Legislature(2001 - 2002)
05/02/2001 05:17 PM Senate JUD
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+ teleconferenced
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
May 2, 2001
5:17 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator John Cowdery
Senator Gene Therriault
MEMBERS ABSENT
Senator Dave Donley, Vice Chair
Senator Johnny Ellis
COMMITTEE CALENDAR
HOUSE BILL NO. 187
"An Act relating to the destruction, desecration, and vandalism of
cemeteries and graves."
MOVED SCS HB 187(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 106(L&C) am
"An Act relating to the authorizations for certain state financial
institutions of certain powers and limitations; relating to
confidential records of depositors and customers of certain
financial institutions; relating to the examination of certain
institutions subject to AS 06; relating to the Alaska Banking Code,
Mutual Savings Bank Act, Alaska Small Loans Act, and Alaska Credit
Union Act; amending Rule 45, Alaska Rules of Civil Procedure, Rules
17 and 37, Alaska Rules of Criminal Procedure, and Rule 24, Alaska
Bar Rules; and providing for an effective date."
MOVED SCS CSHB 106(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 214(L&C)
"An Act relating to a civil action against a person under 21 years
of age who enters premises where alcohol is sold or consumed."
MOVED CSHB 214 (L&C) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 210(JUD) am
"An Act relating to sexual assault and sexual abuse of a minor."
MOVED CSHB 210(JUD) am OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 102(JUD)
"An Act relating to the theft of propelled vehicles."
MOVED CSHB 102(JUD) am OUT OF COMMITTEE
SENATE BILL NO. 210
"An Act relating to the constitutional right to privacy."
MOVED CSSB 210(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
No previous action
WITNESS REGISTER
Ms. Lori Backes
Staff to Representative Whitaker
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced HB 187
Mr. Terry Elder, Director
Division of Banking, Securities & Corporations
Department of Community & Economic Development
PO Box 110807
Juneau, AK 99811-0807
POSITION STATEMENT: Testified on HB 106
Ms. Marjorie Vandor, Assistant Attorney General
Civil Division
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified on HB 106
Representative Kevin Meyer
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 214
Mr. O.C. Madden
Brown Jug
No address furnished
POSITION STATEMENT:
Mr. Gerald Luckhaupt, Attorney
Legislative Legal & Research Services
Legislative Affairs Agency
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified on HB 210
Mr. Blair McCune
Alaska Public Defender
No address furnished
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 210
Ms. Trisha Gentle, Executive Director
Council on Domestic Violence & Sexual Assault
Department of Public Safety
PO Box 111200
Juneau, AK 99811-1200
POSITION STATEMENT: Supported HB 210
Representative Pete Kott
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 102
Senator Pete Kelly
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 210
ACTION NARRATIVE
TAPE 01-28, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order at 5:17 p.m. Chairman Taylor announced the first order of
business would be HB 187.
HB 187-VANDALISM OF CEMETERIES & GRAVES
Lori Backes, staff to Representative Whittaker, testified that
there are no statutes relating to vandalism or desecration of
modern cemeteries and memorials. Although acts of vandalism are
punishable under criminal mischief statutes, the degree of crime
centers around the monetary value of the damage and doesn't address
the personal insult and emotional damage such acts inflict on
individuals, families, communities or tribes. HB 187 clearly states
that if a person damages, defaces or desecrates a cemetery, tomb,
grave, memorial or its contents it is a crime of criminal mischief
in the second degree. This is regardless of whether or not the tomb
grave or memorial is in a cemetery or appears to be abandoned lost
or neglected. It would also be a crime of criminal mischief in the
second degree if an individual removes human remains or associated
items from a cemetery, tomb, grave or memorial.
SENATOR COWDERY recalled the vandalism that occurred when he was in
charge of the downtown Anchorage cemetery. He wondered how the
dollar amount of such vandalism would be determined.
MS. BACKES responded that the amendment classifies such vandalism
as a class C felony and does not set a dollar amount on the damage.
In many cases, it is not possible to establish a monetary value on
damage done but emotional damage can be recognized.
Number 376
CHAIRMAN TAYLOR said there are a growing number of instances of
"digging". This is where individuals locate and collect artifacts
from ancestral graves and then sell them. This legislation will
prohibit this type of activity.
MS. BACKES responded that she was aware of such activity and any
persons who do not have a state or federal permit or legal
authorization to disturb a grave or memorial would be prohibited
from doing so under this legislation. Under federal law, there are
exceptions if the disturbance is inadvertent but there are specific
reporting requirements for such disturbances. Digging without a
permit will increase fines to $50,000 and up to five years
incarceration.
CHAIRMAN TAYLOR asked where a dollar amount appears.
MS. BACKES said it is not referred to in the bill but in chapter 12
of crimes of criminal mischief.
Number 675
SENATOR THERRIAULT asked for clarification on the current statute
governing burial sites.
MS. BACKES explained that current statute that protects cemeteries
is under the Alaska Historic Preservation Act. Under that act,
destruction is a class A misdemeanor. Although penalties are not
routinely imposed because it's difficult to catch individuals in
the act of desecrating a grave, there may be other charges levied
that do not relate to the desecration of a grave.
It is hoped that raising grave desecration to a class C felony
would in itself be a deterrent.
CHAIRMAN TAYLOR called for additional testimony and received no
response. He asked for the pleasure of the committee.
SENATOR THERRIAULT moved SCS HB 187(JUD) from committee with
individual recommendations. There being no objection, SCS HB
187(JUD) moved from committee.
HB 106-FINANCIAL INSTITUTIONS
CHAIRMAN TAYLOR announced that HB 106 is a companion to SB 66,
which was amended to include credit cards and to reflect a
compromise between banking institutions and the state examiner. HB
106 is now blended into SB 66. He called for a motion to adopt the
committee substitute.
SENATOR COWDERY moved to adopt Bannister 5/2/01 committee
substitute as the working document. There was no objection.
MR. TERRY ELDER, Director, Division of Banking, Securities &
Corporations testified that he had reviewed the committee
substitute and it appeared to include all the changes made in SB
66.
SENATOR COWDERY moved SCS HB 106(JUD) from committee with
individual recommendations.
SENATOR THERRIAULT objected for the purpose of asking a question.
He asked whether or not an amendment in his file had been
incorporated in the committee substitute.
SENATOR COWDERY withdrew his motion.
MS. MARGIE VANDOR, Assistant Attorney General, Civil Division,
Department of Law, testified that the reason for the amendment is
that the bill changes status quo of current law regarding when a
bank is reimbursed for costs to comply to an order. The amendment
makes it clear that unless it is an administrative order separate
from another requirement, the bank will not be reimbursed for those
costs.
SENATOR THERRIAULT questioned the clarity of the wording on page 3,
line 10 and further whether Banking and Securities had been
involved in the changes.
MR. ELDER repeated that his department had reviewed the document
and had no objections.
SENATOR THERRIAULT moved conceptual amendment one for the purpose
of allowing the drafter to reexamine the wording on page 3, line
10. There being no objection, the motion passed.
CHAIRMAN TAYLOR called for additional testimony and received no
response. He asked for a motion.
SENATOR COWDERY moved SCS CSHB 106(JUD) with conceptual amendment
and fiscal notes from committee with individual recommendations.
There being no objection, the bill moved from committee.
HB 214-CIVIL ACTION AGAINST MINORS IN BARS
REPRESENTATIVE KEVIN MEYER, bill sponsor, testified that the bill
allows any alcohol licensee to bring a civil suit against a minor
using a fake identification in order to purchase alcoholic
beverages. Although this is a class A misdemeanor, minors
frequently are not prosecuted while the business owner faces sever
penalties.
Businesses must post a sign informing the public that any minor
attempting to enter the premises is in violation of the law and
could be liable for damages up to $1,000.00 which can come from the
minor's permanent fund dividend if there is a judgment against that
minor. In Anchorage, several establishments split the $1,000.00
civil fine imposed between the business and the employee as an
incentive to employees to catch minors with fake identifications.
HB 214 sends a powerful message to minors that both the state and
businesses are serious in their effort to curtail underage
drinking. He then referenced several letters of support in the
committee packets and noted that there has been an ordinance in
effect in Anchorage for three years that mirrors this legislation.
SENATOR COWDERY asked who would get the money from the fine if this
becomes a state statute.
REPRESENTATIVE MEYER responded that the civil fine would be between
the licensee and the minor. If there is criminal prosecution, then
the fine imposed would go to either the city or the state depending
on which one prosecutes.
SENATOR THERRIAULT asked whether the licensee could prosecute if
the police discover the use of fake identification not the licensee
or their employee.
Number 1592
CHAIRMAN TAYLOR asked whether a small claims action had to be filed
to get the money.
REPRESENTATIVE MEYER said that was correct. In addition, the
parents would be involved which is not the case for criminal
action.
SENATOR THERRIAULT asked whether there had to be an incident report
filing taken to small claims court to get the $1,000.00.
MR. O.C. MADDEN, representative from Brown Jug in Anchorage,
explained that they have been using the ordinance to deal with
underage drinking issues for the last three years. When employees
seize fake identification, a demand for payment order is sent to
the minors residence of record which immediately involves the
parents. Sometimes a small claims action is necessary and it is
their policy to split the fine with the employee.
SENATOR THERRIAULT pointed out that although the local ordinance
may give authority to demand payment without filing a small claims
action, the statute does not. Small claims action must be taken
before there is a right to make the demand.
MR. MADDEN responded that the Anchorage ordinance requires a demand
letter be sent 15 days prior to initiating a civil action.
CHAIRMAN TAYLOR explained that Anchorage has set up a notification
time line and a structure in which to do this. There is no
requirement of notification, however. A small claims action could
be filed immediately.
He called for additional testimony and received no response. He
then asked for the pleasure of the committee.
SENATOR COWDERY moved CSHB 214(L&C) from committee with individual
recommendations.
There being no objection, CSHB 214(L&C) moved from committee with
individual recommendations.
Number 1876
HB 210-STAT. OF LIMITATIONS:SEXUAL ASSAULT/ABUSE
REPRESENTATIVE KEVIN MEYER, bill sponsor, testified that HB 210
removes the statute of limitations on felony sexual assault
involving penetration. Currently, only sexual abuse of a minor and
murder have no statute of limitations and HB 210 adds sexual
assault to the list of extreme crimes. New technology and DNA
testing make it possible to use evidence many years after the crime
has been committed and state law should protect the victim's right
to justice. The amendment made on the House floor includes civil
penalties as well.
The legislation will become effective on the date it becomes law
and as long as the 10 year limitation has not expired by the time
HB 210 becomes law, the crime has no limitations for when it can be
prosecuted.
CHAIRMAN TAYLOR read from page 1, line 9 through page 2, line 6 and
asked whether there was already a 10 year statute of limitations in
effect.
REPRESENTATIVE MEYER said there was. He then added that the wording
was confusing to him but the drafter was present to answer
questions. The intent of the bill centers on page 1, line 13, which
states that prosecution of class A, or class B felony sexual
assault or violation of AS 11.41.425(a)(2) or (3) may commence at
any time. Although there are other felony sexual assaults, they
deal with contact while this deals with penetration.
He announced he would have no objection if the committee wanted to
drop the amendment that was added on the House floor which drops
the statute of limitations for civil penalties. Because his focus
was on criminal penalties, he wasn't committed one way or the other
to the statute of limitations being extended to include civil
penalties as well.
He thought the drafter might better explain the bill arrangement if
there were questions.
SENATOR COWDERY asked whether Representative Meyer had an amendment
ready.
REPRESENTATIVE MEYER responded that section 1 could be deleted and
the sections renumbered.
The reasoning behind the amendment was that if it was possible to
prove that a suspect was criminally liable for a 20 year old crime
then why shouldn't the victim be able to bring civil charges as
well.
Number 2100
CHAIRMAN TAYLOR asked the drafter to explain the confusion over 10
years.
MR. GERALD LUCKHAUPT, an attorney with Legislative Legal &
Research Services, Legislative Affairs Agency explained that
Section 2(a) says there is no criminal statute of limitations for
the listed offences. Subsection (b) maintains the current 10 year
statute of limitations for class C felony sexual assault that
involves contact and sexual abuse of a minor.
CHAIRMAN TAYLOR asked why page 2, line 3 was included.
MR LUCKHAUPT replied that unless there is another applicable
statute that specifies a different statute of limitations or if
it is a crime listed in (a) then these are the statutes of
limitations that generally apply in Alaska.
CHAIRMAN TAYLOR said, then "it's part of the exception. Except as
otherwise provided by law or except as in section (a)."
MR LUCKHAUPT agreed.
CHAIRMAN TAYLOR asked how this affects outstanding cases. For
instance, if a case was 12 to 15 years old before the police got
proof, current state law would not allow prosecution. Would
passage of HB 210 allow prosecution of that case?
MR. LUCKHAUPT responded that if the statute of limitations on an
outstanding offense has not yet run, the statute of limitations
could be extended.
CHAIRMAN TAYLOR asked about a situation in which no indictment or
complaint was brought. Wouldn't it be a waste of time to go
forward if there is a statute of limitations that would prevent
this? "Does the look back caused by this legislation go beyond
the previous 10 years?" For instance, consider that a crime was
committed 15 to 20 years ago and the investigation occurred 10 or
more years after the crime was committed and there was a 10 year
statute of limitations in effect. Would the passage of this
legislation allow the prosecutor to prosecute the perpetrator?
MR. LUCKHAUPT replied that once the statute of limitations on an
offense has run, that offense may not be resurrected for criminal
prosecution.
CHAIRMAN TAYLOR said he understood that this legislation would
only affect offenses that have occurred ten years prior to the
effective date of the act.
MR. LUCKHAUPT said that is basically correct but there is a
provision that deals with an offense committed against a minor or
an individual who was not aware that the offense had occurred so
there could be instances in which the look back would extend
farther that ten years.
CHAIRMAN TAYLOR thanked Mr. Luckhaupt for the explanation and asked
whether there were additional witnesses who wanted to testify.
MR. BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency,
testified that the primary concern addressed by the bill is the
physical evidence left from a sexual assault in which there is no
suspect that can be DNA tested. If the DNA patterns are kept in a
data bank, a suspect may be identified for a crime that was
committed more that ten years ago.
Side B
Although he can't argue against DNA patterning being used on that
category of case, he is concerned about sexual assaults in which
there is some kind of recovered memory issue and there is no DNA
evidence. A prosecution that is undertaken 10 or 15 years after the
fact would put the defense at a decided disadvantage. The reason
for statutes of limitation is to provide some protection against
older cases in which there is an alibi but it can no longer be
established.
With this in mind, he would like to explore the possibility of
restricting the extended look back to DNA cases or those involving
scientific evidence.
SENATOR THERRIAULT remarked that the occurrence of a resurrected
memory case is remote and both the defense and the prosecution
could be at a disadvantage in terms of corroborating witnesses or
alibis.
MR. McCUNE agreed that the occurrence of such cases is remote but,
in such instances, he felt the defense would be at a greater
disadvantage than the prosecution by the passage of time.
Number 2281
MS TRISHA GENTLE, Executive Director, Council on Domestic Violence
& Sexual Assault, testified in support of the bill. It's important
to recognize that this allows victims the time to heal emotionally
and physically before coming forward to prosecute.
She also spoke in favor of the amendment to include civil
penalties. Although she thought there would be few instances in
which a victim chose that avenue but it would provide a victim
another opportunity to feel whole once again.
CHAIRMAN TAYLOR called for questions and there were none. He asked
for the pleasure of the committee.
SENATOR COWDERY moved CSHB 210(JUD) forward with individual
recommendations.
There being no objection, CSHB (210) and attached fiscal note moved
from committee with individual recommendations.
HB 102-THEFT OF PROPELLED VEHICLES
Number 2214
REPRESENTATIVE PETE KOTT, bill sponsor, introduced the bill as
legislation that focuses on the crime of vehicle theft and equal
penalties associated with the taking of propelled vehicles without
the owners' permission. Stealing watercraft such as skidoos and jet
skis would be excluded from the felony prosecution category and
would instead be prosecuted at the misdemeanor level.
CHAIRMAN TAYLOR asked whether any of the safety or registration
requirements for a boat of that size had been changed.
REPRESENTATIVE KOTT said they had not been changed.
SENATOR THERRIAULT observed that three and four wheel all terrain
vehicles were added.
REPRESENTATIVE KOTT responded that he would explain that in the
Section 2 discussion. Section 1 deals with watercraft and removes
skidoo and jet ski theft from automatic prosecution as a class C
felony.
SENATOR THERRIAULT asked if the reason that these watercraft were
removed from the automatic felony prosecution category was because
they are primarily used for recreational purposes instead of being
used as modes of transportation for employment.
REPRESENTATIVE KOTT agreed and added that they are not licensed by
the State either.
Additionally, if damage amounts are $1,000.00 or more or the owner
of record incurs reasonable expenses of $1,000.00 or more or the
owner is deprived of the use of the vehicle for seven days or more
then the crime will be prosecuted as a class C felony.
CHAIRMAN TAYLOR called for additional testimony and observed that
with zero fiscal notes from both the Alaska Court System and the
Department of Corrections it was unlikely that there would be many
prosecutions.
He asked for the pleasure of the committee.
SENATOR COWDERY moved CSHB 210(JUD) from committee with
individual recommendations.
There being no objection, CSHB 102(JUD) and accompanying fiscal
notes moved from committee with individual recommendations.
CHAIRMAN TAYLOR called a recess at 6:18 p.m. The meeting was
called back to order at 7:38 p.m. Chairman Taylor and Senators
Therriault and Cowdery were present.
SB 210-LIMITS ON RIGHT TO PRIVACY
SENATOR PETE KELLY, bill sponsor, testified that the legislation
gives the court direction in addressing issues in areas of privacy.
CHAIRMAN TAYLOR asked whether Senator Kelly had reviewed the
amendment Senator Therriault had prepared.
SENATOR KELLY acknowledged he had and he supported the amendment.
SENATOR THERRIAULT moved draft A.1 of amendment 1 for SB 210 for
the committee consideration.
CHAIRMAN TAYLOR explained that Section 1 provides for the
implementation of the right to privacy within Alaska Statute 01.10.
In the beginning of the statute books there is a general provisions
section that provides guidance to the three branches on those
generic items such as how to repeal or affect an amendment. These
general provisions have an effect on all the laws the legislature
passes as well as the interpretation of those laws by the executive
and judicial branches. Therefore, if the legislature is amending
the statutes to provide for the implementation of the right to
privacy, then it is appropriate to provide for the same
implementation language in the generic section of statutes that
provide guidance to the executive and judicial branches.
He thanked Senator Kelly for bringing the legislation before the
committee and Senator Therriault for offering the amendment.
He asked for further discussion. There was no response and
amendment 1 passed.
He then offered the following as amendment 2: On page 1, lines 4-5
strike the words "to benefits for unmarried partners." On line 6
strike "extend to" and insert "create". Strike the last word on
line 6 and all of lines 7 and 8. On line 6, after the word
"receive" insert "public money, a public benefit, or a public
service. On lines 13-14, strike "to state funding for abortions."
On line 15, strike the words "extend to" and insert "create". After
the word "receive" strike "state funding" and insert "public money,
a public benefit, or a public service." On page 2, line 1 strike
"for abortion."
SENATOR KELLY said he understood the amendment. He added that, in
light of the Duke Law Review finding the Alaska Courts the most
liberal in the United States, there is no way to anticipate what
the courts will do when it comes to implementing social change that
he finds unacceptable.
The language inserted in amendment 2 is less specific but it
anticipates "further outrages by the court."
CHAIRMAN TAYLOR called for additional discussion or objection to
amendment 2 and received no response.
There being no objection, amendment 2 passed.
There being no additional testimony, he asked for a motion.
SENATOR COWDERY moved SB 210, as amended, from committee with
individual recommendations.
There being no objection, CSSB 210(JUD) moved from committee with
individual recommendations.
There being no further business before the committee, the meeting
was adjourned at 7:47 p.m.
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