02/11/2008 01:30 PM Senate JUDICIARY
| Audio | Topic | 
|---|---|
| Start | |
| SB211 | |
| SB247 | |
| SB226 | |
| Adjourn | 
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 211 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 226 | TELECONFERENCED | |
| += | SB 247 | TELECONFERENCED | |
| + | TELECONFERENCED | 
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                       February 11, 2008                                                                                        
                           1:33 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Lesil McGuire                                                                                                           
Senator Bill Wielechowski                                                                                                       
Senator Gene Therriault                                                                                                         
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 211                                                                                                             
"An Act relating to an aggravating factor at sentencing for                                                                     
crimes directed at a victim because of the victim's                                                                             
homelessness."                                                                                                                  
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 226                                                                                                             
"An Act relating to litigation brought by a vexatious litigant;                                                                 
amending Rules 3, 4, 12, and 41, Alaska Rules of Civil                                                                          
Procedure; and providing for an effective date."                                                                                
     MOVED SB 226 OUT OF COMMITTEE                                                                                              
                                                                                                                                
SENATE BILL NO. 247                                                                                                             
"An Act relating to missing persons and unidentified human                                                                      
remains."                                                                                                                       
     MOVED CSSB 247(JUD) OUT OF COMMITTEE                                                                                       
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB 211                                                                                                                  
SHORT TITLE: AGGRAVATING FACTOR: HOMELESSNESS                                                                                   
SPONSOR(s): SENATOR(s) DAVIS                                                                                                    
                                                                                                                                
01/16/08       (S)       PREFILE RELEASED 1/4/08                                                                                
01/16/08       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/16/08       (S)       JUD                                                                                                    
02/01/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
02/01/08       (S)       -- MEETING CANCELED --                                                                                 
02/11/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
                                                                                                                                
BILL: SB 226                                                                                                                  
SHORT TITLE: VEXATIOUS LITIGANTS                                                                                                
SPONSOR(s): JUDICIARY                                                                                                           
                                                                                                                                
01/16/08       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/16/08       (S)       JUD, FIN                                                                                               
01/30/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
01/30/08       (S)       Heard & Held                                                                                           
01/30/08       (S)       MINUTE(JUD)                                                                                            
02/11/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
                                                                                                                                
BILL: SB 247                                                                                                                  
SHORT TITLE: MISSING PERSONS                                                                                                    
SPONSOR(s): SENATOR(s) GREEN                                                                                                    
                                                                                                                                
01/23/08       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/23/08       (S)       JUD, FIN                                                                                               
01/30/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
01/30/08       (S)       Heard & Held                                                                                           
01/30/08       (S)       MINUTE(JUD)                                                                                            
02/11/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
                                                                                                                                
WITNESS REGISTER                                                                                                              
JANA KREOFSKY, Legislative Intern                                                                                               
  to Senator Bettye Davis                                                                                                       
Alaska State Capitol                                                                                                            
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Introduced SB 211 on behalf of the                                                                       
sponsor.                                                                                                                        
                                                                                                                                
GEORGE BRIGGS, Executive Director                                                                                               
Juneau Cooperative Christian Ministry                                                                                           
Glory Hole                                                                                                                      
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Spoke in support of SB 211.                                                                              
                                                                                                                                
DANIEL UNGIER                                                                                                                   
United Way of Southeast Alaska                                                                                                  
said he chairs the Juneau Homeless Coalition                                                                                    
POSITION STATEMENT: Spoke in support of SB 211.                                                                               
                                                                                                                                
SAMUEL J. FORTIER, Attorney at Law                                                                                              
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Spoke in support of SB 211.                                                                              
                                                                                                                                
DIANNE SLIGHTER                                                                                                                 
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Spoke in support of SB 211.                                                                              
                                                                                                                                
REPRESENTATIVE ANDREA DOLL                                                                                                      
Alaska State Capitol                                                                                                            
Juneau, AK                                                                                                                      
POSITION STATEMENT: Spoke in support of SB 211.                                                                               
                                                                                                                                
ANNE CARPENETI, Assistant Attorney General                                                                                      
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Answered questions about aggravating                                                                     
factors as related to SB 211.                                                                                                   
                                                                                                                                
DARWIN PETERSON, Staff                                                                                                          
  to Senator Stedman                                                                                                            
Alaska Capitol Building                                                                                                         
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Explained changes in CS to SB 247.                                                                       
                                                                                                                                
MARY WEIR                                                                                                                       
                                                                                                                                
RODNEY DIAL, Lieutenant                                                                                                         
Alaska State Troopers                                                                                                           
Department of Public Safety                                                                                                     
Ketchikan, AK                                                                                                                   
POSITION STATEMENT:  Stated support for the goal of SB 247 and                                                                
expressed concern with some of the directives.                                                                                  
                                                                                                                                
JOAN WILSON, Assistant Attorney General                                                                                         
Civil Division                                                                                                                  
Department of Law                                                                                                               
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Provided information about HIPPA compliance                                                              
related to SB 247.                                                                                                              
                                                                                                                                
SUSAN COX, Senior Assistant Attorney General                                                                                    
Civil Division                                                                                                                  
Torts &Worker's Compensation                                                                                                    
Department of Law                                                                                                               
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Provided explanation and answered questions                                                              
related to SB 226.                                                                                                              
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee meeting to order at 1:33:18  PM. Present at the call to                                                             
order  were  Senators  French,  Huggins,  and  McGuire.  Senators                                                               
Wielechowski and Therriault joined the meeting soon thereafter.                                                                 
                                                                                                                                
            SB 211-AGGRAVATING FACTOR: HOMELESSNESS                                                                         
                                                                                                                                
1:33:54 PM                                                                                                                    
                                                                                                                                
CHAIR FRENCH announced the consideration of SB 211.                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI joined the meeting.                                                                                        
                                                                                                                                
JANA KREOFSKY, legislative intern to Senator Bettye Davis,                                                                      
introduced SB 211 on behalf of the sponsor. She read the                                                                        
following sponsor statement into the record.                                                                                    
                                                                                                                                
     SB 211 allows the court  to increase the active term of                                                                    
     imprisonment  for felonies  up to  the maximum  term of                                                                    
     imprisonment, even for a first  offense, for factors in                                                                    
     aggravation.   Current   sentencing  provisions   allow                                                                    
     imposition of  a sentence  above the  presumption range                                                                    
     set  out in  AS 12.55.125  based on  race, sex,  color,                                                                    
     creed,  physical  or  mental disability,  ancestry,  or                                                                    
     national origin  as set out in  AS 12.55.155(c)(22). SB
     211  adds "homelessness"  as an  aggravating factor  to                                                                    
     this section.                                                                                                              
                                                                                                                                
     The  purpose of  this statute  is to  deter and  punish                                                                    
     defendants motivated  to harm  homeless people  who are                                                                    
     particularly  vulnerable  and increasingly  targets  of                                                                    
     crime.  Violent crimes  against the  homeless increased                                                                    
     65 percent  from 2005-2006, according to  a 2006 report                                                                    
     by the  National Coalition for  the Homeless.  The 2006                                                                    
     numbers  reflect  a  170  percent  increase  since  the                                                                    
     organization's  first  study  in  1999.  This  national                                                                    
     trend is reflected in the  more than 14,000 individuals                                                                    
     who  experience  homelessness   in  Alaska  each  year,                                                                    
     according  to the  2005 Alaska  Interagency Council  on                                                                    
     Homelessness  report,  "Keeping  Alaskans  Out  of  the                                                                    
     Cold." This violence against the  homeless has a direct                                                                    
     impact  on   the  victim,  the  victim's   family,  the                                                                    
     community, and Alaska as a whole.                                                                                          
                                                                                                                                
1:36:31 PM                                                                                                                    
GEORGE BRIGGS,  Executive Director, Juneau  Cooperative Christian                                                               
Ministry, "The Glory Hole", stated  support for SB 211. The Glory                                                               
Hole is  a 40-bed  homeless shelter and  soup kitchen  in Juneau.                                                               
Over the  course of a year  he sees about 20  percent of Juneau's                                                               
substantially  high  homeless  population. During  his  15  month                                                               
tenure,   he  has   seen   crimes   committed  against   homeless                                                               
individuals  committed for  no apparent  reason  other than  that                                                               
they are  homeless. Citing  several examples,  he said  these are                                                               
senseless  acts  of  violence   that  target  a  very  vulnerable                                                               
population. Generally,  homeless people  want to  be part  of the                                                               
community  but they've  been ostracized  and have  learned to  be                                                               
mistrustful. "This is  a group of citizens that have  a hard time                                                               
trusting even me." As such,  they're reluctant to report personal                                                               
assaults  to the  police. Although  he doesn't  agree at  all, he                                                               
knows that some homeless individuals  have the attitude that they                                                               
deserve to be attacked.                                                                                                         
                                                                                                                                
MR.  BRIGGS said  SB  211 will  give the  courts  the ability  to                                                               
address crimes against  the homeless in a  different manner. This                                                               
will help send  the message that "you can't just  walk around the                                                               
street and beat up people just for the heck of it."                                                                             
                                                                                                                                
1:41:07 PM                                                                                                                    
DANIEL UNGIER,  United Way  of Southeast  Alaska, said  he chairs                                                               
the Juneau Homeless  Coalition which looks at the  root causes of                                                               
homelessness.  When he  first heard  about SB  211 he  questioned                                                               
adding homelessness as a separate  factor, but that was before he                                                               
knew  anything about  "Bum Fights  Online." This  privately made,                                                               
low  budget  film series  has  played  an  integral part  in  the                                                               
skyrocketing  increase in  violence against  the homeless.  These                                                               
are videos of people who shout  the phrase, "bum fights" and then                                                               
attack someone  who is playing  a stereotypical  homeless person.                                                               
In particular  this phenomenon is  sweeping through  young people                                                               
and references are  beginning to show up  in mainstream Hollywood                                                               
movies. The essential message is that  it does no harm to beat up                                                               
the homeless because they really aren't contributing to society.                                                                
                                                                                                                                
MR. UNGIER said he concluded  that "homelessness" should be added                                                               
as  an   aggravating  factor  because  these   people  are  being                                                               
stereotyped  and disproportionately  targeted  simply because  of                                                               
their homeless  status. In  fact, 21  percent of  homeless people                                                               
report being the victim of a  violent crime compared to 1 percent                                                               
of  the general  population. Bum  fight videos  have created  the                                                               
image  that an  easy way  to  have fun  is to  target and  attack                                                               
someone because of their specific status.                                                                                       
                                                                                                                                
MR.  UNGIER said  this legislation  is about  more than  imposing                                                               
stiffer sentences. It's about making  a statement about this kind                                                               
of crime and about reducing how  often it happens. SB 211 sends a                                                               
strong message; it counteracts stereotyping,  and it could make a                                                               
real difference.                                                                                                                
                                                                                                                                
1:45:54 PM                                                                                                                    
SENATOR  HUGGINS  observed that  in  his  dealings with  homeless                                                               
people,  most of  whom are  veterans, he's  concluded that  often                                                               
they're a  victim of  a crime by  another homeless  person. "What                                                               
does  that do  to  the  definition we're  doing  here  if it's  a                                                               
homeless person with a crime on a homeless person," he asked.                                                                   
                                                                                                                                
MR. UNGIER replied  he's heard stories along those  lines but the                                                               
statistics indicate  that perpetrators are targeting  people they                                                               
don't know.  "I don't know what  the impact would be  on homeless                                                               
against homeless crimes," he said.                                                                                              
                                                                                                                                
CHAIR FRENCH suggested that the  Department of Law representative                                                               
might be able to provide an answer.                                                                                             
                                                                                                                                
SENATOR  HUGGINS  asked  how  couch-surfing  teenagers  would  be                                                               
addressed.                                                                                                                      
                                                                                                                                
MR. UNGIER  said he understands  that for the  aggravating factor                                                               
to  apply,  the  person  must be  knowingly  targeted  for  their                                                               
homelessness. He wouldn't  expect the law to apply  to a teenager                                                               
who is couch surfing.                                                                                                           
                                                                                                                                
1:48:29 PM                                                                                                                    
SENATOR HUGGINS questioned how someone  knows that another person                                                               
really is homeless.                                                                                                             
                                                                                                                                
MR. UNGIER  explained that people  who have just left  a homeless                                                               
shelter and people who fit the stereotype are targeted.                                                                         
                                                                                                                                
SENATOR  HUGGINS observed  that in  Anchorage there's  a sizeable                                                               
number of  people who are  sequestered somewhere off  the street.                                                               
"The common  thing amongst  them is if  you fall  asleep somebody                                                               
will bong you on the head and  take your fifth of whiskey or your                                                               
sleeping bag  or you bunny boots  if it's really cold."  It seems                                                               
to be a cycle among a certain colony of people, he said.                                                                        
                                                                                                                                
1:50:18 PM                                                                                                                    
SAMUEL J. FORTIER  stated support for SB 211.  He's practiced law                                                               
in Anchorage  for more  than 25  years and  some of  his practice                                                               
involves  homeless advocacy.  Referring  to  the suggestion  that                                                               
only homeless  people target other  homeless people, he  said his                                                               
experience  is the  opposite. Several  years ago  in Anchorage  a                                                               
group  of youths  took videos  of paintball  attacks on  homeless                                                               
people. Clearly  that was  a hate-related  crime that  focused on                                                               
the category of  homeless people. The purpose was to  make fun of                                                               
certain  people and  put  it on  video. "There  was  no basis  in                                                               
attacking  those  people  other  than the  fact  that  they  were                                                               
homeless."                                                                                                                      
                                                                                                                                
1:53:31 PM                                                                                                                    
SENATOR THERRIAULT joined the meeting.                                                                                          
                                                                                                                                
MR.  FORTIER relayed  that on  any  given night  there are  about                                                               
3,500 people  in Alaska  who don't  have homes.  At least  700 of                                                               
those individuals  will be  attacked and  probably 20  percent of                                                               
the  attacks will  be violent.  The basis  for the  attacks isn't                                                               
because  someone  is reaching  for  another  person's bottle,  he                                                               
said. A number of the takings  are on the basis that these people                                                               
are homeless. "It's on the basis  of status; it's on the basis of                                                               
hate." We  do have a  responsibility for these individuals  if we                                                               
consider that  they are among  the most vulnerable, he  said. The                                                               
reasons for homelessness  are varied; it's not  simply because of                                                               
mental  problems  or  drug  and   alcohol  abuse,  although  many                                                               
homeless  are  faced with  those  problems.  People are  rendered                                                               
homeless because of economic conditions  too. There is a need for                                                               
an  aggravator, he  said. We  need to  send a  message that  it's                                                               
wrong to  attack vulnerable people  on the basis of  status. Ours                                                               
is an  inclusive society that  doesn't exclude people  from basic                                                               
protections  and  basic   human  rights.  Discriminating  against                                                               
people on the basis of gender  or race isn't permitted and people                                                               
who are on the outskirts  of society based on economic conditions                                                               
should be similarly protected.                                                                                                  
                                                                                                                                
1:56:16 PM                                                                                                                    
MR. FORTIER  revealed that he  was homeless in Dillingham  in the                                                               
early 1970s when  housing was in short supply.  The difference is                                                               
that he was  in a village where people take  care of one another.                                                               
"That's not  so in a  large city." When  you're at the  bottom of                                                               
the economic heap in Anchorage you  are preyed upon. It's time to                                                               
add the  aggravator for the most  serious felonies. Consideration                                                               
should  also be  given to  including homelessness  in other  hate                                                               
crime legislation, he said.                                                                                                     
                                                                                                                                
1:58:06 PM                                                                                                                    
DIANNE SLIGHTER  described herself as a  concerned Juneau citizen                                                               
who listened  when Representative Andrea Doll  introduced similar                                                               
legislation. She said  it's not difficult to  identify a homeless                                                               
person because their entire composure  is different; they're sort                                                               
of  inside  themselves.  She  drew  a  parallel  between  current                                                               
violent  attacks on  homeless people  and  the violent  gladiator                                                               
sports from ancient  times. "What difference is  it today?" These                                                               
vulnerable people are targeted just for sport and it's wrong.                                                                   
                                                                                                                                
CHAIR FRENCH welcomed Representative Doll.                                                                                      
                                                                                                                                
2:00:54 PM                                                                                                                    
REPRESENTATIVE ANDREA DOLL  said she is proud  to have introduced                                                               
legislation similar  to SB 211.  Many Americans are not  all that                                                               
far  from  homelessness  but  her   reason  for  introducing  the                                                               
legislation relates  to homeless women with  drug abuse problems.                                                               
Often they aren't  able to go into the AWARE  women's shelter and                                                               
they don't feel  safe in the other shelters in  town. That places                                                               
them in the  vulnerable position of being on  the street. They're                                                               
worried  about rape  and assault  and  sometimes they're  worried                                                               
about  not being  treated  fairly  by the  police.  She said  she                                                               
realized that she  couldn't build a shelter,  although she'd like                                                               
to  work  on   that.  What  she  could  do   is  highlight  these                                                               
individuals'  plight and  show that  we care  about their  value.                                                               
Adding "homelessness" as  an aggravating factor is one  way to do                                                               
that.                                                                                                                           
                                                                                                                                
CHAIR  FRENCH asked  the Department  of  Law to  explain what  it                                                               
takes to prove an aggravator,  what would happen if an aggravator                                                               
were proved,  and at what stage  of the proceedings it  has to be                                                               
proved.                                                                                                                         
                                                                                                                                
2:03:15 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Department of  Law (DOL) explained  that this  aggravating factor                                                               
would be subject  to the Blakely decision.  The prosecution would                                                               
have  to  prove beyond  a  reasonable  doubt that  the  defendant                                                               
directed the  crime toward the  victim because of  their homeless                                                               
status. "It would be a  difficult aggravating factor to prove, as                                                               
are others in this particular paragraph of aggravators."                                                                        
                                                                                                                                
CHAIR  FRENCH referred  to the  questions  Senator Huggins  posed                                                               
earlier about defining who is  homeless, knowing who is homeless,                                                               
and  about  couch  surfers.  In   his  mind  they  highlight  the                                                               
difficulties should DOL try to prove this aggravator.                                                                           
                                                                                                                                
MS. CARPENETI  agreed it will be  difficult. "This is not  one we                                                               
will be able to establish  often." Initially she thought it would                                                               
be a  good idea  to include  a definition  but then  she realized                                                               
that  none of  the other  factors  are defined  in statute.  It's                                                               
something that  the courts can  apply when it's reasonable  to do                                                               
so. But  it won't happen often.  It would be even  more difficult                                                               
to prove that a homeless  person targeted another homeless person                                                               
because they were homeless.                                                                                                     
                                                                                                                                
CHAIR  FRENCH  referred  to  Senator   Huggins'  example  of  one                                                               
homeless person preying on another  for their belongings and said                                                               
to prove  that the crime  was based on homelessness  you'd almost                                                               
need a video of the person  stating their motive into the camera.                                                               
"Absent that sort  of confession…it's going to  be very difficult                                                               
to prove."                                                                                                                      
                                                                                                                                
MS. CARPENETI agreed.                                                                                                           
                                                                                                                                
2:06:23 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  if  the person  actually  has to  be                                                               
homeless or if  it's just the attacker's  perception that they're                                                               
homeless. For example, a person who  is kicked out of their house                                                               
and  is attacked  when they're  sleeping  on a  park bench  isn't                                                               
really homeless, but the attacker thinks they are.                                                                              
                                                                                                                                
MS. CARPENETI replied  it would depend on the  facts, but someone                                                               
who was  kicked out of  their house could be  considered homeless                                                               
if they had no place to go.                                                                                                     
                                                                                                                                
SENATOR  HUGGINS said  his concern  is  that this  could be  just                                                               
another  statute without  teeth. "I'm  not so  sure the  societal                                                               
will to  be able  to follow  through with  some sort  of oomph-no                                                               
matter what we legislate-is there."                                                                                             
                                                                                                                                
CHAIR FRENCH  asked what affect  it would  have on a  sentence if                                                               
this aggravator were proved.                                                                                                    
                                                                                                                                
MS. CARPENETI explained that it  would allow the sentencing court                                                               
to  increase the  presumptive sentence  to the  maximum for  that                                                               
level  of  crime.  For  example,  if  it  were  established,  the                                                               
sentencing court could  sentence to the maximum term  of 20 years                                                               
for a class A felony.                                                                                                           
                                                                                                                                
CHAIR FRENCH  asked if  the judge would  be required  to increase                                                               
the sentence.                                                                                                                   
                                                                                                                                
MS.  CARPENETI  said  no;  the court  has  more  discretion  once                                                               
aggregating factors  and mitigating factors are  established, but                                                               
it does not have a mandatory effect.                                                                                            
                                                                                                                                
2:09:31 PM                                                                                                                    
CHAIR FRENCH  summarized that it  would be a  fact-driven inquiry                                                               
after  which the  judge would  consider the  elements and  decide                                                               
whether or not to add time to the sentence.                                                                                     
                                                                                                                                
MS. CARPENETI said that's correct.                                                                                              
                                                                                                                                
CHAIR  FRENCH  referred to  Senator  Huggins'  concern about  the                                                               
effectiveness   of  adding   "homelessness"   to   the  list   of                                                               
aggravators and said  the point is well taken. "It  may sit there                                                               
unused  on the  books for  decades." Similarly,  he's never  seen                                                               
creed alleged  as an aggravator,  but it's  on the list.  This is                                                               
more a  statement of  our values.  "If someone  is going  out and                                                               
attacking a  person just  because they're  homeless and  you have                                                               
the ability  to prove that …  it's worthy of having  that word on                                                               
the books." The  prosecutor will have that tool  in their toolbox                                                               
and the judge  will have the ability to "make  an upper departure                                                               
on the sentence because of the nature of the assault."                                                                          
                                                                                                                                
2:10:29 PM                                                                                                                    
SENATOR THERRIAULT  said he doesn't  disagree but  he understands                                                               
Senator Huggins' concern.  "We pat ourselves on the  back, we add                                                               
another line -  it may never be used except  for the one instance                                                               
where,  as you  said,  there's  a video  tape."  I  don't have  a                                                               
problem if  the bill passes  but this doesn't solve  the homeless                                                               
problem or the issue of violence against the homeless, he said.                                                                 
                                                                                                                                
SENATOR  THERRIAULT noted  that the  sponsor statement  says that                                                               
according  to  a  national  study   violent  crimes  against  the                                                               
homeless have  increased by  65 percent  from 2005-2006.  It also                                                               
says  that the  national  trend  is reflected  in  the more  than                                                               
14,000  individuals  who are  homeless  in  Alaska. He  asked  if                                                               
there's a  direct link and there  has been a 65  percent increase                                                               
in violence against the homeless in Alaska.                                                                                     
                                                                                                                                
MS. KREOFSKY clarified that is  a national statistic and although                                                               
violent crime  against the homeless  is reported to be  rising in                                                               
Alaska, she doesn't have specific data.                                                                                         
                                                                                                                                
2:13:11 PM                                                                                                                    
TOM  OBERMEYER,  Aide  to   Senator  Davis,  highlighted  several                                                               
definitions of  "homelessness" and  relayed that for  the purpose                                                               
of this  section the  definition is, "An  individual who  lacks a                                                               
fixed regular and  adequate nighttime residence or  has a primary                                                               
nighttime residence  that is not designed  for permanent living."                                                               
Thus  a person  in one  of  those temporary  situations could  be                                                               
identified as homeless. The statutes  don't mention perception of                                                               
homelessness,  but the  term "knowingly"  is used.  That goes  to                                                               
Senator French's point  of trying to prove  someone knowingly did                                                               
this by  putting the  attack on  the Internet,  he said.  What is                                                               
most important  though is that  this will  send a message  to the                                                               
general population  to be  more sensitive  to homeless  people in                                                               
general.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  asked Mr.  Obermeyer to  submit the  definitions to                                                               
his office. He would hold SB  211 so the committee could consider                                                               
whether or  not the term "homelessness"  is adequately understood                                                               
to allow a jury to make a good decision.                                                                                        
                                                                                                                                
                     SB 247-MISSING PERSONS                                                                                 
                                                                                                                              
CHAIR  FRENCH announced  the consideration  of SB  247 and  noted                                                               
version E committee substitute (CS) had been distributed.                                                                       
                                                                                                                                
SENATOR HUGGINS  moved to adopt  version E,  labeled 25-LS1157\E,                                                               
as the working document.                                                                                                        
                                                                                                                                
2:16:58 PM                                                                                                                    
CHAIR  FRENCH  announced that  without  objection,  version E  is                                                               
before  the committee.  He asked  Mr. Peterson  to highlight  the                                                               
changes in the CS.                                                                                                              
                                                                                                                                
2:17:14 PM                                                                                                                    
DARWIN  PETERSON, staff  to Senator  Stedman, said  he agreed  to                                                               
carry the  bill for Senator  Green, the bill sponsor,  because he                                                               
was on  her staff  when the  bill was  drafted. He  explained the                                                               
changes in the CS.                                                                                                              
                                                                                                                                
Page  1,  lines  7-9,  contains   new  language  regarding  civil                                                               
immunity.  It's also  applied  in  Sec.2 at  the  request of  the                                                               
Department  of  Law  (DOL).  Law  enforcement  is  provided  some                                                               
immunity  if  it's  not  possible  to  gather  all  the  required                                                               
information when a missing person report is filed.                                                                              
                                                                                                                                
Page 2, lines 14-16, subsection  (c) says, "In accepting a report                                                               
of a  missing person,  the law  enforcement agency  shall request                                                               
from the  person making the  report, and make  reasonable efforts                                                               
to gather to the extent  it is available, information including".                                                               
The new language  addresses DOL's concern that  the phrase "shall                                                               
gather"  didn't give  the law  enforcement agency  much latitude.                                                               
Also,  it addresses  Senator  McGuire's  concern regarding  HIPPA                                                               
violations. Page  58 of the "HIPPA  Administrative Simplification                                                               
Regulation  Text"  says  that  "a  covered  entity  may  disclose                                                               
protected  health information  to  the extent  that  such use  or                                                               
disclosure is  required by law." AS  18.65.630 deals specifically                                                               
with the issue of medical and  dental records being released in a                                                               
missing person report.  It says that when a report  is filed, the                                                               
law  enforcement  agency "shall  provide"  release  forms to  the                                                               
person filing  the report. The  family, next of kin,  or guardian                                                               
"may"  fill out  the form  and deliver  it to  the physician  and                                                               
dentist.  It  that's  done, the  physician  and  dentist  "shall"                                                               
provide  the  information to  the  law  enforcement agency.  That                                                               
covers any problems with HIPPA, he said.                                                                                        
                                                                                                                                
2:20:55 PM                                                                                                                    
MR.  PETERSON explained  that  the  change on  page  2, line  29,                                                               
reflects  Senator   Therriault's  suggestion  that   credit  card                                                               
numbers  and bank  card  numbers  can be  helpful  in tracking  a                                                               
missing person's whereabouts.                                                                                                   
                                                                                                                                
Page  3,  lines 5-8,  paragraph  (17)  reflects a  suggestion  by                                                               
Senator  Therriault that  it  would be  helpful  to collect  more                                                               
information  related to  date of  last contact.  Responding to  a                                                               
request for  further explanation,  he said the  original language                                                               
asked for  date of last contact.  He asked the drafter  to expand                                                               
the  language  so  that all  the  circumstances  surrounding  the                                                               
disappearance are recorded including  "where the person was, whom                                                               
the person  might have been with,  when the person was  last seen                                                               
or heard  from - time  and date - [and]  reasons why they  may be                                                               
missing."                                                                                                                       
                                                                                                                                
2:22:08 PM                                                                                                                    
SENATOR THERRIAULT asked if the  date of last contact was removed                                                               
and paragraph (17) was beefed up.                                                                                               
                                                                                                                                
MR. PETERSON said yes.                                                                                                          
                                                                                                                                
Page 5, lines  1-6, subsection (f) addresses  the concern Senator                                                               
Huggins expressed about  collecting DNA from family  members of a                                                               
missing person. The  sponsor agrees and so the  new language says                                                               
DNA samples taken from a  family member are provided voluntarily.                                                               
Nothing  in the  section requires  a  family member  who has  not                                                               
committed  a crime  to provide  a DNA  sample. It  also clarifies                                                               
that DNA samples are to be destroyed when a case is closed.                                                                     
                                                                                                                                
Page 6, line  29, reflects a suggestion by  Senator Therriault to                                                               
require law  enforcement agencies to establish  written protocols                                                               
for handling  missing person cases  rather than  encouraging them                                                               
to do so.                                                                                                                       
                                                                                                                                
MR. PETERSON said that is the extent of the changes in the CS.                                                                  
                                                                                                                                
2:23:52 PM                                                                                                                    
MARY WEIR said  that she brought the issue  forward because there                                                               
were no  protocols for collecting  and handling  information when                                                               
her  daughter  went  missing  for  19 months.  It  was  all  very                                                               
confusing. As  it turned out  her daughter was in  California the                                                               
entire  time,   but  the  information  was   mishandled  and  the                                                               
identification was  never made.  Her experience is  not uncommon.                                                               
The last time she checked  there were 109,000 missing persons and                                                               
6,700  unidentified  [remains]  and  the  Department  of  Justice                                                               
estimates that  those figures  are low. SB  247 will  make Alaska                                                               
part  of  the solution  since  the  biggest reason  that  matches                                                               
aren't made is that protocols are lacking.                                                                                      
                                                                                                                                
CHAIR FRENCH  said he understands  that the Department  of Public                                                               
Safety has concern with some of wording in the bill.                                                                            
                                                                                                                                
2:26:31 PM                                                                                                                    
RODNEY  DIAL, Lieutenant,  Alaska  State  Trooper, Department  of                                                               
Public Safety,  stated support for  the goal of  the legislation,                                                               
but concern  with some of  the directives. "We would  prefer that                                                               
the bill would  change some of the 'shalls' to  'mays' so that we                                                               
can maintain officer  discretion in those cases  and allocate the                                                               
resources as we currently do."                                                                                                  
                                                                                                                                
CHAIR FRENCH asked him to be more specific.                                                                                     
                                                                                                                                
LIEUTENANT DIAL  explained that he's  referring to  collection of                                                               
DNA in cases where the person  has been missing more than 30 days                                                               
and in high risk cases. "We  have a significant percentage of our                                                               
missing persons cases  that go past 30 days."  Specifically he is                                                               
talking about  the language on page  4, lines 18-20, and  page 4,                                                               
line 21.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  asked if  he believes that  the new  language "make                                                               
reasonable efforts" is insufficient.                                                                                            
                                                                                                                                
LIEUTENANT  DIAL   explained  that  in  cases   involving  repeat                                                               
runaways and  search and  rescue cases  where it's  unlikely that                                                               
the victim  will be rescued,  it's not always an  appropriate use                                                               
of resources  to travel  to different  communities to  obtain DNA                                                               
samples  of  family  members.  "We're   asking  to  maintain  the                                                               
discretion we currently have so we can allocate resources."                                                                     
                                                                                                                                
CHAIR FRENCH asked if a DNA sample is collected by a Q-tip swab.                                                                
                                                                                                                                
LIEUTENANT  DIAL said  yes; the  inside  of a  person's mouth  is                                                               
swabbed  for mitochondrial  DNA. That's  the "gold  standard" for                                                               
missing person  cases since  it can be  used for  comparison with                                                               
remains that  are highly degraded.  "We actually do  collect that                                                               
in many missing persons cases currently."                                                                                       
                                                                                                                                
CHAIR FRENCH  clarified that  the bill  doesn't place  demands on                                                               
the crime lab  to put the samples  at the front of  the queue. It                                                               
requires law enforcement agencies to  make a reasonable effort to                                                               
get  a DNA  swab from  immediate family  members and  the missing                                                               
person.                                                                                                                         
                                                                                                                                
LIEUTENANT DIAL reminded  the committee that the  state crime lab                                                               
doesn't  have the  ability  to test  mitochondrial  DNA so  those                                                               
samples are sent  out of state either to the  University of Texas                                                               
or the FBI  national crime lab. Those samples are  entered into a                                                               
national DNA database for missing persons.                                                                                      
                                                                                                                                
2:31:10 PM                                                                                                                    
CHAIR FRENCH asked if he said  that the DNA swabs for these cases                                                               
could not be tested in Alaska.                                                                                                  
                                                                                                                                
LIEUTENANT  DIAL said  that's correct.  The state  crime lab  can                                                               
only test for nuclear DNA, not mitochondrial DNA.                                                                               
                                                                                                                                
2:31:38 PM                                                                                                                    
CHAIR  FRENCH  noted  a proposed  amendment  from  the  sponsor's                                                               
office. He identified it as Amendment 1 by Senator French.                                                                      
                                                                                                                                
CHAIR  FRENCH  moved  Amendment 1  and  objected  for  discussion                                                               
purposes.                                                                                                                       
                                                                                                                                
                          AMENDMENT 1                                                                                         
                                                                                                                                
     OFFERED IN THE SENATE              BY SENATOR FRENCH                                                                       
          TO: CSSB 247(JUD)                                                                                                     
                                                                                                                                
               Page 2, line 1, following "18.60.175":                                                                           
                    Insert "and 18.65.630"                                                                                      
                                                                                                                                
               Page 2, line 16, following "is available"                                                                        
                    Insert "and permissible to disclose"                                                                        
                                                                                                                                
At ease from 2:32:35 PM to 2:32:53 PM.                                                                                      
                                                                                                                                
2:33:05 PM                                                                                                                    
MR. PETERSON  explained that the  amendment is at the  request of                                                               
the department.  It adds  reference to AS  18.65.63 in  the civil                                                               
immunity section on page 2, line 1.                                                                                             
                                                                                                                                
CHAIR FRENCH added  that the title of that  particular statute is                                                               
"Medical and Dental Records of Missing Persons."                                                                                
                                                                                                                                
MR. PETERSON  said the added language  on page 2, line  16, is an                                                               
effort to avoid HIPPA violations.                                                                                               
                                                                                                                                
CHAIR FRENCH  added that  this makes it  clear that  HIPPA trumps                                                               
Alaska statue.                                                                                                                  
                                                                                                                                
MR. PETERSON agreed.                                                                                                            
                                                                                                                                
CHAIR  FRENCH ascertained  there  were no  further questions  and                                                               
withdrew his objection  to Amendment 1. Finding  no objection, he                                                               
announced that Amendment 1 is adopted.                                                                                          
                                                                                                                                
2:35:59 PM                                                                                                                    
JOAN   WILSON,  Assistant   Attorney  General,   Civil  Division,                                                               
Department of Law, relayed that part  of her job is to advise the                                                               
Department of Health and Social  Services about HIPPA compliance.                                                               
Much of  that job is  completing the state preemption  analysis -                                                               
comparing  how the  HIPPA privacy  standards compare  with Alaska                                                               
laws, figuring out  ways for them to work  together, and pointing                                                               
it out when they don't.                                                                                                         
                                                                                                                                
MS. WILSON  clarified that AS 18.65.630  mandates disclosures and                                                               
HIPPA says that  where state or other law  requires a disclosure,                                                               
a  healthcare provider  doesn't violate  HIPPA by  complying with                                                               
the  other  law.  This  section  provides  authority  for  family                                                               
members who don't  qualify as usual next of kin  to sign a health                                                               
information release. Subsection (b)  provides law enforcement the                                                               
ability  to   do  that   when  it's   not  possible   get  family                                                               
authorization.   She  cautioned   that  when   AS  18.65.630   is                                                               
interpreted   with  HIPPA,   providers  should   know  that   the                                                               
authorization form  must also have  all the mandatory  terms that                                                               
HIPPA provides.  That will remove  any difficulty  providers have                                                               
in figuring out  whether this is a  mandatory disclosure required                                                               
by state  law or a  permissive disclosure under  an authorization                                                               
form. "I'm not really offering  any suggestions for changes to 18                                                               
65.630, but  just that there  be some kind of  legislative record                                                               
that an  authorization form provided under  these sections should                                                               
still comply  with the mandatory authorization  requirements of a                                                               
HIPPA compliant authorization form."                                                                                            
                                                                                                                                
CHAIR FRENCH  asked if she  had any  further remarks to  offer on                                                               
the bill.                                                                                                                       
                                                                                                                                
2:38:11 PM                                                                                                                    
MS. WILSON  pointed out  that the  bill has  two ways  of getting                                                               
information. First,  law enforcement  is able to  get information                                                               
from a family member and they  are not subject to HIPPA. But when                                                               
law  enforcement  makes further  reasonable  efforts,  it may  be                                                               
requesting information  directly from  health care  providers who                                                               
are subject  to privacy standards.  "It's only then  that HIPPA's                                                               
going to create any kind of  wall that someone will need to climb                                                               
over." HIPPA  does recognize public  policy needs  for protective                                                               
health information  and as  such it  has separate  exceptions for                                                               
disclosures  to law  enforcement for  purposes of  missing person                                                               
investigations. But  the section does  not permit release  of DNA                                                               
or dental  records. "Everything under  HIPPA is  disjunctive." If                                                               
you fall  under one exception you  don't have to worry  about the                                                               
other barriers so the law  enforcement barrier for DNA and dental                                                               
records  wouldn't be  applicable in  these cases  because of  the                                                               
"required  by  law"  exception and  the  "authorized  disclosure"                                                               
exception.                                                                                                                      
                                                                                                                                
CHAIR FRENCH  closed public testimony  and announced that  the CS                                                               
is before  committee for discussion.  Although he  wasn't present                                                               
for first  hearing, he  has reviewed the  minutes and  there have                                                               
been some  good explanations. Definitions  have been  added since                                                               
the committee first  heard the bill and it will  be heard next in                                                               
the Finance  Committee. Finding no further  committee discussion,                                                               
he asked for the will of the committee.                                                                                         
                                                                                                                                
2:40:24 PM                                                                                                                    
SENATOR  HUGGINS  moved to  report  CSSB  247, as  amended,  from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
note(s).                                                                                                                        
                                                                                                                                
CHAIR FRENCH  announced that without objection,  CSSB 247(JUD) is                                                               
moved from committee.                                                                                                           
                                                                                                                                
At ease from 2:40:43 PM to 2:41:51 PM`                                                                                      
                                                                                                                                
                   SB 226-VEXATIOUS LITIGANTS                                                                               
                                                                                                                              
CHAIR  FRENCH announced  the consideration  of SB  266. He  noted                                                               
that Dennis DeWitt  had distributed a letter of  support from the                                                               
National Federation of Independent Business/Alaska.                                                                             
                                                                                                                                
2:42:40 PM                                                                                                                    
SUSAN  COX, Senior  Assistant Attorney  General, Civil  Division,                                                               
Torts  and  Worker's  Compensation  Section,  Department  of  Law                                                               
(DOL), said she's  sorry she missed the last  hearing. In summary                                                               
the bill is  modeled on a California statute that  was enacted in                                                               
the  1960s  to  deal  with   frivolous  litigation  by  vexatious                                                               
litigators. Although  the courts  have inherent power  to control                                                               
abusive  litigation, this  bill creates  a uniform  mechanism for                                                               
dealing  with these  individuals  in the  court  system. The  DOL                                                               
supports  this is  an increasing  problem in  public and  private                                                               
sectors. She  relayed that she  has been a defendant  in repeated                                                               
nuisance litigation and has represented  clients who have been in                                                               
that position as well.                                                                                                          
                                                                                                                                
2:44:41 PM                                                                                                                    
MS.  COX  explained  that  in   the  bill  defines  a  "vexatious                                                               
litigant"  as   a  person  who,  without   legal  representation,                                                               
repeatedly files lawsuits against  the same parties or repeatedly                                                               
files  meritless  claims  within  a certain  period  of  time  or                                                               
repeatedly files  frivolous pleadings or  motions in a  case that                                                               
the court  considers to  be in bad  faith. Importantly,  the bill                                                               
does  not completely  block a  vexatious litigant  from filing  a                                                               
lawsuit  in any  circumstance. It  just establishes  hurtles that                                                               
the  vexatious  litigator  must overcome  before  the  courthouse                                                               
doors would  be open. The  idea is to control  abusive litigation                                                               
and  save the  court  system  and opposing  parties  the need  to                                                               
respond substantively to meritless and abusive lawsuits.                                                                        
                                                                                                                                
MS.  COX  said  the  DOL  has  some  "frequent  filers"  and  she                                                               
personally  has   a  number   of  cases   where  the   judge  has                                                               
subsequently  been added  as a  defendant. "We've  had an  appeal                                                               
before the Alaska Supreme Court within  the past year in which an                                                               
argument was made … that it was  time - in a particular case - to                                                               
set some limits on a  particular party's ability to file lawsuits                                                               
against judges."  The court recognized  it as a problem  and said                                                               
that there is  inherent authority in the court  system to control                                                               
the problem,  but it had  to be raised  at the trial  court level                                                               
first. We've attempted to do that  and have a case on appeal that                                                               
will  be  argued  in  April,  she said.  But  it  would  be  more                                                               
advantageous to have  a statutory framework within  which to work                                                               
and a uniform approach to the problem.                                                                                          
                                                                                                                                
2:48:25 PM                                                                                                                    
CHAIR FRENCH  noted that during  the previous hearing  one person                                                               
said this would violate the  First Amendment because it restricts                                                               
a person's  right to go to  court and get redress  of grievances.                                                               
The bill  packet contains a  court case upholding  the California                                                               
vexatious  litigant statute.  That  case discusses  a US  Supreme                                                               
Court holding  that baseless litigation  is not protected  by the                                                               
First Amendment right  to petition because it does  not involve a                                                               
bona  fide grievance.  It says,  "The  First Amendment  interests                                                               
involved  are  not  advanced  when the  litigation  is  based  on                                                               
intentional  falsehoods  or  on knowingly  frivolous  claims."  I                                                               
imagine that an  Alaska court would rule similarly,  he said, but                                                               
you can't be positive.                                                                                                          
                                                                                                                                
2:49:58 PM                                                                                                                    
MS. COX added  that there are statutes that  impose conditions on                                                               
filing of litigation  by inmates. A number  of those requirements                                                               
have  been challenged  on constitutional  grounds  and have  been                                                               
upheld.  "The  Alaska Supreme  Court  has  certainly indicated  a                                                               
willingness to  consider reasonable restrictions on  the right to                                                               
access the courts." A similar  result is expected here. Also, the                                                               
Ninth Circuit upheld the California  statues in Wolf v. George on                                                             
First Amendment and other constitutional grounds.                                                                               
                                                                                                                                
CHAIR FRENCH commented that it's a lengthy decision.                                                                            
                                                                                                                                
2:51:11 PM                                                                                                                    
SENATOR HUGGINS  said the definition  of vexatious litigant  is a                                                               
person who  is acting without  the assistance of an  attorney. He                                                               
referred to a previous comment that,  "we have other ways to deal                                                               
with that" and asked what they are.                                                                                             
                                                                                                                                
MS. COX  explained that  attorneys are  bound by  Civil Procedure                                                               
Rule 11. When they sign  pleadings, they are certifying that they                                                               
believe  the  filing has  merit  and  is  worthy of  the  court's                                                               
attention. If  attorneys act inappropriately the  bar association                                                               
can exert  its control. DOL has  found that in cases  of repeated                                                               
pro se  litigation the threat  of adverse attorney fee  awards is                                                               
not  a   sufficient  deterrent.  For  some   people  it's  almost                                                               
recreation. "This  bill is  aimed at those  who file  things that                                                               
are frivolous and without the use of counsel for that reason."                                                                  
                                                                                                                                
2:53:10 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if  this would  apply to  an attorney                                                               
acting pro se.                                                                                                                  
                                                                                                                                
MS. COX recalled some discussion  of that during the drafting. It                                                               
isn't  mentioned  specifically  but  if an  attorney  was  acting                                                               
without assistance of counsel then it would apply, she said.                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI said  an attorney acting pro  se still faces                                                               
court discipline for filing an improper pleading.                                                                               
                                                                                                                                
MS.  COX replied  an attorney  would be  in a  slightly different                                                               
situation  than   the  average   pro  se  litigant.   She  hasn't                                                               
encountered  an  attorney  who has  filed  repeated  or  multiple                                                               
actions.                                                                                                                        
                                                                                                                                
SENATOR  McGUIRE  commented  that  exempting  attorneys  who  are                                                               
acting pro  se would  cause problems. "If  you're pro  se, you're                                                               
pro  se."  She  would  be   uncomfortable  exempting  a  licensed                                                               
attorney.                                                                                                                       
                                                                                                                                
CHAIR  FRENCH said  he shares  her concern.  It's anyone  without                                                               
assistance of counsel and it could be a lawyer without a lawyer.                                                                
                                                                                                                                
2:56:32 PM                                                                                                                    
CHAIR FRENCH  closed public  testimony. Noting  that this  is the                                                               
second hearing and the bill has  a finance referral, he asked for                                                               
the will of the committee.                                                                                                      
                                                                                                                                
SENATOR McGUIRE  motioned to  report SB  226 from  committee with                                                               
individual recommendations and attached fiscal note(s).                                                                         
                                                                                                                                
CHAIR FRENCH  announced that without  objection, SB 226  is moved                                                               
from committee.                                                                                                                 
                                                                                                                                
There being  no further  business to  come before  the committee,                                                               
Chair French adjourned the meeting at 2:57:21 PM.                                                                             
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