Legislature(2017 - 2018)GRUENBERG 120
03/16/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB387 | |
| HB75 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 387 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 75 | TELECONFERENCED | |
HB 75-GUN VIOLENCE PROTECTIVE ORDERS
1:58:02 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 75, "An Act relating to gun violence protective
orders; relating to the crime of violating a protective order;
relating to a central registry for protective orders; relating
to the powers of district judges and magistrates; requiring
physicians, psychologists, psychological associates, social
workers, marital and family therapists, and licensed
professional counselors to report annually threats of gun
violence; and amending Rules 4 and 65, Alaska Rules of Civil
Procedure, and Rule 9, Alaska Rules of Administration."
CHAIR CLAMAN advised that this is the fifth hearing of HB 75 in
the House Judiciary Standing Committee. In recap, Chair Claman
offered that on Wednesday the committee heard from the
Department of Law (DOL) and the Alaska Court System (ACS)
regarding constitutional issues, how the gun violence protective
order structure compares to domestic violence protective orders,
the structure in existing statutes, and how the gun violence
protective order compares to civil commitment motions. The
committee learned the following: individuals do not have a right
to counsel in a domestic violence protective order proceeding
because it is a civil proceeding and not a criminal proceeding;
there may not be a right to counsel on a gun violence protective
order proceeding because it is also a civil proceeding and the
committee will learn more about a right to counsel today; the
difference between a civil commitment under Title 47 based on a
civil court finding that a person suffers from a mental disease
or defect and a procedure to address a criminal defendant's
competency to stand trial in a criminal case; the criminal
competency proceeding addresses whether a person is able to
understand the proceeding against them or to assist in their own
defense under AS 12.47.100 and there are no competency hearings
if there are no criminal charges.
CHAIR CLAMAN noted that during the last hearing, Dario
Borghesan, Department of Law, indicated that he would perform
research on the right to counsel in civil matters, the status of
the State of Indiana law and that court's review of that
particular gun violence protective order.
2:00:05 PM
DARIO BORGHESAN, Assistant Attorney General, Opinions, Appeals,
& Ethics Section, Civil Division (Anchorage), Department of Law,
responded that on the issue of whether HB 75 would trigger the
right to a court-appointed counsel, the short answer is that
possibly in a relatively rare case and if they had a publicly
funded attorney, there might be an obligation to provide the
respondent with a court-appointed attorney. He explained that
the right to court-appointed counsel typically attaches in
criminal prosecutions, and HB 75 is a civil proceeding that does
not entail any threat of jailtime. Typically, civil proceedings
do not require court-appointed counsel; however, the Alaska
Supreme Court ruled that in child protection proceedings and in
private child custody proceedings, if one parent has a publicly
funded attorney through the Alaska Legal Services Corporation,
the parent on the other side is entitled to court-appointed
counsel under the Flores v. Flores, 598 P.2d 893 (1979) decision
and the Alaska Supreme Court reaffirmed that principle in 2011.
As to HB 75, there is the right to parent your children and the
right to bear arms. Although both are constitutionally
protected rights, it does not mean that a person receives the
same constitutional protections against a temporary seizure of a
person's firearms, then a person would receive if there was a
risk of a person's children being removed from their custody.
He pointed out that those are different constitutional rights
and the parties might be entitled to different judicial
protections. It is important to advise, he offered, that it is
"pretty rare" that the party seeking a domestic violence
protective order does so with the help of an attorney.
Therefore, in the case of the gun violence protective order it
would also be fairly rare that someone would seek that order
with the help of an attorney. He remarked that only if a person
was seeking a gun violence protective order with the help of a
publicly funded attorney, there might be some obligation to have
court-appointed counsel on the other side.
2:03:11 PM
CHAIR CLAMAN asked Mr. Borghesan to respond to the question
about the State of Indiana case addressing the Indiana gun
violence protective order. He commented that the committee had
received a copy of the Indiana Court of Appeals opinion via
email.
MR. BORGHESAN answered that under Redington v. State of Indiana,
997 N.E.2d 356 (2013) decision a particular individual was
observed by law enforcement to be acting strangely and
potentially dangerously. The State of Indiana law enforcement
obtained a warrant to remove Mr. Redington's firearms and then,
ultimately received a court order removing all of his firearms
from his possession. In turn, Mr. Redington challenged the
Indiana statute on constitutional grounds arguing that it
violated the constitutional provision of the Constitution of the
State of Indiana guaranteeing the right to bear arms. The State
of Indiana Court of Appeals ruled that "No," the protective
order statute was constitutional and it did not violate the
Constitution of the State of Indiana's right to bear arm.
2:05:03 PM
CHAIR CLAMAN asked Stacie Kraly, DOL, to describe the
consequences of a civil commitment pursuant to Title 47, and the
full range of rights and privileges a person loses as a result
of a civil commitment.
2:05:46 PM
STACIE KRALY, Chief Assistant Attorney General, Statewide
Section Supervisor, Human Services Section, Civil Division
(Juneau), Department of Law (DOL), answered that when a person
is civilly committed, the most obvious consequence is the loss
of their liberty interest because they are being held by court
order in a psychiatric hospital for treatment and evaluation.
She reiterated her previous testimony and advised that the
initial period of commitment is up to 30-days and the 30-days
can be extended to 90-days, and to 180-days, but at any point
during that time period when the person no longer meets the
commitment criteria, they must be released. She related that
there are also collateral consequences to a civil commitment
which include: under federal law the loss of gun rights; the
social stigma of a civil commitment, and on different occasions
the person may have to identify that civil commitment as a part
of an application for employment or healthcare, or applied in
future legal proceedings to identify that the person does have a
mental illness, which is a predicate to being civilly committed;
it could also be used in other proceedings such as judicial
notice; and there is a potential consequence of having to pay
for the services they received at [the institution]. The cost
of the person's period of commitment is borne by the State of
Alaska, but there is a mechanism by which the state can seek
recovery of some or all of that cost if the person has insurance
or a third-party recovery. Those collateral consequences of a
civil commitment were discussed under In re Joan K. v. Alaska,
273 P.3d 594 (2012), she advised.
2:08:50 PM
REPRESENTATIVE REINBOLD asked Ms. Kraly to describe the
difference between the civil confinement of 2-3 days versus the
30-days, 90-days, and 180-days.
MS. KRALY reiterated that under the civil commitment statute
there is a preliminary evaluation period which, in nomenclature
common parlance, is called ex parte. An ex parte allows for a
person to be taken into custody and evaluated to determine
whether a civil commitment should be granted and that ex parte
order expires after 72-hours. The civil commitment, she
explained, is when it was determined that the person had not
stabilized and truly did need additional commitment, or to be
committed in order to get better. The facility has the ability
to petition the court for an initial period of civil commitment
of 30-days. In that circumstance, two mental health
professionals and a psychiatrist identify that the person is
suffering from a mental illness, is a threat to self or others,
or is gravely disabled, she explained. There is then a full
evidentiary hearing in front of a superior court judge or a
magistrate, the person is given court-appointed counsel, and
other individuals could also be appointed to assist the judge in
determining whether the person met the above criteria.
2:10:24 PM
REPRESENTATIVE REINBOLD asked the success rate, for example, the
state had [committed] 100 people, how many of those people get
better, what are the treatment programs, and what are the
outcomes.
MS. KRALY clarified that the collateral consequences only apply
after the 30-day civil commitment, they do not attach during the
72-hour hold.
2:11:27 PM
REPRESENTATIVE REINBOLD surmised that the gun cannot be removed
during the first 72-hour hold.
CHAIR CLAMAN clarified that typically the guns would not go with
a person [to a psychiatric hospital] so the guns would be left
behind.
REPRESENTATIVE REINBOLD stated that that is her point, that the
person loses their liberties.
MS. KRALY responded that there are consequences, but the
collateral consequences to which the chairman requested
information only attach after the civil commitment, and the
federal law that a person cannot possess or own a firearm
becomes effective upon the civil commitment. When applying for
a job, the application may ask whether the person has been
civilly committed, and the answer does not require a "yes"
unless the person had gone through a 30-day commitment hearing.
The answer does not require a "yes" if the person had only gone
through a 72-hour hold.
2:12:39 PM
REPRESENTATIVE REINBOLD asked whether Ms. Kraly was referring to
18 USC 922(g)(1-9).
MS. KRALY answered in the affirmative.
2:12:59 PM
REPRESENTATIVE REINBOLD commented that it is appropriate to
discuss that code because Ms. Kraly mentioned the cite.
CHAIR CLAMAN interjected that the point of hearing about civil
commitments is because people have asked a lot of questions and
Ms. Kraly can answer to some extent, but Ms. Kraly is not here
as an expert in criminal law, she is here from the DOL civil
division.
2:13:22 PM
REPRESENTATIVE REINBOLD said that she is not an expert but she
can certainly read the law.
MS. KRALY advised that she did not have a copy of the law in
front of her and was unable to recite the sub-sections.
REPRESENTATIVE REINBOLD said that she has the law in front of
her.
CHAIR CLAMAN asked the relevance because Ms. Kraly testified
that there are federal laws requiring that a person committed to
a psychiatric hospital have their guns rights taken away. He
further asked whether there was anything ambiguous about that
statement.
2:14:03 PM
REPRESENTATIVE REINBOLD noted that it is important that people
understand how the federal law works with this because the
discussion is about civil confinement, a federal rule comes into
play ...
CHAIR CLAMAN advised Representative to read the statute and the
committee would then move on.
2:14:16 PM
REPRESENTATIVE REINBOLD referred to 18 USC 922(g)(1-9), which
read as follows:
18 USC 922(g)(1-9) prohibits the following from possessing,
shipping, transporting, or receiving firearms or ammunition
(1) who has been convicted in any court of, a
crime punishable by imprisonment for a term exceeding
one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any
controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental
defective or who has been committed to a mental
institution;
(5) who, being an alien
(A) is illegally or unlawfully in the United
States; or
(B) except as provided in subsection (y)(2),
has been admitted to the United States under a
nonimmigrant visa (as that term is defined in section
101(a)(26) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(26)));
(6) who has been discharged from the Armed Forces
under dishonorable conditions;
(7) who, having been a citizen of the United
States, has renounced his citizenship;
(8) who is subject to a court order that
(A) was issued after a hearing of which such
person received actual notice, and at which such
person had an opportunity to participate;
(B) restrains such person from harassing,
stalking, or threatening an intimate partner of such
person or child of such intimate partner or person, or
engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the
partner or child; and
(C)
(i) includes a finding that such person
represents a credible threat to the physical safety of
such intimate partner or child; or
(ii) by its terms explicitly prohibits
the use, attempted use, or threatened use of physical
force against such intimate partner or child that
would reasonably be expected to cause bodily injury;
or
(9) who has been convicted in any court of a
misdemeanor crime of domestic violence, to ship or
transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or
foreign commerce.
2:15:58 PM
REPRESENTATIVE REINBOLD asked Ms. Kraly whether it is true that
civil confinement interacts with this code and whether they are
related to one another.
CHAIR CLAMAN pointed out that her questions have been asked and
answered, and her reading of the United States Code makes clear
that Ms. Kraly had referred to paragraph (4) and she does not
need to answer that question because Representative Reinbold
answered it for herself.
2:16:27 PM
REPRESENTATIVE EASTMAN referred to the collateral consequences
Ms. Kraly had offered and asked whether there were further
collateral consequences.
MS. KRALY answered that "that a pretty exhaustive list of the
collateral consequences" was identified by the Alaska Supreme
Court in the In re Joan K. matter.
REPRESENTATIVE EASTMAN surmised that these collateral
consequences would not attach to an ex parte 72-hour hearing.
MS. KRALY answered that Representative Eastman was correct.
2:17:02 PM
REPRESENTATIVE EASTMAN noted that he was finding it difficult to
understand whether Ms. Kraly was saying that the collateral
consequences would not interact with an ex parte 72-hour
hearing.
MS. KRALY explained that she had been discussing the collateral
consequences for employment and reiterated that a person would
not have to disclose that they were subject to an ex parte 72-
hour hold petition on an employment application. There is the
social stigma and potentially the financial consequences of the
72-hour hold, and those two collateral consequences may attach
to a 72-hour hold or an ex parte proceeding. A person must be
civilly committed in order for the remaining collateral
consequences to attach and a civil commitment does not occur
until a 30-day petition is filed, she reiterated.
2:18:25 PM
REPRESENTATIVE EASTMAN asked Ms. Kraly to help him understand
how that would work where someone took away a person's gun
rights and their prospective employer asked whether they had
ever been (audio difficulties). He further asked why the person
does not have to disclose that information, and whether there is
some legal protection that no one can come after the person if
they lie and say they had not been involved in such a hearing.
MS. KRALY said she was unsure she understood Representative
Eastman's question.
REPRESENTATIVE EASTMAN offered a scenario that if a person is
party to an ex parte hearing and, for example, the person was a
recipient of protective order request, they attended the
hearing, and the judge decided that was a frivolous request, but
at a future date a prospective employer asked whether the person
had ever been party to that type of hearing. He noted that Ms.
Kraly had testified that the person would not have to disclose
that situation because it is an ex parte 72-hour hearing. He
asked whether the law is giving the person an opportunity to lie
to their prospective employer or whether there is some other
protection so that the disclosure does not become affected.
CHAIR CLAMAN pointed out to Representative Eastman that his
question has the whole process completely convoluted and
confused. He presented an example wherein someone had requested
an ex parte request to institutionalize a person regarding
concerns about the person's mental state, and by being an ex
parte hearing, the person is not present. In the event someone
had related their concern that there was a problem with a
person, the court would issue an ex parte order without the
person present, which is what ex parte means in Latin. The
contested hearing is for the 30-day commitment in which the
person would have a right to be present and a right to counsel.
He explained that the 30-day hearing is where the collateral
consequences would attach, and if the person was committed based
upon the judge's findings, the person would have to report that
situation to a prospective employer. By the simple nature that
the person is not party to an ex parte proceeding, there is
nothing for the person to report, he pointed out.
MS. KRALY responded that Chair Claman was correct.
2:21:04 PM
[CHAIR CLAMAN and Representative Eastman discussed the rulings
of the chair.]
2:21:28 PM
REPRESENTATIVE EASTMAN noted that during the last hearing the
committee did not receive a definitive answer as to the
situation of two people appearing at the courthouse at the same
time with (audio difficulties) maybe a marriage dispute, that
the judge could not choose to hear "both of those, you know,
parties together individually in those respective petitions."
Therefore, if the committee was not able to receive a firm
answer that ex parte means that there is no way for a person to
be involved, he would like to go under the possibility that
someone could appear at a 72-hour proceeding.
CHAIR CLAMAN pointed out that Representative Eastman had changed
his topic from a civil commitment under Title 47, which is what
Ms. Kraly was discussing. Representative Eastman's questions to
Ms. Meade during the last hearing were with regard to domestic
violence protective orders. He further pointed out that that is
not an area in which Ms. Kraly had provided testimony. He asked
Representative Eastman to limit his questions to Ms. Kraly's
expertise as to Title 47, civil commitments.
2:22:35 PM
REPRESENTATIVE EASTMAN offered a scenario wherein a person is
the recipient of an ex parte 72-hour hold request, and a
prospective employer asks whether they were involved in a 72-
hour hold and asked how it is that the person does not have to
disclose that 72-hour hold and he asked whether the law read
that he is permitted to lie to his prospective employer and the
person could not be legally affected.
CHAIR CLAMAN added "With respect to Title 47."
MS. KRALY pointed out that she is not an employment lawyer and
is not able to answer Representative Eastman's specific
questions as to the consequences of not disclosing. Although,
she pointed out, as Chair Claman previously explained, when an
ex parte 72-hour hold is granted, it is exactly as Chair Claman
identified, the proceeding is ex parte and the person is not
involved. She reiterated that a mental health professional, a
friend of the family, a doctor, or a psychiatrist contacts the
judicial officer, explains the circumstances and why they
believe that the person is mentally ill, is a threat to self or
others, or is gravely disabled. Under that scenario, she
offered, the judge can determine, based upon the evidence
offered ex parte, that there is enough evidence for the person
to be held for 72-hours to determine whether the person is truly
mentally ill, truly a threat to self or others, or is truly
gravely disabled. Under those circumstances, she reiterated,
the person would not have the due process that would normally be
afforded to a person to rebut or protect their liberty
interests. Therefore, she further reiterated, that sort of
information should not generally be required to be disclosed
because the person did not have a chance to defend themselves in
those proceedings. It is the 30-day commitment that becomes a
collateral consequence because the person had the entire array
of due process wherein the person was in front of a judge with
their appointed counsel, the person's counsel can cross-examine,
present their own witnesses, and defend against the petition
alleging that the person is mentally ill, a threat to self or
others, or is gravely disabled, she explained.
2:25:21 PM
REPRESENTATIVE EASTMAN asked whether Ms. Kraly is aware of any
provision of law that would limit a prospective employer from
being able to ask these types of questions dealing with an ex
parte hearing setting.
CHAIR CLAMAN added, "Within the Title 47 context."
MS. KRALY said that she was not able to answer that question.
2:25:48 PM
REPRESENTATIVE REINBOLD referred to gun violence protective
orders and surmised that questions could be asked "because she
said something about ex parte and I think it's really important
to get clarification there."
CHAIR CLAMAN reiterated that Ms. Kraly is available to discuss
Title 47 civil commitments with an ex parte component.
Representative Reinbold could ask questions regarding ex parte
hearings in the civil commitment context, Ms. Kraly is not here
to testify about either domestic violence protective orders or
the proposed gun violence protective orders, which is a
different subject in the area of Ms. Kraly's expertise.
2:26:28 PM
REPRESENTATIVE REINBOLD commented that with the ex parte
proceeding, the person receives no representation and cannot
defend themselves, "it went to the immediate family member who
can petition and then it's reporting the evidence and then it -
it says on this chart, 'expires 20-days unless ..."
CHAIR CLAMAN pointed out that Representative Reinbold was asking
questions about the gun violence protective order, which is the
proposal of this statute. He further reiterated that Ms. Kraly
is available to discuss civil commitments under Title 47, and
this particular proposal has nothing to do with civil
commitments. Ms. Kraly was asked to testify in order that the
committee could understand the differences and she is not here
to answer questions about the bill.
2:27:08 PM
REPRESENTATIVE REINBOLD said, "Basically, you were talking very
specifically about ex parte" and mentally ill. She related that
she was not sure whether Ms. Kraly had used the words "and" or
"or" when describing the commitment criteria.
CHAIR CLAMAN advised that Ms. Kraly could answer in the context
of Title 47, as she had answered the question three times and
this is the last time she would answer that question.
MS. KRALY reiterated that in order to be civilly committed,
under AS 47.30, the judge must find by clear and convincing
evidence that a person is mentally ill, and is a threat to self
or others, or is gravely disabled.
2:28:30 PM
CHAIR CLAMAN advised Kaci Schroeder, Department of Law, that the
bill contains language on page 4, referring to "less restrictive
alternatives."
2:28:42 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, noted that "less
restrictive alternatives" is an area in which Ms. Kraly could
respond.
CHAIR CLAMAN noted that in this particular bill there is
reference on page 4, line 13 that "less restrictive
alternatives" have been tried and were ineffective. He asked
whether that is a question for Ms. Kraly to answer.
MS. KRALY responded that she performed research as to "less
restrictive alternatives" and the term is used in approximately
15-16 different places in state law. There is no statutory
definition of "less restrictive alternatives" and in the big
scheme of things it is a fact specific question that would be
evaluated by the agency, but in most cases, it would be
evaluated by the judicial officer. For example, this comes up
in civil commitment hearings, and before the person can be
committed for up to 30-days, the criteria and predicate for
commitment must be established. There must also be an
evaluation that there are "no less restrictive alternative than
placement in a secure psychiatric hospital." In doing so, she
explained, it must be established on an evidentiary basis with
the judge as to whether there is a means to provide care,
custody, keep the person safe, the community safe, or keep them
from harming themselves by not putting them into the hospital.
In that regard, could the person go to, for example, the Juneau
Alliance for Mental Health (JAMHI) Health & Wellness housing in
Juneau, whether there is enough support at JAMHI housing that
the person did not need to be civilly committed, can the person
remain in their own home, can they remain in their parent's
home, can they go to a non-locked secure facility for possible
substance abuse treatment, and so forth. It must be established
with the judge that an array of services had been considered and
were discounted for purposes of maintaining health, safety, and
welfare, she explained. When reviewing how "less restrictive
alternatives" is used in other provisions in state law, she
offered that the same sort of concept comes up, as to whether
all of the other circumstances had been qualitatively and
quantitatively evaluated in order for the judge to determine
what has to happen in this circumstance because there are no
less restrictive alternatives. In the context of a mental
commitment, it would mean something that is less restrictive
than being placed in a psychiatric hospital, she explained.
2:31:57 PM
CHAIR CLAMAN asked, in the context of HB 75, that would mean
some less restrictive alternative than removing a person's
firearms.
MS. KRALY answered that Chair Claman was exactly correct, it
would be a fact specific analysis to present to the court to
advise that all of these other alternatives, such as locking the
guns, removing the guns, and putting them in another place, had
been considered. There could be an array of less restrictive
alternatives potentially presented to the court for the court to
ultimately determine whether those were sufficient to maintain
the safety of the situation, she related.
2:32:32 PM
CHAIR CLAMAN surmised that the less restrictive alternatives in
HB 75, page 4, would be specific to the less restrictive
alternatives for the guns at issue rather than removing the
guns.
MS. KRALY noted that that is how she read the bill.
2:32:56 PM
REPRESENTATIVE REINBOLD surmised that the fact specific analysis
(audio difficulties) more restrictive has to work. For example,
it may be less of a burden to the state if the neighbor with a
locked safe, locks up the person's guns, rather than law
enforcement confiscating the guns. She commented that she was
trying to think of effective and less burdensome alternatives
for the state and possibly more comfortable alternatives "for
the accused." (Audio difficulties throughout this testimony."
MS. KRALY answered that that is exactly the type of evidence
that would be presented to a judge. The judge would evaluate
whether they believed locking a person's guns in a neighbor's
locked safe was an appropriate disposition, such that the gun
violence protective order was not necessary because the guns
were safe.
CHAIR CLAMAN advised Representative Reinbold that in the
evidentiary context, what would more likely arise would be that
"the person came to the court and said, 'I asked this person in
my house 'Can I put your guns in the next-door neighbor's gun
safe because I think you are a risk to yourself?' And, the
person said, 'You can't -- no, I won't let you put the guns in
the neighbor's gun safe.' So, the likelihood is that you're not
going to get someone in court saying, 'the guns from the
neighbor's gun safe' you are going to get the person saying, 'I
tried to get them in the neighbor's gun safe and they wouldn't
agree.'"
2:34:48 PM
REPRESENTATIVE REINBOLD asked whether an amendment should be
proposed that would make certain this was an option, or whether
the court would automatically determine whether there are any
effective options other than law enforcement seizing the guns
and the state having to manage the guns.
MS. KRALY responded that she is not in any position to make a
recommendation on amendments. She offered her belief that the
manner in which the statute is crafted, such as the requirement
that the judge engage, identify, and make a finding as to
whether there are no less restrictive alternatives, meets those
needs because the judge would have to make a specific finding as
to that evidence, she explained.
2:35:54 PM
REPRESENTATIVE REINBOLD surmised that the judge automatically
must see the least restrictive options.
MS. KRALY related that that is how she reads the bill.
CHAIR CLAMAN added that that is what the bill clearly requires.
2:36:11 PM
CHAIR CLAMAN referred to HB 75, [Sec. 6. Sec. 18.65.845], page
8, lines 4-5, which read as follows:
In AS 18.65.815 - 18.65.840, "immediate family
member" means a spouse, child, stepchild, parent, or
stepparent.
CHAIR CLAMAN asked Kaci Schroeder, Department of Law, whether
there was a particular reason it was limited to those
individuals and why there would be limits on more people being
identified, such as grandparents or domestic unmarried partners.
He asked whether it was simply a choice made by the drafter.
2:36:58 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, responded that
the reason it is defined in this manner would be a question for
the drafter or the sponsor. The Department of Law (DOL) views
this as solely in the hands of the legislature as to how it
wants to define that provision.
2:37:12 PM
CHAIR CLAMAN asked whether there are other statutes that allow
these types of requests, other than those listed in this
particular statute.
MS. SCHROEDER answered that the department had not looked at
that issue, there are other statutes in the state code that
define household member, and those definitions are broader, but
it is not the same terminology of "immediate family member."
2:37:34 PM
CHAIR CLAMAN asked whether the domestic violence protective
orders use a definition of household member or does it actually
list the individuals.
MS. SCHROEDER responded that it is household member.
CHAIR CLAMAN asked who is determined to be a household member
under the domestic violence protective order statute in contrast
to this statute.
MS. SCHROEDER referred to AS 18.66.990(5), which read as
follows:
(5) "household member" includes
(A) adults or minors who are current or former
spouses;
(B) adults or minors who live together or who have
lived together;
(C) adults or minors who are dating or who have dated;
(D) adults or minors who are engaged in or who have
engaged in a sexual relationship;
(E) adults or minors who are related to each other up
to the fourth degree of consanguinity, whether of the
whole or half blood or by adoption, computed under the
rules of civil law;
(F) adults or minors who are related or formerly
related by marriage;
(G) persons who have a child of the relationship; and
(H) minor children of a person in a relationship that
is described in (A) - (G) of this paragraph;
2:39:50 PM
REPRESENTATIVE REINBOLD asked Ms. Schroeder to describe what
this bill does that is not already in federal or state statutes.
MS. SCHROEDER replied that she cannot speak to that question and
she could only speak to the state criminal aspects of HB 75.
2:40:10 PM
REPRESENTATIVE REINBOLD asked Ms. Schroeder what she could speak
to on this bill.
MS. SCHROEDER answered that this bill establishes a gun violence
protective order that is a civil proceeding and it is not
something within which the criminal division would be involved.
However, she said, under this bill, the violation of the order
would become a crime which is when the criminal division would
get involved and potentially prosecute for the violation of the
protective order. She added that that would be the extent of
the criminal division's involvement.
2:40:37 PM
REPRESENTATIVE REINBOLD asked why this would be a civil
proceeding and not a criminal proceeding.
MS. SCHROEDER answered that protective orders, in general, are
civil proceedings because the state is not involved, it is one
party against another party. The violation of those orders
generally, whether it be a domestic violence, sexual assault, or
stalking protective order, is a crime wherein the state is
involved so it is a criminal matter.
2:41:08 PM
REPRESENTATIVE REINBOLD asked when the United States Code, that
she previously read, is invoked in this whole process.
MS. SCHROEDER advised that that question is outside of her area
of expertise as she practices solely in state criminal law.
2:41:46 PM
REPRESENTATIVE REINBOLD asked whether the United States Code
previously referenced, is applicable in the department and for
Alaskans. Representative Reinbold commented that "I would say
yes."
CHAIR CLAMAN pointed out to Representative Reinbold that Ms.
Schroeder does not need to answer that question because the
federal law applies to everyone. The authority to prosecute
federal law is given solely to the federal government and state
prosecutors do not have authority to prosecute federal crimes,
which has been the law of the land for centuries.
2:42:21 PM
REPRESENTATIVE REINBOLD commented that there is currently a "big
movement" wherein the Anchorage Police Department is working
with the Alaska State Troopers and is also working with the
federal government on all of the crime taking place in the
state. It appears that, at some point, the USC cite would be
invoked and she asked, at what point would the criminal division
invoke this USC cite if collaborating.
CHAIR CLAMAN ruled that he would not ask Ms. Schroeder to answer
that question, if the FBI, APD, the Alaska State Troopers
cooperate, they make decisions about where folks will be
charged. There will be crimes charged in federal court that
have multi-agency obligations and they are charged only with
federal crimes in federal court. The same is true with the
cooperation between the state and the FBI in what becomes state
prosecutions wherein the person is charged with state crimes in
state courts because the particular codes are jurisdictional, he
said.
[HB 75 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB387 ver A 3.16.18.PDF |
HJUD 3/16/2018 1:00:00 PM HJUD 4/4/2018 1:00:00 PM |
HB 387 |
| HB387 Sponsor Statement 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM HJUD 4/4/2018 1:00:00 PM |
HB 387 |
| HB387 Sectional Analysis ver A 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB387 Additional Document-CHPA Testimony 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB387 Fiscal Note DHSS-PHAS 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB387 Fiscal Note DPS-COMM 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB387 Fiscal Note LAW-CRIM 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB075 ver D 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Sponsor Statement 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Sectional Analysis 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Washington Post Article - Five States Allow Gun Seizures 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Washington Post Article - Missouri Case 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-The Trace Article - ERPOs Reduce Suicides 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Sandy Hook Promise Letter 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Sandy Hook Promise Letters (Part 1) 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Public Comment (Part 1) 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Fact Sheet 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note DHSS-EPI 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note LAW-CRIM 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note DPS-CJISP 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note DPS-DET 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-NYT Opinion - Mental Health System Can't Stop Mass Shooters 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Opposing Document-Public Comment (Part 1) 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note JUD-ACS 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Public Comment (Part 3) 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Sandy Hook Promise Letters (Part 2) 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Opposing Document-Public Comment (Part 2) 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Additional Document-Redington v. State 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Connecticut, Indiana, & Alaska Comparison Table 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |