02/08/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB307 | |
| HB281 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 307 | TELECONFERENCED | |
| += | HB 237 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 281 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 8, 2008
1:03 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn (via teleconference)
Representative Ralph Samuels
Representative Lindsey Holmes
Representative Mike Doogan
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Craig Johnson
COMMITTEE CALENDAR
HOUSE BILL NO. 307
"An Act relating to penalizing certain misdemeanor domestic
violence offenses as felonies."
- MOVED HB 307 OUT OF COMMITTEE
HOUSE BILL NO. 281
"An Act extending the statute of limitations for the filing of
complaints with the Alaska Public Offices Commission involving
state election campaigns."
- HEARD AND HELD
HOUSE BILL NO. 237
"An Act authorizing the governor to remove or suspend a member
of the Board of Regents of the University of Alaska for good
cause; establishing a procedure for the removal or suspension of
a regent; and providing for an effective date."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 307
SHORT TITLE: DOMESTIC VIOLENCE OFFENSES
SPONSOR(S): REPRESENTATIVE(S) HOLMES, GARA, DAHLSTROM,
FAIRCLOUGH, JOHNSON, BUCH, HARRIS, DOLL
01/11/08 (H) PREFILE RELEASED 1/11/08
01/15/08 (H) READ THE FIRST TIME - REFERRALS
01/15/08 (H) JUD, FIN
02/08/08 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 281
SHORT TITLE: CAMPAIGN FINANCE COMPLAINTS
SPONSOR(S): REPRESENTATIVE(S) LYNN, GATTO
01/04/08 (H) PREFILE RELEASED 1/4/08
01/15/08 (H) READ THE FIRST TIME - REFERRALS
01/15/08 (H) STA, JUD
01/17/08 (H) STA AT 8:00 AM CAPITOL 106
01/17/08 (H) Heard & Held
01/17/08 (H) MINUTE(STA)
01/19/08 (H) STA AT 11:00 AM CAPITOL 106
01/19/08 (H) Moved CSHB 281(STA) Out of Committee
01/19/08 (H) MINUTE(STA)
01/22/08 (H) STA RPT CS(STA) NT 1DP 3NR 2AM
01/22/08 (H) DP: LYNN
01/22/08 (H) NR: ROSES, COGHILL, DOLL
01/22/08 (H) AM: JOHNSON, JOHANSEN
01/22/08 (H) FIN REFERRAL ADDED AFTER JUD
01/25/08 (H) JUD AT 1:00 PM CAPITOL 120
01/25/08 (H) -- MEETING CANCELED --
02/01/08 (H) JUD AT 1:00 PM CAPITOL 120
02/01/08 (H) Heard & Held
02/01/08 (H) MINUTE(JUD)
02/06/08 (H) JUD AT 1:00 PM CAPITOL 120
02/06/08 (H) <Bill Hearing Rescheduled to 02/08/08>
02/08/08 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE ANNA FAIRCLOUGH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments as a joint prime sponsor
of HB 307.
GERALD LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: As the drafter, responded to questions
during discussion of HB 307.
PEGGY BROWN, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 307, but
expressed concerns.
CHRIS ASHENBRENNER, Executive Director
Council on Domestic Violence and Sexual Assault (CDVSA)
Department of Public Safety (DPS)
Juneau, Alaska
POSITION STATEMENT: Indicated support of HB 307.
JEFFREY LANDVATTER
Public Safety Employees Association, Inc. (PSEA);
State Trooper
A Detachment
Division of Alaska State Troopers
Department of Public Safety (DPS)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 307.
MELANIE JAMES, Domestic Violence Sexual Assault (DVSA) Advocate
SeaView Community Services ("SeaView")
Seward, Alaska
POSITION STATEMENT: Testified in support of HB 307.
TIM WHEELER
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 307.
JUDY CORDELL, Executive Director
Abused Women's Aid in Crises (AWAIC)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of the concept of
HB 307, but expressed concerns.
RICK SVOBODNY, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 307, and indicated support of the concept embodied in the
bill.
BROOKE MILES, Director
Alaska Public Offices Commission (APOC)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 281.
SHIRLEY R. DEAN, Commissioner
Alaska Public Offices Commission (APOC)
Department of Administration (DOA)
Douglas, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 281.
JANET DeYOUNG, Chief Assistant Attorney General - Statewide
Section Supervisor
Labor and State Affairs Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 281.
JOYCE ANDERSON, Ethics Committee Administrator
Select Committee on Legislative Ethics
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 281.
MIKE SICA, Staff
to Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 281, provided some
information on behalf of Representative Lynn, one of the bill's
joint prime sponsors.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:03:37 PM. Representatives Coghill,
Samuels, Holmes, Doogan, Dahlstrom, and Ramras were present at
the call to order. Representative Lynn (via teleconference)
arrived as the meeting was in progress. Representative Johnson
was also in attendance.
HB 307 - DOMESTIC VIOLENCE OFFENSES
1:04:07 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 307, "An Act relating to penalizing certain
misdemeanor domestic violence offenses as felonies."
1:05:57 PM
REPRESENTATIVE HOLMES, speaking as one of the bill's joint prime
sponsors, said that HB 307 is intended to address Alaska's high
rate of domestic violence (DV), and proposes something that was
recommended by the task force created by legislation last year.
Over 6,000 cases of DV in Alaska were reported in 2005, and
Alaska ranks highest in the nation with regard to female victims
killed by male perpetrators [of DV]. House Bill 307 provides
that if one has been convicted twice before for DV crimes, then
the third [or subsequent] conviction for a DV crime will bring
with it a class C felony penalty. Referring to the U.S. Supreme
Court case, Blakely v. Washington, 124 S. Ct. 2531 (U.S., 2004),
she mentioned that the proposed increased penalty might only
apply in situations in which the prior DV offenses occur after
the effective date of the Act. By the time a person is
convicted of more than two DV crimes, he/she has probably
committed many more such crimes, and so a message needs to be
sent that this type of behavior is unacceptable.
REPRESENTATIVE DAHLSTROM, speaking as one of the bill's joint
prime sponsors, remarked that HB 307 takes a small step towards
addressing the problem of DV in Alaska.
1:11:04 PM
REPRESENTATIVE ANNA FAIRCLOUGH, Alaska State Legislature,
speaking as one of the bill's joint prime sponsors, said she
supports HB 307, and asked the committee to do the same. She
noted that another legislator has said, "What we allow, we
encourage." Therefore, she opined, if people start to "dis-
incentivize" acceptance of violence in the home, then domestic
violence will start to be reduced.
REPRESENTATIVE SAMUELS pointed out, though, that the language on
page 2, lines 7-8, says in part, "References to previous
convictions include convictions before, on, or after the
effective date of this Act", and expressed a preference for that
concept as opposed to requiring that the prior convictions occur
after the bill's effective date.
REPRESENTATIVE HOLMES relayed that that issue has not yet been
clarified.
1:15:02 PM
GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency (LAA), speaking as the drafter, in response to a question
regarding Section 2 of HB 307, explained that a third or
subsequent DV crime, even if that third or subsequent DV crime
is a misdemeanor, will subject the perpetrator to a class C
felony penalty. Characterizing that third or subsequent DV
crime as an inchoate crime, he explained that it will become a
class C felony crime once the predicate DV crimes and the
elements of that current DV crime are proven. He noted that the
way he drafted the language of Section 2, it specifies that a
third or subsequent DV crime will both become a class C felony
crime and subject the perpetrator to a class C felony penalty.
In response to questions, he indicated that existing statutes
provide for a similar increase in levels of crime and penalties
for multiple driving under the influence (DUI) crimes and
multiple shoplifting crimes, and for an increase in penalties
for certain multiple felony crimes. He observed that it is
within the purview of the legislature to determine what level
crimes should be and to establish penalties for crimes as it
sees fit.
MR. LUCKHAUPT said that HB 307 is designed to look back at a
perpetrator's prior DV crimes, and pointed out that in Blakely,
Justice Scalia specifically stated that the court's decision in
Blakely doesn't apply to prior convictions; in other words,
prior convictions don't have to be proven to a jury. Mr.
Luckhaupt reiterated that prior convictions are already being
taken into consideration for other types of crimes, adding that
after Blakely, the state's sentencing statutes were rewritten to
specifically say that the fact of prior convictions doesn't have
to be proven to a jury. Furthermore, although the prosecution
might be required to prove to a jury that the prior convictions
were really for violent crimes occurring against a household
member, since that is what distinguishes DV crimes from all
other violent crimes against a person, the sentences themselves
for the prior convictions might provide sufficient indication
that they were for DV crimes, thus alleviating the need to have
the jury consider the fact that the victim was a household
member of the perpetrator.
MR. LUCKHAUPT referred to the memorandum [included in members'
packets] he'd written on this issue, and explained that the U.S.
Supreme Court considered a similar federal law providing greater
punishment for those committing multiple, aggravated burglaries,
and ruled that if the sentences themselves don't indicate
whether the prior convictions were for same type of crime as the
current crime, then the fact that they were must be proven to a
jury in order to comply with Blakely. The court in that
aforementioned case, however, acknowledged that Blakely doesn't
really favor defendants who don't wish to have a jury hear about
prior convictions at all. He surmised, therefore, that even if
Blakely somehow applies with regard to HB 307 and the fact of
the prior convictions must be proven to a jury, doing so might
not be "all that terrible" from a prosecutorial standpoint.
1:22:47 PM
PEGGY BROWN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), said that the ANDVSA is
1,000 percent in support of HB 307, which, by specifically
targeting repeat DV offenders, would send a message that
domestic violence is a very serious crime and will no longer be
tolerated. However, the ANDVSA is concerned that the current
system doesn't have a way to track how many DV crimes are
actually charged as such but then "plead down" to lesser crimes;
if it is not known how often such occurs, then simply increasing
the penalty to a felony for a third or subsequent DV offense
might just be giving DV perpetrators more to bargain over. This
lack of information means that even if HB 307 becomes law, no
one will really know how effective it is or what impact it has.
For example, even though Nevada passed similar legislation,
authorities there have indicated that they don't really know how
effective their law is or what impact it's having on
perpetrators.
MS. BROWN relayed that another of the ANDVSA's concerns pertains
to how HB 307 will affect women, particularly those in rural
Alaska, who [mistakenly] get arrested for DV under "Alaska's
mandatory arrest law," since they are unlikely to contest such
charges because they feel they must return home to their
children as soon as possible and they are not educated about the
consequences of allowing such charges to go uncontested. In
closing, she relayed that the ANDVSA is also concerned with the
lack of prosecutors in Alaska.
REPRESENTATIVE HOLMES relayed that Section 1 of the bill is
intended to address the ANDVSA's concern regarding women who
mistakenly get arrested for DV under Alaska's mandatory arrest
law; Section 1 [which adds language to the uncodified law of
Alaska] states that before accepting a plea, the judge must
determine that the person being charged under Section 2 of the
bill really is the aggressor and not the victim.
MS. BROWN thanked the joint prime sponsors for addressing that
point.
REPRESENTATIVE DAHLSTROM concurred that the sponsors are
attempting to address that issue.
1:31:34 PM
CHRIS ASHENBRENNER, Executive Director, Council on Domestic
Violence and Sexual Assault (CDVSA), Department of Public Safety
(DPS), relayed that the CDVSA has submitted a letter of support
for HB 307. Domestic violence is an extremely serious problem,
and the goal is to reduce it and eliminate it. House Bill 307
will help send the message that DV will not be tolerated in
Alaska, and society's response to DV is the key to eliminating
it. Repeat DV offenders just seem to keep getting away with
their DV crimes, and don't seem to care about the current
penalties. Serving three days, ten days, or thirty days in jail
is not much of a deterrent for repeat DV offenders, she relayed,
adding that it's quite telling when a victim of domestic
violence says, "I don't want him to go to jail because he'll be
out in a few days and then he'll really be pissed off"; that
victim's safety was compromised by the justice system's lack of
[adequate] response. She relayed that as of 2005, 26 other
states have some sort of enhanced penalties for [repeat DV
offenders], and said that she and the CDVSA believe that Alaska
should join those states. Ms. Ashenbrenner said she concurs
with Ms. Brown's comments and concerns, and mentioned that the
aforementioned task force brought forth a lot of recommendations
to improve the justice system with regard to holding domestic
violence offenders accountable.
1:35:40 PM
JEFFREY LANDVATTER, Public Safety Employees Association, Inc.
(PSEA); State Trooper, A Detachment, Division of Alaska State
Troopers, Department of Public Safety (DPS), said that domestic
violence is one of the most dangerous crimes that law
enforcement officers respond to; officers are in a very high
state of alert when responding to such calls, and, whenever
possible, at least two officers respond in order gain control of
these very volatile situations. The state takes DV crimes very
seriously, but a repeat offense in even the most dangerous DV
situations is still just a misdemeanor. House Bill 307, he
opined, will send a clear message to DV offenders that if they
continue to commit DV crimes, they are going to be charged with
a felony, adding his belief that the proposed law will help to
keep the most violent offenders off the street, thereby making
Alaska communities safer.
1:37:09 PM
MELANIE JAMES, Domestic Violence Sexual Assault (DVSA) Advocate,
SeaView Community Services ("SeaView"), relayed that both she
and SeaView support HB 307. A report from the Centers for
Disease Control and Prevention (CDC) indicates that 25 percent
of women and 11 percent of men are victims of "intimate partner
violence," and according to her experience as a DVSA advocate,
she relayed, many women are victimized by men who have battered
all the women they've been in relationships with. For example,
SeaView tracked one batterer who'd been arrested for assault in
the fourth degree for beating four of the women he'd had a
relationship with, and found he'd been in relationships with and
beaten five other women who never pressed charges. Because this
man only used his fists when beating up his domestic partners,
he was never charged with anything other than assault in the
fourth degree. House Bill 307 would give prosecutors a tool to
remove such DV offenders from the community for a longer period
of time. In conclusion, she asked that HB 307 be passed from
committee.
1:38:46 PM
TIM WHEELER relayed that his 22-year-old daughter has recently
been charged with her second DV crime because the man she is
living with assaults her and, then, when she struggles with him
to protect herself, he calls the police and reports that she's
assaulting him, and she is the one who ends up getting thrown in
jail. Mr. Wheeler said he supports HB 307, but cautioned that
more efforts towards educating people about the problem of
domestic violence must also be made, since his daughter is the
third woman her current boyfriend has done this with.
CHAIR RAMRAS acknowledged that laws sometimes have unintended
consequences.
1:45:59 PM
JUDY CORDELL, Executive Director, Abused Women's Aid in Crises
(AWAIC), said that the AWAIC supports the intent of HB 307, but
has concerns regarding the bill's [potential] unintended
consequences. One concern pertains to the lack of data
regarding conviction rates; such data would answer the question
of whether even the current laws are being enforced,
particularly given that the system currently allows DV
perpetrators to plead down their crimes to disorderly conduct
and thereby avoid any sentencing enhancement for subsequent DV
offenses. Another concern - as highlighted by the prior
testifier - pertains to law enforcement's ability to determine
who the "primary aggressor" really is in DV situations. Yet
another concern pertains to HB 307's use of the term, "domestic
violence"; specifically, the AWAIC would prefer that that term
be replaced with the term, "interpersonal violence".
REPRESENTATIVE HOLMES concurred that the lack of conviction data
regarding DV crimes is troubling, and noted that the
aforementioned task force has discussed that issue.
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 307.
REPRESENTATIVE COGHILL asked whether the joint prime sponsors
had considered changing the term, "domestic violence" to the
term, "interpersonal violence".
REPRESENTATIVE HOLMES said she had not, but offered to research
that issue further.
REPRESENTATIVE COGHILL, noting that such a language change might
have an impact on prosecutions, asked whether it would also
address the concern pertaining to [law enforcement officers
incorrectly charging the wrong person with a DV crime].
REPRESENTATIVE HOLMES posited that in addition to the
requirement outlined in Section 1, prosecutorial discretion
should also help ensure that the bill won't be applied to the
victims of DV. She remarked, though, that she would be willing
to consider possible changes to HB 307 that would more
effectively address that issue.
1:51:51 PM
RICK SVOBODNY, Deputy Attorney General, Central Office, Criminal
Division, Department of Law (DOL), in response to a question,
said that currently Alaska law doesn't define the term,
"interpersonal violence".
REPRESENTATIVE FAIRCLOUGH concurred, but offered that the CDC,
at the federal level, is considering using the term,
"interpersonal violence" as a way of actually preventing
interpersonal violence. Alaska's law in that regard is
antiquated, she remarked, and until that term is defined in
Alaska law, use of it could create problems with regard to
judicial interpretation. In response to a question, she offered
to provide the committee with the CDC's definition of the term,
"interpersonal violence", and indicated a preference for keeping
the term "domestic violence" in the bill since that is the term
currently used in Alaska law.
MR. SVOBODNY mentioned that the bill would apply to all offenses
under AS 11.41 - crimes against a person - including but not
limited to offenses such as stalking, custodial interference,
and reckless endangerment.
REPRESENTATIVE SAMUELS asked whether the DOL supports the
language of HB 307 and the way it is structured.
REPRESENTATIVE LYNN relayed that he supports the bill.
MR. SVOBODNY said that he supports the concept embodied in HB
307, and thinks that those who repeatedly commit misdemeanor
assault offenses should, at some point, be treated as felons.
He pointed out, however, that although Section 1 requires the
court to determine whether an offender who is pleading guilty or
no contest to a DV crime actually committed that crime, such a
requirement is already included in the Alaska Rules of Court in
that a court must make a determination that there was probable
cause that a crime was committed; therefore, from a structural
standpoint, Section 1 is not necessary. He also opined that
there is a big problem with regard to retroactivity, adding that
although he doesn't disagree with Mr. Luckhaupt that technically
the current language of the bill doesn't raise a Blakely issue
merely because it considers prior offenses, it has the exact
same problems that Blakely had.
MR. SVOBODNY observed that currently there is no assault crime
that has as an element of it that [the perpetrator and the
victim] were in a domestic relationship that meets the
[statutory] definition of such, and so the court would be unable
to look back and find those crimes without simply guessing or
relying on the opinion of the current prosecuting attorney or
the opinion of the judges who sentenced the perpetrator for
those prior crimes, and thus surviving a challenge on that issue
could be problematic because the aforementioned element wouldn't
have been proven to a jury. So although one way to deal with
such a situation would be to simply have a new trial and present
evidence that the prior convictions were for DV crimes, there
are both legal and practical problems with doing so. He
indicated that the lack of the aforementioned element in DV
cases raises "a very interesting ex post facto argument," and
opined that the bill is proposing a major change. He surmised
that that is why the drafter chose to create a whole new chapter
in statute - AS 11.21. In conclusion, he said he doesn't like
the structure of HB 307, but thinks the concept of it is great.
REPRESENTATIVE DAHLSTROM offered her belief that not too many of
those committing DV crimes are thinking about the timeframes
during which they commit those crimes - rather, such offenders
aren't thinking to begin with. She said she doesn't want to let
such offenders off the hook, and asked that any proposed
amendment include a "look back" period in Section 3 - perhaps a
period not less than nor greater than 10 years.
2:01:20 PM
REPRESENTATIVE COGHILL relayed that he'd been thinking of
offering an amendment that would result in only those prior
convictions occurring on or after the effective date of the bill
being considered, and indicated that such a change would address
some of the concerns raised.
REPRESENTATIVE COGHILL made a motion to adopt Amendment 1, to
delete from page 2, lines 7-8, the language, "References to
previous convictions include convictions before, on, or after
the effective date of this Act."
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE DOOGAN questioned whether the difficulty is that
there wouldn't be factual proof that a prior conviction included
the element of domestic violence.
MR. SVOBODNY concurred, adding, "We know that it is a domestic
violence case because we ... do keep track and it makes a
difference as to what the sentencing may be in that particular
case, but we didn't prove it to a jury," and that's what results
in a Blakely issue.
REPRESENTATIVE DOOGAN asked whether there might be cases in
which the element of DV has been proven to a jury at least twice
before the effective date of the bill.
MR. SVOBODNY said not in Alaska; "We do not have offenses that
require proof to a jury that ... this was a domestic violence
assault or a domestic violence offense."
REPRESENTATIVE DOOGAN clarified that his question is whether
there might be cases in which it had been proven that it was
domestic violence, regardless of whether such proof was
required.
MR. SVOBODNY indicated that there have been cases in which
factually the issue of [DV] did come up. For example, in a case
in which a husband hits his wife, the state must prove that the
husband knowingly caused physically injury to another person,
and in the course of the trial, it will come out that the person
causing the injury is the victim's husband; so factually the
evidence of that would be there, but there is no requirement
that the domestic relationship itself be proven to a jury.
2:06:12 PM
REPRESENTATIVE SAMUELS asked whether, if Amendment 1 were not
adopted, the DOL would be able to proceed with prosecution. He
expressed a preference for leaving the language of the bill as
is, but not if it would result in further litigation for the
state.
MR. SVOBODNY said that if the legislature says the bill is
retroactive, then that's how [the DOL] will view it, and the
State will simply have to try to prove that the prior
convictions were for DV offenses. He noted that most of the
time, when a new law is enacted, the State pays for any
subsequent appeals.
REPRESENTATIVE DAHLSTROM opined that Alaska should be on the
cutting edge in saying that [domestic violence] is unacceptable.
By deleting the words pertaining to previous convictions, then
in a situation like the one described by Mr. Wheeler, the true
perpetrator of DV won't be held accountable for any of his/her
previous DV crimes. She opined that the legislature ought to
ere on the side of the victim, and suggested that they instead
consider another amendment to page 2, lines 7-8, such that only
those prior convictions occurring within the last 10 years be
considered.
2:09:40 PM
REPRESENTATIVE COGHILL said that the concept of retroactivity is
always troublesome for him. Saying he agrees with the concept
of making a third or subsequent DV offense a felony, he opined
that it is proper for the legislature to make such a policy call
with regard to crimes occurring [on or after] the effective date
of the bill. He then referred to the comments regarding how the
bill, in its existing form, might affect those, [particularly
in] rural areas, who've inaccurately plead [guilty to DV crimes]
in the past.
REPRESENTATIVE HOLMES asked whether the existing aggravating
factor for DV assaults [AS 12.55.155(c)(18)] has to be proven to
a jury.
MR. SVOBODNY said that that aggravating factor does need to be
proven to the jury, but that would be in a present case and
wouldn't address prior convictions. Furthermore, aggravating
factors apply to felony cases. He suggested that perhaps an
easy way to address this issue would be to have the predicate
crimes be any kind of assault - not just DV assaults. In this
way, the DOL would not be faced with having to change history
after the fact by specifying that the prior convictions were for
DV offenses.
REPRESENTATIVE SAMUELS asked whether the DOL would have the
discretion to not apply the proposed enhanced penalty in a
current DV case.
MR. SVOBODNY said the DOL does have that discretion, but noted
that in instances of a third DUI offense and its accompanying
enhanced penalties, although the DOL doesn't have to, it does
try to prove the prior DUI convictions.
REPRESENTATIVE SAMUELS said he doesn't consider the language
that Amendment 1 is proposing to delete to be a retroactive
provision because the bill is addressing a current third or
subsequent DV crime.
REPRESENTATIVE FAIRCLOUGH surmised that adoption of Amendment 1
would provide for an opportunity to train law enforcement
officers regarding the new law and the importance of documenting
DV crimes correctly, and could perhaps minimize appeals. She
too opined that Alaska should be on the cutting edge of holding
perpetrators of domestic violence accountable.
REPRESENTATIVE DOOGAN referred to Amendment 1, and asked what's
the worst that could happen.
MR. SVOBODNY said that the DOL could go through with a criminal
prosecution and obtain a conviction and a sentence that might
then be overturned by the Alaska Court of Appeals.
2:17:14 PM
REPRESENTATIVE COGHILL withdrew Amendment 1. He said, however,
that he doesn't want to institute a limitation on the look back
period as suggested by Representative Dahlstrom.
REPRESENTATIVE DAHLSTROM, in response to a question, expressed a
preference for keeping the HB 307 as it's currently written.
REPRESENTATIVE HOLMES referred to Section 1, and asked whether
it could be improved so as to further ensure that the proposed
enhanced penalty isn't applied to victims of DV.
MR. SVOBODNY indicated that he doesn't have any specific
language to suggest, and reiterated that before accepting a
plea, the courts already have to find probable cause that the
crime was committed and that it was committed by the person who
has been accused of committing it. He acknowledged, though,
that there will be those who, for any number of reasons, will
inaccurately plead guilty to a DV crime; this does happen, but
not with much regularity. Furthermore, it is the district
attorney's duty to correct instances of incorrect guilty
findings.
2:21:17 PM
REPRESENTATIVE DAHLSTROM moved to report HB 307 out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE SAMUELS commented that as HB 307 continues
through the process, as long as the concepts of the bill remain
intact - providing an enhanced penalty for a third or subsequent
DV offense and allowing the courts to look back at prior DV
offenses - he would be amenable to language that would improve
the bill.
CHAIR RAMRAS, noting that there were no objections to the
motion, announced that HB 307 was reported from the House
Judiciary Standing Committee.
HB 281 - CAMPAIGN FINANCE COMPLAINTS
2:22:29 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 281, "An Act extending the statute of limitations
for the filing of complaints with the Alaska Public Offices
Commission involving state election campaigns." [Before the
committee was CSHB 281(STA).]
REPRESENTATIVE LYNN, speaking as one of the bill's joint prime
sponsors, said that HB 281 adds another brick to the foundation
of [public] trust, and that he would like to see it reported
from committee. He mentioned that he does have a conflict of
interest in that as a legislator he could at some point end up
violating the bill's provisions, but he is willing to take that
chance because he feels building up the foundation of trust
between the people of Alaska and the state's elected officials
is more important than any individual legislator. He remarked
that recent history clearly indicates the need for an increase
in the period of time [during which a complaint may be filed]
from one [and two years] to five years, and for requiring that
certain records be kept for six years. He acknowledged,
however, that the bill shouldn't cast too large a net regarding
who must retain records, and so he would be willing to have
Section 1 deleted via an amendment. He relayed that he would
also be amenable to an amendment that would change who may file
a complaint, from a "registered voter", to a "person". He
concluded by saying that HB 281 is a proactive bill that will
give the Alaska Public Offices Commission (APOC) the essential
tools needed to protect the public trust.
CHAIR RAMRAS noted that members' packets contain a proposed
amendment [labeled 25-LS1115\K.3, Finley/Bullard, 2/8/08] that
would change "registered voter" to "person".
CHAIR RAMRAS, in response to a question, explained that he was
considering offering a conceptual amendment that would delete
Section 1 of the bill so that businesses wouldn't have the
burden of retaining records for political candidates. He
mentioned that he is also interested in deleting the language on
page 2, lines 12-13, because he feels that when he has completed
his public service as an elected official, he does not want to
find himself in violation of the law simply because he didn't
keep certain records for six years [after his last election].
2:29:41 PM
BROOKE MILES, Director, Alaska Public Offices Commission (APOC),
Department of Administration (DOA), offered that HB 281 provides
the APOC some important tools. At the top of the APOC's wish
list regarding legislation, she relayed, was to have the statute
of limitations pertaining to campaign disclosure [complaints]
expanded from one year. She also indicated that the three other
provisions of law that fall under the purview of the APOC either
have no specific statute of limitations or differing ones.
Although the APOC had originally requested an expansion of the
statute of limitations to four years, it is amenable to the five
years proposed by the bill, since some terms for statewide
office are four years and there is an 18-month campaigning
period. She offered her understanding that lobbyists, who also
fall under the purview of the APOC, currently have a four-year
statute of limitations. The bill also includes a provision
regarding the retention of records, because it is difficult to
conduct an investigation without access to those records. She
explained that the APOC is in favor of having Section 1 of the
bill removed, thereby allowing the existing AS 1513.040(f) to
remain as is because it has proven to be a useful tool.
MS. MILES relayed that the APOC is concerned about the bill's
current proposal to change who can file a complaint, from a
"person", to a "registered voter". Alaska's existing lobbying
laws limit who may file a complaint to a "qualified voter", but
the other laws regarding filing complaints specify that
complaints must be filed by "a person", thus allowing anyone,
including groups or parties, to file a complaint. If "person"
is changed to "registered voter" as the bill is currently
proposing, it would preclude political parties and certain
groups that consider themselves watchdogs over Alaska's
political process from filing complaints. And although some
legislators have expressed fear that someone can currently file
a complaint while hiding his/her identity behind a group or
party, the APOC has never had a "secret" or "sneaky" person file
a complaint because complaints are required to be sworn
statements and thus anonymous complaints aren't allowed. The
APOC, therefore, requests that the statutes regarding who may
file a complaint be allowed to remain as is, using the broader
term "person" as opposed to the proposed term "registered
voter".
REPRESENTATIVE SAMUELS opined that a party or "so-called
watchdog group" shouldn't be allowed to file a complaint because
that enables an individual to hide behind the party or group;
only individuals should be allowed to file complaints.
MS. MILES pointed out that although under current law a group or
party may file a complaint, it is still an individual within
that organization who signs the sworn statement.
REPRESENTATIVE SAMUELS remarked that if that's the case, then he
doesn't see the advantage of allowing groups or parties to file
a complaint. Furthermore, he opined, if a person thinks that
wrongdoing has occurred, he/she should be willing to file a
complaint as an individual.
2:39:43 PM
MS. MILES said that from the APOC's point of view, allowing
groups or parties to file complaints depoliticizes the complaint
process. She then relayed that the APOC is also concerned about
the proposed new language to AS 15.13.380(b) on page 2, lines
24-26 - "The time limitations of this subsection do not bar
proceedings against a person who intentionally prevents
discovery of a violation of this chapter."; although the APOC
knows that this language is meant to say that the statute of
limitations doesn't apply to those who knowingly impede
discovery, the inclusion of this language could raise legal
issues. Another of the APOC's concerns pertains to Section 6,
which proposes a new subsection to AS 24.45.131 and says in
part, "(d) If a member of the commission or a member of its
staff files a complaint, that member of the commission or member
of its staff may not participate in any proceeding of the
commission relating to the complaint." She offered that the
APOC has found this provision to be unworkable. First of all, a
commission member would never file a complaint, though he/she
may ask staff to review facts to determine whether staff should
initiate a complaint. The language in Section 6 would preclude
staff from filing complaints.
MS. MILES, in response to a question, indicated that different
commission members have in the past recused themselves from
participating in a particular complaint [because of a conflict
of interest].
REPRESENTATIVE COGHILL noted that Section 9 contains similar
language, and asked whether it would be better to remove
Sections 6 and 9 and thereby stay with the existing procedure.
MS. MILES clarified that the APOC would prefer that Sections 6,
9, and 10 be deleted [because of that language].
REPRESENTATIVE COGHILL, noting that commission members currently
have authority to levy fines, said he doesn't want commission
members to be the drivers of the complaints, the discoverers of
all pertinent information, and the leviers of the fines. He
therefore expressed favor with the concept of deleting those
sections. He surmised that the aforementioned language wound up
being added simply because it exists in the statutes pertaining
to the Select Committee on Legislative Ethics. He expressed a
preference for having a committee substitute (CS) brought before
the committee that would address the concerns regarding Sections
6, 9, and 10.
CHAIR RAMRAS indicated that he doesn't want to make changes to
statute just for appearances sake, and that he would prefer to
have a CS that only addresses specific problems with current
statute.
2:47:47 PM
REPRESENTATIVE LYNN pointed out the intent of HB 281 is to give
the APOC and the Select Committee on Legislative Ethics the
tools they need to do the job they've been created to do.
MS. MILES posited that the language on page 2, lines [21-23],
[which is part of existing AS 15.13.380(b),] addresses
[Representative Coghill's] concern regarding commission members'
activities during the complaint process, and relayed that the
APOC is comfortable with that language, which reads, "If a
member of the commission has filed the complaint, that member
may not participate as a commissioner in any proceeding of the
commission with respect to the complaint". She indicated a
preference for not having a similar restriction placed on APOC
staff.
2:49:28 PM
SHIRLEY R. DEAN, Commissioner, Alaska Public Offices Commission
(APOC), Department of Administration (DOA), concurred, and
relayed that as far as she is aware, no commissioner of the APOC
has ever filed a complaint. She characterized the proposed
expansions of the period of time during which a complaint may be
filed and the period of time that records must be kept as
benefiting the people of Alaska and [APOC commissioners].
REPRESENTATIVE DOOGAN asked whether APOC staff, if made aware of
a possible violation, can both file a complaint and then
investigate it.
MS. MILES said that under current law staff can do so as long as
the [complaint] is filed within one year.
MS. DEAN added that if a possible violation doesn't fall under
the purview of the APOC, the APOC would refer it on to the
appropriate entity.
REPRESENTATIVE DOOGAN surmised that at issue is the length of
the statute of limitations regarding when complaints can be
filed.
MS. MILES concurred.
2:52:51 PM
JANET DeYOUNG, Chief Assistant Attorney General - Statewide
Section Supervisor, Labor and State Affairs Section, Civil
Division (Anchorage), Department of Law (DOL), in response to a
question, said that the current penalties for a violation of the
programs administered by the APOC range from $10 per day to $50
per day depending on the specific program. Although the APOC
has discretion to take various factors into account when
assessing a penalty, the penalty structure is pretty much the
same for each program regardless of the violation.
REPRESENTATIVE COGHILL asked what would be a reason for filing a
civil action under [the laws being addressed by the bill].
MS. DeYOUNG, to illustrate an example, relayed that she'd
participated in an action that was brought by a citizen under
the legislative financial disclosure law, and that particular
case was a challenge to an election on the basis that the
conflict of interest statement was inaccurate.
REPRESENTATIVE COGHILL surmised, then, that there are two
courses of action available: one pertains to the ability of the
APOC to levy a penalty, and the other pertains to the ability of
a person to bring a civil suit. Extending the time period that
records should be kept speaks to both types of action.
REPRESENTATIVE SAMUELS asked how soon the APOC must act after a
complaint is filed.
MS. DeYOUNG said that under current law - a combination of
regulation and statute - there is a specific time period during
which the matter must come before the APOC. Also, either the
complaint filer or the respondent can request expedited
attention, which [if granted] requires that action occur within
60 days.
REPRESENTATIVE SAMUELS surmised, then, that if the APOC doesn't
act on a complaint within 60 days, it can't then go forward with
the complaint.
MS. DeYOUNG clarified that the 60-day deadline only pertains to
the expedited process. Furthermore, extensions can be granted
for those complaints that are not going through an expedited
process. She offered as example situations involving special
sessions and legislative immunity from compulsory process. That
legislative immunity always goes into effect any time the
legislature is in session, and, to some extent, limits the
APOC's ability to conduct investigations and hold hearings. In
response to a question, she concurred that in such instances,
once the special session is over, the APOC can continue with the
complaint process.
2:59:12 PM
JOYCE ANDERSON, Ethics Committee Administrator, Select Committee
on Legislative Ethics, Alaska State Legislature, offered that
the complaint process of the Select Committee on Legislative
Ethics is a little bit different than that of the APOC. She
noted that HB 281 is proposing to change the statute of
limitations regarding when a complaint may be filed with the
Select Committee on Legislative Ethics to five years. Ms.
Anderson said she would echo Ms. Miles's comments regarding any
"person" filing a complaint versus only a "registered voter".
Furthermore, although the Legislative Ethics Act has always
stipulated that any "person" can file a complaint, with the term
"person" including individuals and organizations, Ms. Anderson
said that she isn't aware of any complaint ever having been
filed with the Select Committee on Legislative Ethics that was
filed by anyone other than an individual person.
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 281.
3:02:12 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 1,
labeled 25-LS1115\K.3, Finley/Bullard, 2/8/08, which read:
Page 2, line 18:
Delete "registered voter [PERSON]"
Insert "person"
Page 3, lines 14 - 15:
Delete "registered [QUALIFIED] voter"
Insert "person [QUALIFIED VOTER]"
Page 3, line 24:
Delete "registered voter"
Insert "person"
Page 4, line 17:
Delete "registered voter"
Insert "person"
Page 4, line 27:
Delete "registered voter"
Insert "person"
Page 5, lines 6 - 7:
Delete "registered [QUALIFIED] Alaska voter"
Insert "person [QUALIFIED ALASKA VOTER]"
REPRESENTATIVE SAMUELS objected, and said he agrees with the
goal of depoliticizing the complaint process, but disagrees that
[allowing organizations and parties to file complaints] will
accomplish that goal.
MS. MILES said that the APOC feels that allowing organizations
and political parties to file complaints would make the
complaint process less "Jane versus Joe." She suggested that
perhaps using the term "individual" would alleviate members'
concerns with the terms "person" and "registered voter", but
mentioned that she's not yet had a chance to discuss this
suggestion with APOC commissioners.
REPRESENTATIVE SAMUELS said he doesn't have a problem with
allowing someone who is not a registered voter to file a
complaint. However, he remarked, it seems that replacing
"person" with "individual" would have the same effect as
replacing "person" with "registered voter" with regard to the
APOC's view that using the term "person" depoliticizes the
complaint process.
MS. MILES, on the issue of who has filed complaints with the
APOC, offered her understanding that Representative Lynn's staff
has prepared some statistics which might prove helpful to the
committee.
3:05:44 PM
MIKE SICA, Staff to Representative Bob Lynn, Alaska State
Legislature, on behalf of Representative Lynn, one of the joint
prime sponsors of HB 281, relayed that research of the APOC's
files indicates that complaints have been filed by the
Democratic Party, the Republican Party, the Republican Moderate
Party, the Alaska Independent Party, various districts'
political organizations, the Alaska Public Interest Research
Group (AkPIRG), the Anchorage Education Association, the "Cook
Inlet Driftnet Association," the Alaska Support Industry
Alliance, and the "Denali Citizens Against Taxes." He also
noted that in researching other states' statutes regarding who
can file a similar complaint, he couldn't find even one state
that restricted filing to a "registered voter" or a "qualified
voter".
REPRESENTATIVE SAMUELS questioned whether other states define
"person" to include a corporate entity.
MR. SICA indicated that he'd not researched that point.
REPRESENTATIVE HOLMES offered her understanding that in legal
usage, the word "person" generally includes groups and
corporations.
CHAIR RAMRAS, in response to a comment, surmised that the
question seems to be whether using "person" in Alaska law
provides an individual trying to manipulate the complaint
process too much anonymity.
REPRESENTATIVE LYNN pointed out that even in instances where a
complaint is filed by an organization, it is still an individual
that signs the complaint. He said he assumes that before a
group files a complaint, it has met and agreed to file the
complaint.
CHAIR RAMRAS argued that that might not be true in all cases,
particularly given the structure of some groups.
REPRESENTATIVE DOOGAN said he finds it difficult to conceive of
a situation in which an accusation against someone engaged in
political activity can be depoliticized. He opined, therefore,
that the legislature shouldn't be doing anything to limit the
class of people who can file a complaint, particularly since
there has not been any compelling reason offered for doing so.
3:09:55 PM
REPRESENTATIVE HOLMES said that given that even if it's a group
that's filing a complaint, it's an individual who has to sign
the complaint form, and so the respondent would have the name of
that person. She surmised that it would be helpful for the
respondent to know that a complaint is coming from a group as
opposed to just a single person.
REPRESENTATIVE SAMUELS expressed concern that an individual
wanting to file a complaint could simply create an organization
and then use the name of that organization to label the
respondent of the complaint and make him/her look bad in the
media.
REPRESENTATIVE DOOGAN said that one reason a group might decide
to file a complaint is so that the cost of proceeding with the
compliant will be borne by the group rather than just an
individual.
CHAIR RAMRAS asked how much time and expense is involved in
filing a compliant.
MS. MILES said it depends on the complexity of the complaint.
For example, some complainants have come forth with significant
documentation, which takes time and money to compile, and some
complainants come forth after obtaining legal advice, which
usually comes at some cost.
REPRESENTATIVE COGHILL, referring to Amendment 1, noted that the
change proposed to page 5, lines 6-7, of the bill pertains to
proposed AS 39.50.100 - Enforcement by private citizens - and to
bringing a civil action. He indicated that he would prefer,
therefore, that that provision remain as is in the bill and not
be expanded to include groups or parties.
3:15:52 PM
REPRESENTATIVE COGHILL made a motion to amend Amendment 1 to
remove the change proposed to page 5, lines 6-7, of the bill.
REPRESENTATIVE HOLMES objected.
MS. MILES explained that the civil actions referenced in
proposed AS 39.50.100 would be addressed by the courts, not the
APOC.
MS. DeYOUNG added that typically the Alaska Court System (ACS)
does not restrict plaintiffs in a civil action, and that there
might be constitutional issues raised by providing limitations
on access to the courts.
REPRESENTATIVE COGHILL asked whether the existing language of AS
39.50.100 has been problematic.
MS. DeYOUNG said that the one civil action she is aware of was
brought by two individuals and presumably they were qualified
Alaska voters, and so she has not seen the existing language
challenged.
REPRESENTATIVE DOOGAN asked whether, if he were to file a
complaint and the APOC chose not to act on it, he could then
bring a civil action in order to force the APOC to act.
MS. DeYOUNG said the action referenced in AS 39.50.100 is a
direct action brought by a citizen, and would result in a
proceeding in superior court. However, if a complaint is filed
with the APOC but the complainant is not satisfied with the
APOC's action, there is an appeal process available - that would
be an appeal into court.
REPRESENTATIVE HOLMES noted that lawsuits are often brought by
companies and groups, and thus she would prefer to leave the
language of Amendment 1 as is.
3:19:11 PM
A roll call vote was taken. Representatives Samuels, Dahlstrom,
Coghill, and Ramras voted in favor of the amendment to
Amendment 1. Representatives Lynn, Holmes, and Doogan voted
against it. Therefore, the amendment to Amendment 1 was adopted
by a vote of 4-3.
REPRESENTATIVE SAMUELS maintained his objection to Amendment 1,
as amended.
3:20:06 PM
A roll call vote was taken. Representatives Lynn, Holmes,
Doogan, Coghill, and Ramras voted in favor of Amendment 1, as
amended. Representatives Dahlstrom and Samuels voted against
it. Therefore, Amendment 1, as amended, was adopted by a vote
of 5-2.
CHAIR RAMRAS asked the committee to next consider the APOC's
recommendation regarding the deletion of [certain sections].
REPRESENTATIVE COGHILL surmised that the issue is whether a
staff member could file a complaint and then continue to
participate in that complaint process, whereas if a commissioner
files a complaint, he/she must then recuse himself/herself from
the proceeding.
MS. MILES concurred. She indicated that the problematic
language is, "or a member of its staff" in Section 6 of the
bill.
REPRESENTATIVE COGHILL surmised that a conceptual amendment
could address that point, noting that some of the sections
containing that problematic language also contain the proposed
increase to the period of time in which complaints may be filed.
REPRESENTATIVE COGHILL made a motion to adopt Conceptual
Amendment 2, to remove from Sections 6, 7, 9, and 10 references
to the APOC's staff members.
REPRESENTATIVE DOOGAN objected. He said he is not certain that
Conceptual Amendment 2 would alleviate the APOC's concerns.
MS. MILES, in response to comments, clarified that the
commissioners act as adjudicators and therefore should not be
filing a complaint and then continuing to be involved with the
proceeding pertaining to that complaint.
3:24:11 PM
REPRESENTATIVE DOOGAN offered his belief that Conceptual
Amendment 2 as previously stated wouldn't allow for that, and
suggested a revision.
REPRESENTATIVE COGHILL offered his understanding that staff
members should be able to file a complaint and then participate
in any forthcoming proceeding.
REPRESENTATIVE COGHILL then withdrew Conceptual Amendment 2.
MS. MILES said that the APOC is amenable to restricting a
commissioner from filing a complaint and then participating in
the complaint process, but doesn't wish to similarly limit staff
members, because there have been times, during the normal course
of business, when staff have been responsible for filing a
complaint if no other person has done so, and staff should be
allowed to then participate in the complaint process.
CHAIR RAMRAS said he is not sure he supports the changes
proposed to HB 281, and cautioned against being too reactive to
current events.
3:29:26 PM
REPRESENTATIVE LYNN opined that it bodes well for the
legislature to be reactive to recent circumstances.
REPRESENTATIVE COGHILL expressed favor with expanding the time
period during which complaints may be filed. He also relayed
that it was a staff member that discovered his violation of [a
filing deadline].
REPRESENTATIVE SAMUELS observed that he should have objected to
the withdrawal of Conceptual Amendment 2, because it appeared to
address the APOC's point that staff should be able to file a
complaint [and participate in the complaint process] because
that's their job. He said he is thinking that the elimination
of Sections 6, 9, and 10 would make the bill better.
REPRESENTATIVE COGHILL pointed out, though, that simply deleting
the aforementioned sections would also effect changes to the
proposed longer time period for filing a complaint.
REPRESENTATIVE DOOGAN said he supports extending that time
period. In response to a comment, he said he would like to have
more time to consider the bill.
REPRESENTATIVE COGHILL indicated that he would be willing to
work with the sponsor to address the APOC's concerns.
3:34:06 PM
REPRESENTATIVE LYNN made a motion to adopt Conceptual Amendment
3, to delete Section 1 from HB 281 and renumber the remaining
sections accordingly. There being no objection, Conceptual
Amendment 3 was adopted.
CHAIR RAMRAS mentioned that he still has a concern regarding
Section 2 - the section addressing the preservation of records.
MS. MILES said that the APOC supports the preservation of
records for a period of six years under the campaign disclosure
statute because it will assist the APOC in conducting
investigations; six years will cover the proposed five-year
period during which a complaint may be filed plus one year.
[CSHB 281(STA), as amended, was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:37 p.m.
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