03/01/2013 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB43 | |
| SB22 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 43 | TELECONFERENCED | |
| += | SB 22 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 1, 2013
1:33 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Fred Dyson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Lesil McGuire, Vice Chair
Senator Donald Olson
COMMITTEE CALENDAR
SENATE BILL NO. 43
"An Act relating to theft offenses; and providing for an
effective date."
- MOVED CSSB 43(JUD) OUT OF COMMITTEE
SENATE BILL NO. 22
"An Act relating to the commencement of actions for felony sex
trafficking and felony crimes involving child pornography or
indecent materials to minors; relating to the human trafficking;
relating to the crime of sexual assault; relating to the crime
of referral of sexual felonies to a three-judge panel; relating
to the definition of 'sexual unlawful contact; relating to
forfeiture for certain crimes involving prostitution; relating
felony' for sentencing and probation for conviction of certain
crimes; relating to the to the time in which to commence certain
prosecutions; relating to release for violation definition of
"sex offense" regarding sex offender registration; relating to
protective of a condition of release in connection with a crime
involving domestic violence; relating orders for stalking and
sexual assault and for a crime involving domestic violence; to
interception of private communications for certain sex
trafficking or human relating to the definition of 'victim
counseling centers' for disclosure of certain trafficking
offenses; relating to use of evidence of sexual conduct
concerning victims of communications concerning sexual assault
or domestic violence; relating to violent certain crimes;
relating to procedures for granting immunity to a witness in a
criminal crimes compensation; relating to certain information in
retention election of judges proceeding; relating to
consideration at sentencing of the effect of a crime on the
victim; concerning sentencing of persons convicted of felonies;
relating to remission of sentences relating to the time to make
an application for credit for time served in detention in a for
certain sexual felony offenders; relating to the subpoena power
of the attorney treatment program or while in other custody;
relating to suspending imposition of general in cases involving
the use of an Internet service account; relating to reasonable
sentence for sex trafficking; relating to consecutive sentences
for convictions of certain efforts in child-in-need-of-aid cases
involving sexual abuse or sex offender registration; relating to
mandatory reporting by athletic coaches of child abuse or
neglect; making conforming amendments; amending Rules 16,
32.1(b)(1), and 32.2(a), Alaska Rules of Criminal Procedure,
Rule 404(b), Alaska Rules of Evidence, and Rule 216, Alaska
Rules of Appellate Procedure; and providing for an effective
date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 43
SHORT TITLE: PROPERTY CRIMES
SPONSOR(s): SENATOR(s) COGHILL
02/04/13 (S) READ THE FIRST TIME - REFERRALS
02/04/13 (S) JUD
02/22/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/22/13 (S) Heard & Held
02/22/13 (S) MINUTE(JUD)
02/25/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/25/13 (S) Heard & Held
02/25/13 (S) MINUTE(JUD)
03/01/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 22
SHORT TITLE: CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/16/13 (S) READ THE FIRST TIME - REFERRALS
01/16/13 (S) JUD, FIN
01/30/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
01/30/13 (S) Heard & Held
01/30/13 (S) MINUTE(JUD)
02/04/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/04/13 (S) Heard & Held
02/04/13 (S) MINUTE(JUD)
02/11/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/11/13 (S) Heard & Held
02/11/13 (S) MINUTE(JUD)
02/15/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/15/13 (S) Heard & Held
02/15/13 (S) MINUTE(JUD)
02/18/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/18/13 (S) Heard & Held
02/18/13 (S) MINUTE(JUD)
02/22/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/22/13 (S) Heard & Held
02/22/13 (S) MINUTE(JUD)
02/25/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/25/13 (S) Heard & Held
02/25/13 (S) MINUTE(JUD)
03/01/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
CHUCK KOPP, Staff
Senator Fred Dyson
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Explained that Amendments 1 and 5 to SB 22.
LEE KADINGER, representing himself
Juneau, AK
POSITION STATEMENT: Testified in support of the intent of SB 22,
but expressed concern the mandatory reporting provision.
SCOOTER WELCH, Executive Director
Resource Center for Parents and Children (RCPC)
Fairbanks, AK
POSITION STATEMENT: Testified in support of the mandatory
reporting provision in SB 22.
DIANE PAYNE, Director
Justice for Native Children Project
Eagle River, AK
POSITION STATEMENT: Testified in support of the mandatory
reporting provision in SB 22.
JESSICA LAWMASTER, Executive Director
Haven House and Chair
Alaska Children Alliance
Homer, AK
POSITION STATEMENT: Testified in support of the mandatory
reporting provision in SB 22.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Legal Services Section
Department of Law (DOL)
POSITION STATEMENT: Answered questions and provided information
related to SB 22.
NANCY MEADE, General Counsel
Administrative Staff
Office of the Administrative Director
Alaska Court System
Anchorage, AK
POSITION STATEMENT: Explained proposed Amendment 13 to SB 22.
ACTION NARRATIVE
1:33:49 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:33 p.m. Present at the call to
order were Senators Wielechowski, Dyson, and Chair Coghill.
SB 43-PROPERTY CRIMES
1:34:01 PM
CHAIR COGHILL announced the consideration of SB 43. [Work draft
CSSB 43, version U, was before the committee.] He asked for a
motion to adopt Amendment 1.
SENATOR DYSON moved to adopt Amendment 1, labeled 28-LS0401\U.1.
AMENDMENT 1
OFFERED IN THE SENATE
TO: CSSB 43( ), Draft Version "U"
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1:34:59 PM
CHAIR COGHILL objected for discussion purposes.
SENATOR DYSON explained that the amendment was his response to
testimony from retailers about misdemeanor versus felony theft
limits. The amendment reduces the limits to $1,000, which is in
line with other states.
1:36:01 PM
CHUCK KOPP, Staff, Senator Fred Dyson, explained that Amendment
1 deletes the proposed upper limit of $1,500 and replaces it
with a new upper threshold of $1,000.
1:36:47 PM
CHAIR COGHILL removed his objection. Finding no further
objection, he announced that Amendment 1 passed.
1:37:03 PM
SENATOR DYSON moved to report CS for SB 43, as amended, from
committee with individual recommendations and attached fiscal
note(s).
1:37:22 PM
CHAIR COGHILL announced that without objection, CSSB 43(JUD)
moved from the Senate Judiciary Standing Committee.
SB 22-CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
1:37:31 PM
CHAIR COGHILL announced the consideration of SB 22. [Work draft
CSSB 22, version U, was before the committee.]
1:38:49 PM
SENATOR DYSON noted that Amendment 4 was before the committee
and he had an amendment to propose to that amendment.
CHAIR COGHILL suggested he withdraw the amendment and move the
amendment with the desired changes.
1:39:16 PM
SENATOR DYSON withdrew Amendment 4, labeled 28-GS1587\U.4.
1:39:48 PM
SENATOR DYSON moved to adopt Amendment 5, labeled 28-
GS1587\U.16.
AMENDMENT 5
OFFERED IN THE SENATE BY SENATOR DYSON
TO: CSSB 22(JUD), Draft Version "U"
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subsection, in performance of their occupational or
volunteer duties"
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CHAIR COGHILL objected for discussion purposes.
1:40:38 PM
CHUCK KOPP, Staff, Senator Dyson, explained that Amendment 5
removes the requirement that volunteer athletic coaches are
included as mandatory reporters. This leaves persons who are
paid or are performing occupational duties as mandatory
reporters.
CHAIR COGHILL summarized that paid professionals would be
mandated reporters, but volunteers would not.
1:45:34 PM
LEE KADINGER, representing himself, Juneau, AK, said he has been
a volunteer wrestling coach for the last 11 years and while he
supports the intent of SB 22, he is concerned about some of the
language. He relayed that he is acutely aware of the growing
issue of sex trafficking and believes that strengthening state
laws to mirror federal laws, combined with education, will help
address the issue. He discussed that he and his wife are foster
parents, and have seen the devastating effect that sexual and
physical abuse has on children.
MR. KADINGER said he has some training in youth protection, but
still finds it difficult to detect emotional or sexual abuse,
especially when he spends an hour or two [volunteering] during
wrestling practice. For this reason, he is very concerned about
the proposal to require both paid and volunteer athletic coaches
to be mandatory reporters. This imposes legal liability on moms
and dads, aunts and uncles, and brothers and sisters who many
times volunteer on short notice. These people may have no formal
training in this area and may not know what to look for, yet
they could be both criminally and civilly liable. This is an
onerous responsibility when many youth behaviors can easily be
misinterpreted. Accusations of abuse are a very serious matter
and could cost a person their job - all because an inexperienced
volunteer or coach reported something as suspicious, he said.
MR. KADINGER said SB 22 begins to address some of serious issues
facing the state, but he hopes the committee finds other means
that can have a more direct impact on the issue of preventing
child abuse.
1:54:07 PM
SCOOTER WELCH, Executive Director, Resource Center for Parents
and Children (RCPC), Fairbanks, AK, testified in support of SB
22. He noted that RCPC operates the child advocacy center called
"Stevie's Place." He said it is the responsibility of all adults
to do what is reasonable when there is suspected abuse, whether
it is sexual, physical, or otherwise. He said he has been in the
law enforcement and justice system since 1971, and is well aware
that sex offenders will find a place to abuse if steps aren't
taken to prevent it. In fact, many organizations have found how
critical it is to have two-deep leadership and to report
incidents that occur. He said he doesn't know the requirements
for organized sports and volunteers, but RCPC does background
checks on all employees and volunteers and conducts training in
the work that RCPC does as a nonprofit. He said he has been
involved in coaching for many years and he firmly believes that
if people are required to be mandatory reporters for these
organized activities, then resources should be allocated for
training.
1:56:12 PM
CHAIR COGHILL thanked Mr. Welch for his work.
1:56:52 PM
DIANE PAYNE, Director, Justice for Native Children Project,
testified in support of SB 22. She said her office is based in
Eagle River, but she works nationwide on issues that relate to
child safety and helping the system to be more responsive to
children who have been victimized. She asked the committee to
keep in mind that certain adult positions engender trust among
children, and that children are more likely to trust adults that
they see frequently. Children are more likely to tell these
people if abuse is occurring, she said.
MS. PAYNE said she appreciates the anxiety that volunteers have
when they haven't been trained to recognize signs of abuse. She
relayed that she spends a lot of time training mandatory
reporters in the state of Alaska and believes it is important to
stay focused on the fact that adults who work with children
should be free, comfortable, and required whenever possible to
report reasonable suspicions of abuse. Coaches and people who
engage with children in play and adventurous activities are role
models, and children trust them to do something if they suspect
wrongdoing. She encouraged the committee to think about the
people children have a right to trust and the environments where
there are vulnerable children.
CHAIR COGHILL asked what a reasonable training time would be for
someone to feel comfortable about recognizing signs of potential
abuse for reporting purposes.
2:01:17 PM
MS. PAYNE related that she has done training using the mandatory
reporter CD that is available online at the Office of Children's
Services (OCS) website, and it takes about 1.5 hours. The CD and
supplemental handouts will help the layperson recognize
behaviors like acting out, shutting down, withdrawing, or acting
differently. The training material also gives guidance to the
adult about how to express concern and listen to the child. She
opined that these things are a minimum that anyone who has
children or who has kids spend the night at their house should
know.
CHAIR COGHILL asked about the potential for civil and criminal
liability if a report turns out to be wrong.
MS. PAYNE explained that current law provides that if a child
has been harmed, there is a consequence for a person who has
information and fails to report. She tells people who are
current mandatory reporters that the investigators have the
skills to screen the reports and know which ones warrant a visit
to the parent or child. That's their job.
2:04:53 PM
JESSICA LAWMASTER, Executive Director, Haven House and Chair,
Alaska Children Alliance, highlighted the important nature of
the relationship between a coach and athlete. She reported that
in over 90 percent of child sexual abuse cases the perpetrator
is somebody the child knows and trusts. As a child forensic
interviewer, she knows that children do seek out safe adults,
including coaches. She highlighted that child advocacy centers
statewide have acknowledged the gap that coaches are not
mandated reporters. She pointed out that the bill only asks
coaches to report reasonable suspicions of abuse, and her
experience is that not every report rises to the level of an
investigation. There is no harm in making a report that
investigators screen out; it is better to be safe than sorry.
She urged the committee to make coaches mandatory reporters.
2:07:47 PM
CHAIR COGHILL mentioned the concern that some people would be
less willing to serve or too willing to report out of fear that
they'll be held accountable. He asked if that's a problem for
current mandatory reporters.
MS LAWMASTER said her organization has a policy that volunteers
are required to report reasonable suspicions and she hasn't had
the experience that volunteers are less willing to serve.
Conversations with various representatives of law enforcement,
other child advocacy centers, and OCS indicate that mandatory
reporting isn't a deterrent. She would have concerns if they
were deterred.
2:09:58 PM
CHAIR COGHILL asked if the Department of Law had a position on
the issue.
2:10:09 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law (DOL), Juneau, AK,
clarified that a person does not have to report unless there is
reasonable suspicion that a child suffered harm. This is more
than seeing a bruise on a child's leg during soccer practice,
because the law doesn't hold people to that tough a standard,
she said. For criminal liability, it is a knowing standard,
which is that the person knows or should have known. She
suggested the committee think about whether coaches should have
to abide by the knowing standard. She also pointed out that AS
47.17.050 provides immunity for a person who makes a good-faith
report, but is mistaken.
MS. CARPENETI explained that volunteer coaches were included as
mandatory reporters as part of the governors effort to reduce
child abuse and neglect, sexual abuse, and sexual assault. The
Coaching Boys into Men program recognizes that volunteer coaches
spend a great deal of time working with children and that they
develop special relationships. For this reason, the
administration believes these people should be mandatory
reporters. The law provides protections in terms of when a
person has to report and the culpable mental state. She noted
that a computer search for cases prosecuted under AS 47.17.068
found only one referral and Department of Law declined to
prosecute that case.
CHAIR COGHILL said the likely result of this change is that
training would become mandatory for volunteers.
MS. CARPENETI agreed with earlier testimony that training is
already available. She recalled that when she volunteered for
peewee basketball, Parks and Recreation in Juneau provided a
forum for volunteers. She suggested that this training could be
added to that type of forum or people could be directed to a
website to inform themselves.
SENATOR WIELECHOWSKI asked if people who volunteer for a school
district would have to be trained and report under AS 47.17.022
(a).
(a) A person employed by the state or by a school
district who is required under this chapter to report
abuse or neglect of children shall receive training on
the recognition and reporting of child abuse and
neglect
2:14:33 PM
MS. CARPENETI relayed that someone from the school athletic
association informed her that coaches with direct supervisory
authority over kids receive training. This includes volunteers.
SENATOR DYSON said his office did some research on the history
of volunteer reporting and found that in 1985, a governor's bill
sought to broaden the teacher and administrator category of
mandatory reporters to include "employees and volunteers of
private and public schools," but the legislature removed that
provision. That governor also sought to broaden the category of
licensed daycare providers to include all childcare providers.
That change succeeded and became law. The definition of
childcare provider clarifies that it means an adult employee of
an organization who provides care and supervision for
compensation. Only three states specifically require volunteer
coaches to report. At that time, mandatory reporters were people
who were paid, and almost everyone on the list, but childcare
providers, was certified or licensed. He said their research
also found only Louisiana, Virginia, and Washington specifically
require coaches or organized volunteers to report.
SENATOR DYSON said he hopes everyone realizes that everyone can
report, and that a report from a mandatory reporter is not given
more weight. AS 11.56.765(a), which is failure to report a
violent crime committed against a child, says that any person
who knows or reasonably should have known is required to report
any one of a list of crimes against a child. He emphasized that
that makes everyone in Alaska a mandatory reporter. He asked Ms.
Carpeneti if she had any comments.
2:19:06 PM
MS. CARPENETI agreed that everybody should consider him or
herself a mandatory reporter, but a person that has a mandatory
duty might look more carefully. She noted that Title 11 and
Title 47 have the same culpable mental state.
CHAIR COGHILL said his expectation is that paid coaches will
require volunteers to get training, and according to Ms. Payne,
it could be done in 1.5 hours.
2:21:03 PM
SENATOR WIELECHOWSKI said he, too, learned from the website
child welfare.gov that four states have designated faculty,
administrators, volunteers and others as mandatory reporters.
However, he was surprised to learn that 18 states and Puerto
Rico require any person who suspects child abuse or neglect to
report. He said it seems to be a trend over the last 20 years to
make everyone a mandatory reporter. He said he shares Senator
Dyson's concerns, but he would vote no on the amendment.
SENATOR DYSON pointed out that Alaska is one of the 18 states
that requires everyone to be a mandatory reporter.
SENATOR WIELECHOWSKI said he didn't read the section that way.
SENATOR DYSON pointed out that AS 11.56.765 says that a person
is bound to report if the person sees the abuse or reasonably
should know it occurred.
MS. CARPENETI clarified that the crime in AS 11.56.765 only
applies to the most serious crimes. She suggested the committee
not worry too much about civil liability because the immunity
section in Chapter 47.17 provides protection.
CHAIR COGHILL said he struggled with the issue, but was going to
agree with the governor and vote against the amendment.
MS. CARPENETI clarified that the immunity applies to making a
good faith report.
2:27:31 PM
SENATOR WIELECHOWSKI suggested providing the next committee of
referral with research about how it's working in the 18 states
that have the reporting requirement for everyone. He said the
legislature certainly doesn't want to discourage volunteers and
potentially exposing them to liability.
CHAIR COGHILL asked Senator Dyson if he would be willing to
follow the research on that.
SENATOR DYSON said he probably would, but he didn't think that
requiring athletic volunteers to be mandatory reporters was
consistent with what is required of all the other volunteers
that are around children.
CHAIR COGHILL asked what volunteers, other than coaches, work
with groups of children.
SENATOR DYSON named Sunday school teachers
CHAIR COGHILL noted that he had done background checks on Sunday
school teachers, but his understanding is that they are not
mandatory reporters.
SENATOR DYSON also named Scouts, Boys and Girls Club, and
Campfire Girls.
CHAIR COGHILL asked if the governor would be willing to
investigate making mandatory reporters of all volunteers who
work with groups of children.
MS. CARPENETI said she would bring it to the attention of the
Governor's office and have a conversation.
CHAIR COGHILL said he now agreed with Senator Dyson.
2:30:08 PM
A roll call vote was taken. Senators Dyson and Coghill voted in
favor of Amendment 5 and Senator Wielechowski voted against it.
Therefore, Amendment 5 passed by a 2:1 vote.
SENATOR WIELECHOWSKI raised the procedural question of how many
votes are required to pass an amendment.
CHAIR COGHILL said a majority of those present can pass an
amendment.
2:31:18 PM
At ease
2:34:56 PM
CHAIR COGHILL reconvened the meeting and relayed that he checked
with Mr. Gardner, the director of Legal Services, and he
confirmed that a majority of those present can pass an
amendment. Therefore, Amendment 5 passed.
2:35:20 PM
CHAIR COGHILL moved Amendment 6, labeled 28-GS1587\U.6
AMENDMENT 6
OFFERED IN THE SENATE
TO: CSSB 22(JUD), Draft Version "U"
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SENATOR DYSON objected for purposes of an explanation.
CHAIR COGHILL explained that this requires [under AS
12.30.016(e)(4) and AS 12.30.027(a)(4)] that a monitoring
program with a global positioning system (GPS) device will be
active. He offered his perspective that this was reasonable if
it was a safety issue. Paying for it is discretionary just as
the application of this provision is discretionary. He asked Ms.
Carpeneti if she had any comment.
2:36:25 PM
MS. CARPENETI clarified that the Department of Corrections (DOC)
had yet to develop the procedures for the GPS monitoring system,
and requiring an active system potentially limits the choices
DOC can make. For example, the Econ 1 monitoring system is
passive until the defendant moves into an exclusionary zone, at
which time it becomes active. She posited that the amendment has
the potential to exclude a better and less expensive system.
SENATOR WIELECHOWSKI stated support for the amendment, because
it sends a message. He opined that passive monitoring is a waste
if the idea is to protect somebody from stalking. He said his
intent is for the system to be active at the time the person
violates a condition of probation or parole.
CHAIR COGHILL asked Senator Dyson if he had any comment.
SENATOR DYSON remarked that in these circumstances he finds it
almost inconceivable that DOC would use a system that wouldn't
protect the victim in real time. However, he does appreciate
DOL's position about using a term that could potentially limit
technologies in the future.
CHAIR COGHILL offered his understanding that the amendment would
narrow the possibilities that DOC could consider.
SENATOR DYSON said he wants DOC to use the best technology
available to protect victims in real time, but he acknowledges
that there may be economic limits.
2:40:06 PM
CHAIR COGHILL withdrew Amendment 6, 28-GS1587\U.6. He offered
his belief that an active system would more likely than not be
used if victim safety is a concern.
MS. CARPENETI said her assumption was that the system would be
active.
CHAIR COGHILL said the idea is that DOC will use the most active
system it can get, but it should have discretion to make the
determination. If one type of monitoring is mandated, it may be
incorrect.
SENATOR DYSON encouraged the committee not to use terms like
"active" because it might become a term of art. The idea is for
DOC to use the most effective real time monitoring system.
2:41:29 PM
CHAIR COGHILL moved to adopt Amendment 7, labeled 28-GS1587\U.7.
AMENDENT 7
OFFERED IN THE SENATE
TO: CSSB 22(JUD), Draft Version "U"
Page 9, line 19, following "trial":
Insert ", or at a later time as the court may,
for good cause, permit"
Page 9, line 20, following "may":
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Insert "Except for good cause, the"
SENATOR DYSON objected for purposes of an explanation.
CHAIR COGHILL explained that this relates to evidence that is
admitted.
2:42:28 PM
MS. CARPENETI affirmed that this pertains to the rape shield
law. She added that DOL's concern relates to what is "good
cause" although it can be up to the discretion of the judge.
CHAIR COGHILL announced that without objection, Amendment 7
passed.
2:42:59 PM
CHAIR COGHILL moved Amendment 8, labeled 28-GS1587\U.8.
AMENDENT 8
OFFERED IN THE SENATE
TO: CSSB 22(JUD), Draft Version "U"
Page 1, lines 9 - 10:
Delete "relating to procedures for granting
immunity to a witness in a criminal proceeding;"
Page 2, line 20:
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Page 9, line 30, through page 10, line 20:
Delete all material.
Renumber the following bill sections accordingly.
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35"
Insert "Sections 2 - 14, 18, 19, 23, 24, and 28 -
33"
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Insert "Sections 15, 20 - 22, 25, and 26"
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SENATOR DYSON objected for discussion purposes.
CHAIR COGHILL explained that this removes the section relating
to granting immunity to a witness in a criminal proceeding who
is mandated to appear before a judge. He informed Ms. Carpeneti
that he was open to discussion on the issue.
MS. CARPENETI said the problem arises in serious cases, such as
murder, where the judge finds a privilege for the witness and
tells the prosecution if it doesn't grant immunity to that
witness, he/she will dismiss the murder case against the
defendant. Because DOL wants to make the best decision possible
about granting immunity to a witness, it believes the judge
should listen to the witness him/herself and then make findings
that an appellate court can review. She noted that Mr. Svobodny
expressed hope that if the committee doesn't adopt the proposed
changes in Section 16, that it would consider leaving Section 17
in the bill. This section provides that when the judge decides
the witness has a Fifth Amendment privilege, he/she will make
written findings so it can be reviewed by a higher court.
CHAIR COGHILL noted that the ACLU raised the question of how to
make an appeal in the middle of a case that is at all timely.
MS. CARPENETI highlighted that the courts handle many cases on
an expedited basis.
CHAIR COGHILL said his concern in this situation is that there
seems to be huge opportunity for intimidation of the witness.
MS. CARPENETI said the only people in the in-camera proceeding
are the judge, the witness, and witness's lawyer who is there to
defend the witness. It's important for the judge to have as much
information as possible to make the decision, and the
credibility of the witness is a critical component. Right now,
the witness might not even appear at the hearing and that
removes a part of fact finding that should be required so a
court can make the best decision possible.
2:49:06 PM
CHAIR COGHILL requested additional discussion of Section 17 and
the interlocutory appeal.
MS. CARPENETI explained that the witness seeks immunity because
he/she is worried that their testimony would support a
conviction for a crime. Section 17 requires the judge to explain
in writing the real or substantial danger that the proffer or
testimony of the witness would support a conviction. It also
provides the opportunity for the state to bring an immediate,
interlocutory appeal of that one judge's decision. She said that
most superior court judges' decisions are subject to review, but
without this provision, there is no other way to get a review.
CHAIR COGHILL offered his perspective that an individual is free
until the state can show reason why they shouldn't be free, and
this gives the state more horsepower over that individual. He
said he was open to suggestion if the committee wanted to look
at it further.
SENATOR WIELECHOWSKI stated support for the amendment. He
pointed out that without the amendment the bill proposes to
change bedrock constitutional law to require people to testify
against themselves. Then Section 17 says the findings of the
court are sealed, but if there is an interlocutory appeal of the
court's decision, it is unclear how that sealed information
would not be disclosed.
2:52:47 PM
CHAIR COGHILL found no objection, and announced that Amendment 8
passed.
2:54:19 PM
At ease
2:54:51 PM
CHAIR COGHILL reconvened the meeting and moved Amendment 9,
labeled AM-1, 2/19/2013, Carpeneti.
AMENDMENT 9
OFFERED IN THE SENATE
TO: CSSB 22(JUD), Draft Version "U"
Page 2, line 20:
Delete "SECS. 22 AND 23"
Insert "SECS. 23 AND 24"
Page 3, line 6:
Delete "sec. 22"
Insert "sec. 23"
Page 3, line 7:
Delete "sec. 23"
Insert "sec. 24"
Page 6, following line 6:
Insert a new bill section to read:
"*Sec. 8. AS 11.41.432 is amended by adding a new
subsection to read:
(c) It is an affirmative defense to a crime
charged under AS 11.41.425(a)(5) or
11.41.427(a)(4) that the offender and the person
on probation or parole had, before the person was
placed on probation or parole, a dating
relationship or a sexual relationship, and the
relationship continued until the date of the
alleged offense."
Renumber the following bill sections accordingly.
Page 22, line 25:
Delete "Sections 2-14, 20, 21, 25, 26, and 30-35"
Insert "Sections 2-15, 21, 22, 26, 27, and 31-36"
Page 22, line 27:
Delete "Sections 15-17, 22-24, 25, 27, and 28"
Insert "Sections 16-18, 23-25, 28 and 29"
Page 22, line 29:
Delete "Section 18"
Insert "Section 19"
Page 22, line 31:
Delete "Section 19"
Insert "Section 20"
SENATOR DYSON objected for discussion purposes.
2:55:31 PM
MS. CARPENETI explained that this creates an affirmative defense
for a probation or parole officer to have sexual relations with
a person on probation or parole if they had a preexisting dating
or sexual relationship and the relationship continued until the
date of the alleged offense.
CHAIR COGHILL found no objection, and announced that Amendment 9
passed.
2:56:24 PM
SENATOR DYSON asked the practical effect of the first three
sections of the amendment.
MS. CARPENETI said they have no substantive effect; they conform
the numbers of the bill sections.
CHAIR COGHILL stated his intention to have a committee
substitute (CS) drafted that incorporates these amendments so
members could examine the bill in its entirety before it moves
from committee.
2:57:18 PM
CHAIR COGHILL moved Amendment 10, labeled 28-GS1587\U.9.
AMENDMENT 10
OFFERED IN THE SENATE
TO: CSSB 22(JUD), Draft Version "U"
Page 12, line 13, following "combination,":
Insert "has"
Page 12, line 14:
Delete "has"
Page 12, line 15:
Delete "does not have a history"
Insert "a history free"
Page 12, line 21:
Delete "of law by a showing that"
Insert "if"
Page 12, line 22, following "combination,":
Insert "has"
Page 12, line 23:
Delete "has"
Page 12, line 24:
Delete "does not have a history"
Insert "a history free"
SENATOR DYSON objected for discussion purposes.
SENATOR COGHILL explained that Sections 22 and 23 go to the
Collins case, and the amendment seeks to state in the positive
the circumstances under which a court may refer a case to a
three-judge panel. He read Sections 22 and 23, including the
language in the proposed Amendment 10 as follows:
*Sec.22. AS 12.55.165 is amended by adding a new
subsection to read:
(c) A court may not refer a case to a three-judge
panel under (a) of this section if the defendant
is being sentenced for a sexual felony under AS
12.55.125(i) and the request for the referral is
based on the claim that the defendant, either
singly or in combination has
(1) Prospects for rehabilitation that are
less than extraordinary; or
(2) A history free of unprosecuted,
undocumented, or undetected sexual offenses.
Sec. 23. AS 12.55.175 is amended by adding a new
subsection to read:
(f) A defendant being sentenced for a sexual
felony under AS 12.55.125(i) may not establish,
nor may the three-judge panel find under (b) of
this section or any other provision of law, that
manifest injustice would result from imposition
of a sentence within the presumptive range if the
defendant, either singly or in combination has
(1) Prospects for rehabilitation that are
less than extraordinary; or
(2) A history free of unprosecuted,
undocumented, or undetected sexual offenses.
He noted the suggestion to insert in Section 22, page 12, line
12, the word "solely" so the phrase would read, "request for the
referral is based solely on the claim."
3:00:09 PM
MS. CARPENETI said she worked with Mr. Steiner on the proposal
to allay his concerns.
CHAIR COGHILL found no objection to the [conceptual] amendment
to Amendment 10, as described above, and it was adopted.
He noted that DOL also suggested a change to AS 12.55.175 in
Section 23.
MS. CARPENETI explained that the suggestion in Section 23 on
page 12, line 21, is to insert the phrase "based solely on the
claim that" between "presumptive range" and "the defendant" and
remove the word "if." The phrase would read, "manifest injustice
would result from imposition of a sentence within the
presumptive range based solely on the claim that the
defendant,".
CHAIR COGHILL moved the second conceptual amendment to Amendment
10, as described above.
SENATOR WIELECHOWSKI asked Ms. Carpeneti if she worked on this
suggestion with Mr. Steiner.
MS. CARPENETI said yes.
3:01:31 PM
CHAIR COGHILL found no objection and announced that the second
conceptual amendment was adopted, and Amendment 10 was before
the committee. Finding no objection, he announced that Amendment
10 was adopted.
3:01:59 PM
CHAIR COGHILL moved Amendment 11, labeled 28-GS1587\U.11.
AMENDMENT 11
OFFERED IN THE SENATE
TO: CSSB 22(JUD), Draft Version "U"
Page 21, line 6:
Delete "The""
Insert "If the crime involved a victim, the"
SENATOR DYSON objected for discussion purposes.
SENATOR COGHILL asked Ms. Carpeneti for an explanation.
MS. CARPENETI said this Court Rule amendment clarifies that the
court may not accept a presentence report if it does not include
a victim's impact statement or consider the harm done to the
victim.
CHAIR COGHILL found no objection and announced that Amendment 11
passed.
3:03:21 PM
CHAIR COGHILL moved Amendment 12, labeled 28-GS1587\12.
AMENDMENT 12
OFFERED IN THE SENATE
TO: CSSB 22(JUD), Draft Version "U"
Page 14, following line 4:
Insert a new bill section to read:
"* Sec. 26. AS 18.65.865(b) is amended to read:
(b) The Alaska Court System shall prepare forms
for petitions and protective orders and instructions
for their use by a person seeking a protective order
under AS 18.65.850 - 18.65.860. The forms must conform
to the Alaska Rules of Civil Procedure, except that
information on the forms may be filled in by legible
handwriting. Filing fees may not be charged in any
action seeking only the relief provided in
AS 18.65.850 - 18.65.870. Each protective order form
must contain the following warning in boldface type:
"Violation of this order may be a misdemeanor,
punishable by up to one year of incarceration and a
fine of up to $10,000 [$5,000].""
Renumber the following bill sections accordingly.
Page 22, line 25:
Delete "26, and 30 - 35"
Insert "27, and 31 - 36"
Page 22, line 27:
Delete "27, and 28"
Insert "28, and 29"
SENATOR DYSON objected for discussion purposes.
3:04:20 PM
At ease
3:04:38 PM
CHAIR COGHILL reconvened the meeting and asked Ms. Carpeneti to
explain the proposed amendment to AS 18.65.865.
3:04:48 PM
MS. CARPENETI said that Section 26 of version U is a conforming
amendment. She explained that violation of certain provisions of
domestic violence protective orders can be a misdemeanor. In the
past few years, the legislature raised the maximum fine for a
class A misdemeanor from $5,000 to $10,000. The amendment to AS
18.66.130(d) conforms the warning to current law. Amendment 12
does the same thing and conforms the law to another change in
the protective orders for stalking and sexual assault that are
not necessarily domestic violence.
SENATOR DYSON removed his objection.
CHAIR COGHILL found no objection and announced that Amendment 12
passed.
3:06:12 PM
At ease
3:06:39 PM
CHAIR COGHILL reconvened the meeting and moved Amendment 13, 28-
GS1587\15
AMENDMENT 13
OFFERED IN THE SENATE
TO: CSSB 22(JUD), Draft Version "U"
Page 15, lines 29 - 30:
Delete "The information shall include the judge's
compliance with AS 12.55.025(a)(5) when imposing
sentence on persons convicted of felony offenses."
Insert "The information may include the judge's
consideration of victims when imposing sentence on
persons convicted of felony offenses where the
offenses involved victims."
SENATOR DYSON objected for discussion purposes.
CHAIR COGHILL asked Ms. Carpeneti to describe the amendment.
MS. CARPENETI noted that the Department of Law has concerns with
the amendment and suggested that Ms. Meade provide an
explanation.
3:07:15 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, Anchorage, AK,
stated that the court system considers the proposed language an
improvement. It gives the judicial council discretion to avoid
reporting unsubstantiated information about a judge, but still
allows the council to publicize information about a judge when
there are substantiated reports that the judge is not
considering victims appropriately at sentencing. It also serves
to heighten awareness among judges about the importance of
considering victim information at sentencing.
CHAIR COGHILL read the three criteria a judge has to consider
under AS 12.55.025(a)(5):
(5) in the case of a conviction for a felony offense,
information assessing
(A) the financial, emotional, and medical effects
of the offense on the victim;
(B) the need of the victim for restitution; and
(C) any other information required by the court.
He offered his understanding that DOL wants to make sure that
judges consider these factors when imposing a sentence.
3:09:46 PM
MS. CARPENETI said that DOL has no interest in requiring the
judicial council to publish information about judges that is
inaccurate or unsubstantiated, but does want to require the
judicial council to report information it finds accurate about
how a judge follows the law in terms of considering the harm
done to victims when imposing sentence. The concern is that the
proposed language may not be strong enough to compel judges to
consider victims when imposing sentence.
3:10:40 PM
SENATOR WIELECHOWSKI asked Ms. Meade if the language that
Amendment 13 proposes to delete is unworkable for the court
system.
MS. MEADE said it would be more accurate to say it is unworkable
for the judicial council, but the requirement to provide data
would be difficult for both organizations.
SENATOR WIELECHOWSKI characterized Amendment 13 as reasonable.
He said what the administration is trying to do is laudable, but
the proposal is unworkable.
3:11:19 PM
CHAIR COGHILL asked Ms. Carpeneti what difficulties she foresees
with regard to annual reporting requirements.
MS. CARPENETI said the problem is that it says the evaluation
"may" include this information. She offered to work with Ms.
Meade on acceptable language.
CHAIR COGHILL asked if it would be acceptable to replace the
word "may" with "shall" in the amendment.
MS. CARPENETI said yes.
CHAIR COGHILL said he intended to bring a CS on Monday based on
the amendments passed, but he was willing to leave this
amendment open.
3:13:55 PM
MS. MEADE pointed out that the word "may" serves several
purposes, one of which is that it is not applicable to all
judges because some judges only do civil cases. The proposed
language provides discretion so problems with victims in felony
sentencing would be reported, but if there was not a problem or
it was not applicable to a certain judge, there would not be a
pro forma statement in the information that there were no
problems. She agreed to work with Ms. Carpeneti on acceptable
language.
3:14:57 PM
CHAIR COGHILL withdrew Amendment 13, and noted that the original
language would appear in the forthcoming CS.
3:15:28 PM
CHAIR COGHILL asked Ms. Carpeneti to explain proposed Amendment
14.
3:15:37 PM
MS. CARPENETI explained that the change in the rape shield
provision in Section 15 on page 9 regarding time limits and
sexual conduct of the victim after the alleged offense affects
Rule 404(a), Alaska Rules of Evidence because of the time.
3:16:07 PM
CHAIR COGHILL moved Amendment 14, labeled AM-2, 1/25/13,
Carpeneti.
AMENDMENT 14
OFFERED IN THE SENATE JUDICIARY COMMITTEE
TO: CSSB 22(JUD), 28/LS1587\U
Page 2, line 14:
Delete "Rule"
Insert "Rules 404(a) and"
Page 22, line 22:
Insert a new bill section to read:
"*Sec. 44. The uncodified law of the State of Alaska
is amended by adding a new section to read:
INDIRECT COURT RULE AMENDMENT. AS 12.45.045(a),
amended by sec. 15 of this Act, has the effect of
changing Rule 404(a), Alaska Rules of Evidence, by
providing, with some exceptions, that a defendant must
request admission of certain evidence about the
complaining witness after the alleged offense."
Renumber the following bill sections accordingly.
Page 23, following line 1:
Insert a new bill section to read:
"*Sec. 44. The uncodified law of the State of Alaska
is amended by adding a new section to read:
CONDITIONAL EFFECT. AS 12.45.045(a), enacted by
sec. 15 of this Act, takes effect only if sec. 44 of
this Act receives the two-thirds vote of each house
required by art. IV, sec. 15, Constitution of the
State of Alaska."
Renumber the following bill section accordingly.
SENATOR DYSON objected for discussion purposes.
3:17:26 PM
SENATOR WIELECHOWSKI clarified that this takes into
consideration the amendments that the committee passed adding
the exceptions for good cause.
MS. CARPENETI agreed.
SENATOR DYSON removed his objection.
CHAIR COGHILL found no further objection, and announced that
Amendment 14 passed.
CHAIR COGHILL noted that Amendment 13 was a lingering question
and then informed the committee that he would order a CS based
on the amendments that passed. It would be available either
Monday, April 1 or Tuesday, April 2.
[SB 22 was held in committee.]
3:18:02 PM
There being no further business to come before the committee,
Chair Coghill adjourned the meeting at 3:18 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Letter from Alaska Women's Lobby.pdf |
SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Letter from CDVSA Citations.pdf |
SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| SB0022A.pdf |
SJUD 1/30/2013 1:30:00 PM SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Sectional -- SB 22.doc |
SJUD 1/30/2013 1:30:00 PM SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Letter from ACLU.pdf |
SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Cover letter from Gov and fiscal notes.pdf |
SJUD 1/30/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| CS for SB 22 JUD.pdf |
SJUD 2/18/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Final Sectional for SB 43.docx |
SJUD 2/22/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 43 |
| Felony Theft bill.pdf |
SJUD 2/25/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 43 |
| FredMeyerTestimonySB43.doc |
SJUD 2/25/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 43 |
| Sponsor Statement Final.pdf |
SJUD 3/1/2013 1:30:00 PM |
SB 43 Sponsor Statement |
| Statistics from Alaska Court.pdf |
SJUD 3/1/2013 1:30:00 PM |
SB 43 Stats from Court |
| Graph of felony thefts in US.pdf |
SJUD 3/1/2013 1:30:00 PM |
SB 43 Graphs of Felony Thefts in US |
| Amendment U 14 human trafficking.pdf |
SJUD 3/1/2013 1:30:00 PM |
SB 22 Amendments |
| Amendments by Coghill.pdf |
SJUD 3/1/2013 1:30:00 PM |
SB 22 Amendments from Senator Coghill |
| Amendment DOL Affirmative Defense.pdf |
SJUD 3/1/2013 1:30:00 PM |
Amendment from Law |
| Amendment Dyson - Mandatory Reporting.pdf |
SJUD 3/1/2013 1:30:00 PM |
SB 22 Amendments |