02/08/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Overview(s): Briefing on the Myers and Wetherhorn Alaska Supreme Court Decisions | |
| HB7 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 90 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 7 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 8, 2007
1:08 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Nancy Dahlstrom, Vice Chair
COMMITTEE CALENDAR
OVERVIEW(S): BRIEFING ON THE MYERS AND WETHERHORN ALASKA
SUPREME COURT DECISIONS
- HEARD
HOUSE BILL NO. 7
"An Act relating to false caller identification."
- MOVED CSHB 7(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 90
"An Act relating to bail."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 7
SHORT TITLE: FALSE CALLER IDENTIFICATION
SPONSOR(S): REPRESENTATIVE(S) LYNN, GARDNER
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) JUD
01/22/07 (H) JUD AT 1:00 PM CAPITOL 120
01/22/07 (H) Scheduled But Not Heard
01/24/07 (H) JUD AT 1:00 PM CAPITOL 120
01/24/07 (H) Heard & Held
01/24/07 (H) MINUTE(JUD)
01/31/07 (H) JUD AT 1:00 PM CAPITOL 120
01/31/07 (H) Heard & Held
01/31/07 (H) MINUTE(JUD)
02/01/07 (H) JUD AT 1:00 PM CAPITOL 120
02/01/07 (H) Heard & Held
02/01/07 (H) MINUTE(JUD)
02/05/07 (H) JUD AT 1:00 PM CAPITOL 120
02/05/07 (H) Heard & Held
02/05/07 (H) MINUTE(JUD)
02/08/07 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JAMES B. GOTTSTEIN, ESQ., President and CEO
Law Project for Psychiatric Rights, Inc.
Anchorage, Alaska
POSITION STATEMENT: Presented the briefing on the Myers and
Wetherhorn Alaska Supreme Court decisions.
JANE W. PIERSON, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Reviewed the changes encompassed in
Version M of HB 7.
DIRK MOFFATT, Staff
to Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 7, responded to a
question on behalf of Representative Lynn, joint prime sponsor.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 7.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:08:38 PM. Representatives Coghill, Lynn,
Holmes, Gruenberg, and Ramras were present at the call to order.
Representative Samuels arrived as the meeting was in progress.
^OVERVIEW(S): BRIEFING ON THE MYERS AND WETHERHORN ALASKA
SUPREME COURT DECISIONS
1:09:04 PM
CHAIR RAMRAS announced that the first order of business would be
a briefing on the Myers v. Alaska Psychiatric Institute and
Wetherhorn v. Alaska Psychiatric Institute Alaska Supreme Court
decisions.
1:09:47 PM
JAMES B. GOTTSTEIN, ESQ., President and CEO, Law Project for
Psychiatric Rights, Inc., first opined that Alaska's current
mental health system is set up such that it doubles the number
of people who never recover after being diagnosed with a serious
mental illness. He then went on to say that his organization
focuses on unwarranted court ordered psychiatric drugging,
which, he relayed, he calls "forced drugging." He noted that
although there is no forced electroshock in Alaska, psychiatric
drugs have the same effect as a lobotomy - these drugs
essentially act as chemical lobotomies.
MR. GOTTSTEIN relayed that the Alaska Supreme Court, in two
recent cases, has held that certain portions of Alaska's
statutes are unconstitutional. For example, AS 47.30.839 says
that if someone is found to be incompetent to make a decision
regarding whether he/she should be taking drugs, then the
hospital gets to make the choice for that person, and this
assumes that whatever the hospital psychiatrist wants is the
right thing for the person. He opined that during the course of
competency determinations, the Public Defender Agency (PDA)
doesn't actually present any real defenses for its clients - it
ends up being phony representation - and thus what he termed the
involuntary system is operating way outside the bounds of
constitutionality.
MR. GOTTSTEIN said that the Alaska Supreme Court, in the Myers
case, held that the question of whether it's in someone's best
interest to be forcibly drugged is a legal matter that a court
must decide by clear and convincing evidence. Constitutionally,
he suggested, before the government can deprive someone of the
right to choose [not] to take mind altering drugs, it must show
both that forced drugging is in the person's best interest and
that there are no less-restrictive alternatives available - with
some limitations with regard to reasonableness and expense.
Just because the State chooses not to make a less-restrictive
alternative available, he opined, does not allow it to forcibly
drug someone.
MR. GOTTSTEIN said he is concerned because it appears to him
that the Alaska Psychiatric Institute (API) is getting around
the Myers holding and thus defying the court's decision. He
opined that one of the problems is a lack of viable
alternatives, because when the State doesn't have a viable
alternative to offer, it will lie to the court, saying it has
met conditions when it hasn't, in order to be allowed to
forcibly drug someone.
1:18:29 PM
MR. GOTTSTEIN, in response to a question, said that it is not
clear what is going on with regard to whether less restrictive
alternatives really are available, because although the API has
cited a very dramatic drop in the number of proceedings under AS
47.30.839, no less drugging is occurring. For example, two
years ago there were 500 such cases, and now there are only 50
such cases, but the same amount of drugging is occurring; this
raises the question of what is really going on.
MR. GOTTSTEIN referred to the Wetherhorn case, and noted that
under the involuntary commitment statutes, people can be
committed if they are either a danger to themselves or others,
or are gravely disabled, which is defined in AS 47.30.915(7) as:
(7) "gravely disabled" means a condition in which
a person as a result of mental illness
(A) is in danger of physical harm arising from
such complete neglect of basic needs for food,
clothing, shelter, or personal safety as to render
serious accident, illness, or death highly probable if
care by another is not taken; or
(B) will, if not treated, suffer or continue to
suffer severe and abnormal mental, emotional, or
physical distress, and this distress is associated
with significant impairment of judgment, reason, or
behavior causing a substantial deterioration of the
person's previous ability to function independently;
MR. GOTTSTEIN offered his belief that although he agrees with
subparagraph (A), the criteria listed in subparagraph (B) could
apply to anyone. In Wetherhorn, his organization proffered to
the court that under the [Constitution], a person can't be
locked up for being mentally ill unless it can be demonstrated
that the person can't survive safely in freedom - a concept, he
noted, similar to that found in AS 47.30.915(7)(A). The Alaska
Supreme Court, he opined, agreed with his organization's point,
adding his interpretation that this means that the court held AS
47.30.915(7)(B) to be unconstitutional.
MR. GOTTSTEIN said he views the current system - wherein
people's rights are being violated as a matter of course - as
being broken at the PDA level, and characterized the PDA as
phony. At the heart of the problem is a lack of representation,
a lack of constitutionally-required alternatives, and the extent
to which children in state custody are being drugged, often with
unapproved drugs, simply for acting out.
[Following was a brief discussion regarding the prevalence of
medicating of children not in state custody simply so that they
will behave in the classroom.]
REPRESENTATIVE COGHILL asked Mr. Gottstein to substantiate his
accusations against the API and the PDA, asked whether the PDA's
problem can be traced to either a resource issue or a competency
issue, and asked for more information about kids in state
custody being drugged.
1:26:48 PM
MR. GOTTSTEIN relayed that the backup material he provided the
committee contains quotes from Professor Michael L. Perlin, who,
Mr. Gottstein said, has spoken about the endemic nature of
untrue testimony by psychiatrists. Whatever the legal standard
is for being able to drug a person against his/her will or for
being able to prove a person is incompetent, psychiatrists
giving testimony will simply recite certain words in order to
meet that legal standard, and those psychiatrists are never
challenged by the PDA. In Wetherhorn, he asserted, the PDA
didn't do anything on behalf of the client, adding that this is
typical. In the 10-20 [commitment] hearings held weekly at the
API, almost all the clients are involuntarily committed, and if
there is a "forced drugging" petition, they are all forcibly
drugged; he characterized these hearings as an assembly line
process that does not resemble a true legal proceeding. He
posited that the current situation is partly the result of
competency and resource issues, but also a result of an attitude
problem: "If my client wasn't crazy, [he'd/she'd] know [that]
this is good for [him/her]."
MR. GOTTSTEIN reiterated his belief that the current mental
health system is turning people into permanent mental patients -
permanent wards of the state.
REPRESENTATIVE COGHILL again said he wants Mr. Gottstein to
substantiate his claims against the API [and the PDA].
MR. GOTTSTEIN reiterated his comments regarding Professor
Perlin.
REPRESENTATIVE COGHILL recounted a situation wherein a friend of
his suffered a head injury, and the authorities, instead of
getting him the medical help he needed, had him involuntarily
committed and drugged.
MR. GOTTSTEIN, on the issue of children in state custody being
drugged, said he has been trying to get the State to research
which drugs have been given to those children, but it doesn't
appear as the though the State is compiling those kinds of
records. According to statistics from other states,
approximately 70 percent of the children in state custody are
receiving psychiatric drugs.
REPRESENTATIVE COGHILL surmised that Mr. Gottstein's claims
against [the State, the API, and the PDA] are merely suspicions.
MR. GOTTSTEIN said that children in state custody who are sent
out of state to residential treatment centers are locked up and
drugged.
CHAIR RAMRAS relayed that he's heard from the Department of
Corrections (DOC) that prisoners try to fake a mental disease or
illness in order to have a component of leniency added to their
sentence, and that the burden of caring for the mentally ill is
being shifted to the DOC.
1:33:30 PM
MR. GOTTSTEIN acknowledged that point, adding that there is no
question that the DOC is the largest in-patient psychiatric
facility in the state.
REPRESENTATIVE COGHILL asked whether, since the Wetherhorn and
Myers decisions, there has been a challenge to the DOC's
evaluation process.
MR. GOTTSTEIN indicated that there has been, the Bavilla v.
Alaska Department of Corrections case, adding that the DOC has a
forced drugging procedure modeled after a U.S. Supreme Court
case, Washington v. Harper. In the Bavilla case, he offered,
the State admitted that it had violated Washington. Thus it is
clear to him, he relayed, that the DOC is not following the
guidelines set out by the U.S. Supreme Court. In the Bavilla
case, the DOC claimed that the procedure wasn't an adversarial
process and so wouldn't allow Ms. Bavilla to be represented or
bring forth witnesses. He clarified that he knows that some
people find the drugs helpful, and that he believes that those
people should have access to those drugs; however, the people
who don't want those drugs shouldn't be forced to take them, and
certainly not when [the State] has not complied with the
statutory and constitutional requirements for doing so.
MR. GOTTSTEIN, in response to a question regarding his claims
against the API, said that his is an informed opinion that will
be established as fact, and reiterated that comment with regard
to his claim - outlined in his backup material - that there has
been illegal use of ex parte proceedings. On the latter point,
he offered, although ex parte orders have a legitimate use, the
judge should look at each individual case. He said this same
scrutiny is not given to those cases involving psychiatric
commitment, and in some cases - for example, after a person is
in custody - the use of ex parte orders is not even necessary
and yet they are still being used.
1:39:26 PM
REPRESENTATIVE LYNN offered his belief that part of the problem
is that many homeless people who are mentally ill are no longer
being kept in institutions.
MR. GOTTSTEIN, in response to a question, said that he works pro
bono for the Law Project for Psychiatric Rights, Inc., which is
a 501(c)(3) nonprofit corporation that accepts private donations
and sometimes gets attorney fee awards from the cases it takes
on. In response to further questions, he said he doesn't have
any suggested language to replace that which was found to be
unconstitutional in the Wetherhorn and Myers cases, though he
does believe that the statutes should conform to the holdings in
those cases, and that he has gone before the Alaska Mental
Health Board (AMHB) and has found it to be supportive, though
he's not had a chance to speak to the AMHB since the Wetherhorn
case was decided. In conclusion, he offered his belief that the
problems arising in the current mental health system stem from a
failure of representation.
HB 7 - FALSE CALLER IDENTIFICATION
1:44:27 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 7, "An Act relating to false caller
identification." [Before the committee was the proposed
committee substitute for HB 7, Version LS0057\C, Bannister,
2/2/07, which had been adopted as the work draft and amended on
2/5/07.]
1:45:46 PM
REPRESENTATIVE COGHILL moved to adopt the proposed committee
substitute (CS) for HB 7, Version 25-LS0057\M, Bannister,
2/8/07, as the work draft.
REPRESENTATIVE LYNN objected for the purpose of discussion.
1:46:33 PM
JANE W. PIERSON, Staff to Representative Jay Ramras, Alaska
State Legislature, reviewed the changes encompassed in Version
M. On page 1, lines 4-5, the language, "A person may not insert
false information into a caller identification system with the
intent to defraud" was deleted and the following language
inserted: "A person may not make a call and insert false
information into a caller identification system with the intent
to defraud". She explained that the aforementioned change
should satisfy both the committee's amendment to insert "or
transmit" and Legislative Legal and Research Services'
recommendation that such language would make the [bill
consistent]. She then pointed out that the language on page 1,
lines 10-11, was developed by Legislative Legal and Research
Services in order to address the committee's [request to have
language that would help define the crime]. The language
inserted read:
(c) A person who violates (a) of this section by
inserting, whether by making one call or more than one
call, false information into
(1) four caller identification systems is guilty
of a class B misdemeanor;
(2) five or more caller identification systems is
guilty of a class A misdemeanor.
MS. PIERSON highlighted that Version M also includes an
additional definition of "call" on page 2, lines 2-3, as
follows: "means a call made by telephone, computer, or similar
communication device or technology, whether transmitted by wire
or wireless means;".
REPRESENTATIVE SAMUELS drew attention to the new language on
page 1, line 13, which refers to "four caller identification
systems", and questioned whether it should instead use the
following language: "less than five".
MS. PIERSON relayed that she just spoke with Anne Carpeneti and
was advised that the language should refer to "less than five".
REPRESENTATIVE LYNN removed his objection.
CHAIR RAMRAS announced that Version M was before the committee.
1:49:54 PM
REPRESENTATIVE SAMUELS made a motion to adopt Amendment 1, to
delete the word, "four" on page 1, line 13, and replace it with
the words, "less than five". There being no objection,
Amendment 1 was adopted.
REPRESENTATIVE COGHILL asked whether the language in Version M
addresses the due process issue raised in the memorandum from
Theresa Bannister, the drafter, dated 2/8/07.
1:50:57 PM
DIRK MOFFATT, Staff to Representative Bob Lynn, Alaska State
Legislature, remarked on behalf of Representative Lynn, joint
prime sponsor, that there is some disagreement between
Legislative Legal and Research Services and the Department of
Law on that issue.
1:51:17 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
offered her understanding from Ms. Bannister's memorandum that
Ms. Bannister is concerned that if one inserts information into
five caller identification systems, a prosecutor could charge
the individual with either a class A misdemeanor or class B
misdemeanor. The adoption of Amendment 1, however, should
satisfy that concern, Ms. Carpeneti opined. In response to a
comment, she pointed out that similar leeway can be found in all
criminal statutes.
REPRESENTATIVE GRUENBERG opined that the drafter, with regard to
the concern she stated in her memorandum, is wrong.
MS. CARPENETI concurred. In further response to Representative
Gruenberg, she said she isn't aware of any case that is on point
to support the conclusions of the drafter. However, she
recalled that there are decisions addressing a situation in
which there are two different statutes of different levels and
the act of the defendant could reasonably be charged under
either offense. The aforementioned is a constitutional problem
and results in the individual being charged under the less
serious offense.
REPRESENTATIVE GRUENBERG noted that as a matter of logic, the
greater always includes the lesser.
CHAIR RAMRAS concurred.
MS. CARPENETI, in response to a comment, informed the committee
that prosecutors have the discretion to charge and resolve cases
at a lower level than they might possibly be charged or
resolved. The aforementioned would apply with regard to
[Version M, as amended].
1:55:40 PM
REPRESENTATIVE SAMUELS moved to report the proposed CS for HB 7,
Version 25-LS0057\M, Bannister, 2/8/07, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 7(JUD) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 1:57 p.m.
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