to address the FixNICS initiative. He said
his written testimony illustrates how "we" have progressed
across the country, as well as a map that shows where
legislation has been enacted and which states are not submitting
"those records." He said one of the most recent successes was
last week in South Dakota, where the House and the Senate passed
the bill, 53-17 and 26-9, respectively, and it is currently
awaiting the governor's signature. He stated, "As an industry,
the last thing that we want to have happen is to have
individuals that are federally prohibited from owning a firearm
gaining access to that." He said that is the impetus for
addressing the situation in states, including Alaska, North
Dakota, South Dakota, and Oklahoma.
9:17:09 AM
MR. McGUIGAN said the firearms industry has taken some heat for
their stance on this issue; there are some groups that are not
happy with the FixNIX initiative. In response to Chair Lynn, he
said Gun Owners of America, as well as other in-state groups,
are opposed to the initiative. He said NSSF has worked closely
with the National Rifle Association (NRA) on HB 366 and the
bills proposed in other states, namely South Dakota. He
emphasized one of the primary concerns of the NSSF and the NRA
is for those who are currently prohibited by federal law to be
in the NICS, but to have no further expansion of those
categories. He said, "We don't want to discourage anyone from
getting treatment." He stated that no matter what the
legislature may hear in opposition to HB 366, the proposed
legislation would not stop anyone from seeking treatment. He
said, "The last thing that we want is a veteran that's returning
from overseas, who may have [post-traumatic stress disorder]
(PTSD), not getting the appropriate treatment because he's
afraid of losing his firearms rights."
9:19:02 AM
MR. McGUIGAN indicated that another area of focus would be to
ensure that an individual who was involuntarily committed and is
later declared mentally healthy has no roadblock in the process
of restoring his/her 2nd Amendment rights. He continued as
follows:
So, those are the ... two major concerns that we have,
along with the NRA, on legislation like this. And
really, we as a firearms industry are always getting
chastised or yelled at when we have these situations
dealing with it has to be common ground. This is one
area that does not impact any instruments, any
firearms, any ammunition, where this may be an area
where there is common ground, where ... those who are
federally prohibited are in the system.
9:19:58 AM
MR. McGUIGAN, in response to a previous question, said Nebraska
was a state with which NSSF was involved in getting legislation
passed to require records sent to the NICS. He said Nebraska
has had the law in place for three years, but had an
administrative problem that needed correcting to ensure the
records were being transferred to the NICS. He stated, "So,
there are situations nationwide where it could be an
administrative fix, it could be a legislative fix, Alaska being
one of them where we need to fix it through legislation." Mr.
McGuigan directed attention to a map [included in the committee
packet], which shows states in green, which already have the
process in place and have been submitting records to the NICS
for years, and states in red, which have not been submitting any
records. He stated, "Alaska is one of the worst offenders when
it comes to that." Mr. McGuigan said the first state that
passed a similar bill was Louisiana, 92-2 in the House and 38-0
in the Senate, with an immediate signature by the governor, and
he noted that Louisiana is not a state that takes its Second
Amendment rights lightly. He offered to answer questions.
9:21:33 AM
REPRESENTATIVE ISAACSON, regarding veterans, asked how long
treatment for PTSD lasts, and he questioned whether the
involuntary commitment period listed should be 90 days rather
than 30.
MR. McGUIGAN said that issue has not been raised as a major
problem in other states. He explained that a veteran is not
involuntarily committed; he/she is taking the steps to get
proper treatment. He relayed that in many of the states that
have addressed similar legislation, the mental health community
has supported it. He said there are states in the Northeast
that say the Health Insurance Portability and Accountability Act
(HIPAA) does not allow them to send records to the NICS, which
he said is "not the case," because the President has put out an
order saying that sending records is not a violation of HIPAA.
One state where such a claim was made was Massachusetts;
however, he pointed out that state's legislation had support
from everyone in the mental health community both on the state
and national level. He said, "Anyone who is going to
voluntarily seek treatment would not be impacted by this
legislation."
9:24:31 AM
CHAIR LYNN noted that HB 366 was scheduled to be heard in the
House Judiciary Standing Committee.
9:25:24 AM
REPRESENTATIVE ISAACSON questioned how many times, in Alaska, a
person who has gone in for involuntary treatment has become
involuntarily committed and may, therefore, be affected under
the proposed legislation.
9:25:54 AM
MELISSA RING, CEO, Alaska Psychiatric Institute, answered that
during fiscal year 2013 (FY 13), approximately 1,500 people were
admitted on an ex parte order, which is the 3-day evaluation
period. Of those, the institute filed for a 30-day involuntary
commitment for 140 of those individuals, and of those 140, just
40 of them were actually committed during the calendar year
2013. She stated that it is rare that people come in
voluntarily to begin with, and she said she knows of none who
were switched from a voluntary admittance to a 30-day
commitment.
9:27:27 AM
REPRESENTATIVE KELLER moved to adopt the proposed committee
substitute (CS) for HB 366, Version 28-LS1172\O, Strasbaugh,
3/5/14, as a work draft. [There being no objection, Version O
was before the committee.]
9:27:45 AM
REPRESENTATIVE KELLER moved to report CSHB 366, Version 28-
LS1172\O, Strasbaugh, 3/5/14, out of committee with individual
recommendations and the accompanying zero fiscal note. There
being no objection, CSHB 366(STA) was reported out of the House
State Affairs Standing Committee.
9:28:07 AM
REPRESENTATIVE ISAACSON expressed his desire that the next
committee of referral work on the ability to reestablish a
person's right to bear arms. He mentioned those who cannot
afford an attorney possibly being excluded from the process of
relief, and said "that is the only sore spot on this bill."
9:29:12 AM
REPRESENTATIVE HUGHES opined that it is a good thing for the
safety of families and children to know that those carrying guns
are mentally fit; however, she reiterated her concern that there
is not a process for expungement, because a person should have
the assurance that his/her record won't be reopened long after
his/her health has been fully restored. She opined that the
main intent of the bill is good.
HB 235-CONFIDENTIALITY OF APOC COMPLAINTS
9:30:42 AM
CHAIR LYNN announced that the final order of business was HOUSE
BILL NO. 235, "An Act requiring the Alaska Public Offices
Commission to maintain the confidentiality of certain
proceedings, documents, and information."
9:31:00 AM
REPRESENTATIVE KELLER moved to adopt the proposed committee
substitute (CS) for HB 235, Version 28-LS1130\N, Bullard,
2/5/14, as a work draft. There being no objection, Version N
was before the committee.
9:31:18 AM
The committee took an at-ease from 9:31 a.m. to 9:32 a.m.
9:31:56 AM
REPRESENTATIVE HIGGINS, Alaska State Legislature, as prime
sponsor, presented HB 235. He said his mother taught him that a
person's "name" is the most important thing, and he said the
proposed legislation would protect a person's name, without
taking away any authority from the Alaska Public Offices
Commission (APOC). He explained that under HB 235, APOC would
be required not to make public a complaint against someone until
the commission has done its due diligence in determining whether
the complaint was valid. He indicated that APOC was already
supposed to do that.
9:33:34 AM
CHAIR LYNN posed a scenario in which a person files a complaint
against a candidate, and he asked the bill sponsor to confirm
that under HB 235, the complaint would have to be kept
confidential if it was unfounded, but if it was found to be a
legitimate complaint, then it would become public, even before
the election date.
REPRESENTATIVE HIGGINS confirmed that is correct. He said the
bill has basically "taken away special interest groups."
CHAIR LYNN asked Representative Higgins to confirm if he is
talking about the complaints from political special interest
groups.
REPRESENTATIVE HIGGINS said that is correct.
CHAIR LYNN offered his understanding that the Legislative Ethics
Committee and APOC are two separate entities, and a person could
be found guilty under one but not the other; however, a
complaint under the Legislative Ethics Committee can be kept
confidential at the expressed wish of the defendant.
REPRESENTATIVE HIGGINS offered his understanding that is
correct.
9:35:21 AM
REPRESENTATIVE KELLER opined that HB 235 is a good bill. He
observed that throughout the bill is language specifying that
the "trigger" is when APOC determines that a violation has been
made. He said he would like to know what criteria APOC uses.
9:36:07 AM
THOMAS STUDLER, Staff, Representative Pete Higgins, Alaska State
Legislature, answered questions on behalf of Representative
Higgins, primer sponsor. He stated that the determination
process is left to APOC; therefore he deferred to [the executive
director of] APOC to answer the question.
CHAIR LYNN ventured that the complexity of a case may determine
the length of an investigation.
REPRESENTATIVE HIGGINS responded that's correct.
9:36:36 AM
PAUL DAUPHINAIS, Executive Director, Alaska Public Offices
Commission (APOC), Department of Administration (DOA), prefaced
his response to Representative Keller's question by outlining
APOC's complaint process. He listed the seven appropriate
technical aspects for which APOC checks on a submitted
complaint: full name of complainant; name of person against
whom the complaint is being filed; the statute or regulation
allegedly being violated; a clear and concise description of the
fact, which if true would be a violation; the complainants
knowledge of the facts; any relevant documentation; and proof
that the complaint and the documents have been served on the
person who is being accused of wrong-doing. He said if APOC
staff accepts the complaint, letters are sent to the complainant
and the respondent, and the respondent may reply within 15 days.
An investigation is carried out and a staff report completed
within 30 days of acceptance of a complaint. The staff report
is published, and the respondent may respond to the report
within 15 days. The commission has a hearing, and the order
from the commission is produced within 10 days of the hearing.
Mr. Dauphinais stated that under APOC's current process, all the
documents are public. He said when APOC staff takes on a
complaint, it is not a decision maker in these processes, but
makes a recommendation to the commission based on the
investigation that has been held. He said under HB 235, nothing
would be public until the commission makes a decision.
9:39:10 AM
CHAIR LYNN asked Mr. Dauphinais to confirm that currently a
complaint made to APOC would be made public.
MR. DAUPHINAIS answered that it would be a public document. He
added, "We do not do press releases or anything like that."
CHAIR LYNN recollected he had seen press releases in the past,
but ventured they had been made after the decision.
MR. DAUPHINAIS offered his recollection that the only press
release he has done was an advertisement for the public member
of the commission.
9:39:51 AM
MR. STUDLER said APOC does not make press releases, which he
opined is appropriate; however, he said the second APOC makes a
document public, it is the media that spreads the word.
9:40:26 AM
MR. DAUPHINAIS, in response to Chair Lynn, confirmed that a
complaint hearing goes on the commission's meeting agenda. When
it receives a complaint and accepts it, because it is a public
document, APOC is required to have it available. He said the
media frequently checks APOC's web site to see what has been
posted recently. In response to a follow-up question, he said
the complaint number goes on the agenda, as well as the names of
the parties - complainant and respondent. When the information
is made public, it is the entire document that is made public.
9:42:10 AM
CHAIR LYNN asked Mr. Dauphinais if he held a position on the
proposed legislation.
MR. DAUPHINAIS explained he was experiencing technical
difficulties, wherein he could see the committee but could not
hear the question.
9:42:55 AM
REPRESENTATIVE KREISS-TOMKINS asked how the current complaint
processes of APOC and the Select Committee on Legislative Ethics
differ.
MR. STUDLER answer that currently a complaint to APOC is made
public, before it has been heard; under HB 235, the complaint
would remain confidential until proven valid.
REPRESENTATIVE HIGGINS explained that the proposed legislation
would also set up a consequence to leaking information: If
someone made the information public, without the commission
having done its due diligence, then the complaint would be
dismissed. He expressed hope that such a consequence would keep
accusations from being spread before they had been proven.
CHAIR LYNN remarked that some complaints are valid, while others
are part of "political game playing."
REPRESENTATIVE HIGGINS said the intent of the bill is to allow
APOC do its job.
9:44:58 AM
REPRESENTATIVE KREISS-TOMKINS asked, "So, if this bill passes,
will the APOC complaint process and the Legislative Select
Committee on Ethics complaint process [be] substantively
different [in] any way?"
REPRESENTATIVE HIGGINS answered, "No, I don't believe so."
9:45:16 AM
REPRESENTATIVE HUGHES offered her understanding that when a case
comes before APOC, that meeting is public, but the commission
refers to the two parties as complainant and respondent rather
than using names. She said she thinks the Legislative Select
Committee on Ethics hold a closed meeting so that the parties'
names can be used.
9:45:57 AM
MR. STUDLER offered his understanding that APOC's meetings are
public, but deferred to Mr. Dauphinais to answer the question
about names.
9:46:15 AM
MR. DAUPHINAIS reiterated that APOC's current process is to hold
an open meeting, and it uses people's names during the hearing.
He said those involved testify in person or telephonically. He
offered his understanding that under HB 235, the meeting would
be closed and APOC's documents would be held confidential. He
said he does not know what the Legislative Select Committee on
Ethics does.
9:46:53 AM
CHAIR LYNN remarked that APOC follows the rules set by the
legislature, and the Legislative Select Committee on Ethics is
"under regulation, which we are considering here." He
reiterated his understanding that a person could be found guilty
under one but not the other.
9:47:14 AM
REPRESENTATIVE KELLER moved to adopt the proposed committee
substitute (CS), Version 28-LS1130\N, Bullard, 2/5/14, as a work
draft. There being no objection, Version N was before the
committee.
9:47:39 AM
CHAIR LYNN, after ascertaining that there was no one else who
wished to testify, closed public testimony.
9:47:50 AM
REPRESENTATIVE ISAACSON thanked the sponsor for bringing forward
HB 235. He proffered that it would take "gamesmanship out of
the process that's intended," while offering protection to those
until proven guilty. He offered his understanding of Mr.
Dauphinais' testimony was that the proposed legislation would be
"completely doable by the department."
9:48:49 AM
REPRESENTATIVE KELLER moved to report CSHB 235, Version 28-
LS1130\N, Bullard, 2/5/14, out of committee with individual
recommendations and the accompanying zero fiscal note. There
being no objection, CSHB 235(STA) was reported out of the House
State Affairs Standing Committee.
9:49:29 AM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 9:49
p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB 366 - Version C.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 02 HB 366 - Version O.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 03 HB 366 - Sponsor Statement.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 04 HB 366 - Legal Memo 2.24.14 re Version C.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 05 HB 366 - US GAO Report Highlights.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 06 HB 366 - Fix NICS Mental Health Record Map.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 07 HB 366 - Fix NICS Facts.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 08 HB366-DPS-CRID-03-07-14.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 09 HB366-LAW-CIV-03-07-14.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 01 CSHB235 verN.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 235 |
| 02 HB235 verU.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 235 |
| 03 HB235 Sponsors Statement.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 235 |
| 04 HB 235 Section Analysis to ver.U.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 235 |
| 05 CSHB 235 Explanation of Changes.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 235 |
| 06 CSHB 235 Section Analysis to ver.N.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 235 |
| 07 HB235-DOA-APOC-03-07-14.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 235 |
| 03a HB 366 - REVISED Sponsor Statement v.O.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 10 HB 366 - Legislative Research Brief.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 11 HB366-ACS-TRC-03-07-14.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |
| 12 HB366-DHSS-API-03-07-14.pdf |
HSTA 3/11/2014 8:00:00 AM |
HB 366 |