03/28/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB164 | |
| HB323 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 323 | TELECONFERENCED | |
| + | HB 327 | TELECONFERENCED | |
| + | HB 415 | TELECONFERENCED | |
| + | SB 164 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 28, 2008
1:10 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 164(JUD)
"An Act relating to disclosures required for the sale of a used
motor vehicle, including a trailer, by a motor vehicle dealer."
- MOVED CSSB 164(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 323
"An Act relating to the crimes of assault in the fourth degree
and of resisting or interfering with arrest; relating to the
determination of time of a conviction; relating to offenses
concerning controlled substances; relating to issuance of search
warrants; relating to persons found incompetent to stand trial
concerning criminal conduct; relating to probation and to
restitution for fish and game violations; relating to
aggravating factors at sentencing; relating to criminal
extradition authority of the governor; removing the statutory
bar to prosecution of certain crimes; amending Rule 37(b),
Alaska Rules of Criminal Procedure, relating to execution of
warrants; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 327
"An Act relating to shipping, sending, transporting, or bringing
alcohol to a local option area and providing alcohol to others
in the local option area, including penalties for violations;
relating to furnishing alcohol to a minor and to civil penalties
for licensees whose agents or employees furnish alcohol to a
minor; relating to manslaughter as a direct result of ingestion
of alcoholic beverages brought in violation of a local option
prohibition; relating to reports of the court concerning certain
alcohol violations by minors; making conforming amendments; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 415
"An Act relating to disclosures required for the sale of a used
motor vehicle, including a trailer, by a motor vehicle dealer."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 164
SHORT TITLE: USED MOTOR VEHICLE SALES
SPONSOR(S): SENATOR(S) MCGUIRE
04/27/07 (S) READ THE FIRST TIME - REFERRALS
04/27/07 (S) TRA, JUD
02/12/08 (H) TRA AT 1:00 PM CAPITOL 17
02/12/08 (S) Moved SB 164 Out of Committee
02/12/08 (S) MINUTE(TRA)
02/15/08 (S) TRA RPT 3DP 1NR
02/15/08 (S) DP: KOOKESH, WILKEN, OLSON
02/15/08 (S) NR: WIELECHOWSKI
02/29/08 (S) JUD AT 1:30 PM BELTZ 211
02/29/08 (S) Heard & Held
02/29/08 (S) MINUTE(JUD)
03/12/08 (S) JUD AT 1:30 PM BELTZ 211
03/12/08 (S) Moved CSSB 164(JUD) Out of Committee
03/12/08 (S) MINUTE(JUD)
03/14/08 (S) JUD RPT CS 2DP 2NR SAME TITLE
03/14/08 (S) DP: THERRIAULT, MCGUIRE
03/14/08 (S) NR: FRENCH, WIELECHOWSKI
03/19/08 (S) TRANSMITTED TO (H)
03/19/08 (S) VERSION: CSSB 164(JUD)
03/20/08 (H) READ THE FIRST TIME - REFERRALS
03/20/08 (H) JUD
03/28/08 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 323
SHORT TITLE: CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/17/08 (H) READ THE FIRST TIME - REFERRALS
01/17/08 (H) JUD, FIN
01/30/08 (H) JUD AT 1:00 PM CAPITOL 120
01/30/08 (H) Heard & Held
01/30/08 (H) MINUTE(JUD)
03/28/08 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
TREVOR FULTON, Staff
to Senator Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 164 on behalf of the sponsor,
Senator McGuire.
JON COOK, Legislative Director
Alaska Auto Dealers Association (AADA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 164 and
responded to questions.
CLYDE (ED) SNIFFEN, JR., Senior Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of SB 164.
REPRESENTATIVE LES GARA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 164, testified in
favor of Amendment 1.
REPRESENTATIVE CARL GATTO
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
SB 164.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 323, presented the
proposed CS, Version E, on behalf of the administration, and
addressed suggested amendments.
CRAIG GOODRICH, Fire Chief
Anchorage Fire Department (AFD)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 323, spoke in
support of Amendment 1 to Version E.
RODNEY DIAL, Lieutenant, Deputy Commander
A Detachment
Division of Alaska State Troopers
Department of Public Safety (DPS)
Ketchikan, Alaska
POSITION STATEMENT: Testified in support of HB 323.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:10:07 PM. Representatives Coghill,
Samuels, Holmes, Gruenberg, Dahlstrom, and Ramras were present
at the call to order. Representative Lynn arrived as the
meeting was in progress.
SB 164 - USED MOTOR VEHICLE SALES
1:10:53 PM
CHAIR RAMRAS announced that the first order of business would be
CS FOR SENATE BILL NO. 164(JUD), "An Act relating to disclosures
required for the sale of a used motor vehicle, including a
trailer, by a motor vehicle dealer."
1:11:33 PM
TREVOR FULTON, Staff to Senator Lesil McGuire, Alaska State
Legislature, relayed on behalf of Senator McGuire, sponsor, that
SB 164 deletes obsolete language from statute and addresses some
unintended consequences of what he termed the "auto dealers
Act," and that the sponsor's intent is to do the aforementioned
without, in any way, reducing consumer protections. He offered
his understanding that the provision of statute SB 164 is
proposing to repeal - AS 45.25.465(c) - is now no longer of any
benefit to dealers, consumers, or the state. Currently, AS
45.25.465(c) requires that a dealer post, on the window of all
his/her used vehicles for sale, three disclosures: one, that
the vehicle is not subject to [the warranty provisions of AS
45.45.300 - 45.45.360, which he termed] "Alaska's lemon law";
two, that the vehicle is not covered under a manufacturer's
warranty; and three, if applicable, that the vehicle was
originally manufactured for sale in a foreign country.
MR. FULTON offered his understanding that these disclosures were
originally mandated in response to an influx in Alaska's market
of used Canadian vehicles that were being sold as new. The
market has since corrected itself, and the practice that AS
45.25.465(c) was intended to address is no longer an issue.
Furthermore, much of the information that this subsection (c)
mandates be posted is already made available to consumers as
they go through the process of purchasing a used vehicle. This
mandatory posting, he opined, is not only an inconvenience to
those in the business of selling used vehicles, but it may also
be leaving such dealers exposed to what he termed "dubious
lawsuits." Not posting the information outlined in subsection
(c) would currently result in the commission of an unfair trade
practice which could in turn allow for lawsuits that demand
treble damages and reimbursement of full legal costs regardless
that consumers haven't suffered any actual harm or damages.
MR. FULTON relayed that the sponsor feels that this issue should
be revisited because the aforementioned provision is
unnecessarily burdening Alaska businesses. Subsection (c) no
longer provides the consumer protections it once did, and now
merely places unnecessary requirements on auto dealers. In
conclusion, he urged the committee to support SB 164.
REPRESENTATIVE GRUENBERG relayed that he was the author of AS
45.25.465(c), and that it was not meant to address only the used
Canadian car issue; instead, it's purpose was to provide
consumer protection via full disclosure of information on the
windows of the used cars being sold. At the time that this
provision was adopted, members were aware that another
provision, AS 45.25.470, already required motor vehicle dealers
to disclose in writing, at the time of purchase, whether a motor
vehicle was originally manufactured for sale in a foreign
country. The three disclosures required by AS 45.25.465 were
meant to be displayed - via a small form, a sample of which is
included in members' packets - on the windows of all used cars
being sold, as opposed to being provided to prospective buyers
only at the time of actual purchase. He acknowledged that the
aforementioned "lemon law" only applies to new vehicles.
1:18:39 PM
JON COOK, Legislative Director, Alaska Auto Dealers Association
(AADA), after relaying that he supports SB 164, said he's
experienced the repercussions of having to post the disclosures
required by AS 45.25.465(c), and characterized them as confusing
to both dealers and customers and as redundant. He too noted
that the warranty provisions of the "lemon law" only apply to
new vehicles and not used vehicles, and that motor vehicle
dealers must already disclose to the customer in writing if a
motor vehicle was originally manufactured for sale in a foreign
country. With regard to the latter disclosure, he opined that
it doesn't matter that such disclosure is made only at the time
of purchase, as opposed to having it posted on the window of the
vehicle, because the disclosure is still present. He pointed
out that dealers are required by the Federal Trade Commission
(FTC) to post a large, what he called an "As Is" sticker [titled
"BUYERS GUIDE"] on a used car which discloses that the car
either does have a warranty or doesn't have a warranty, and that
this sticker must be signed and retained by the customer at the
time of purchase.
MR. COOK again characterized the disclosures required by
subsection (c) as redundant, and said he is not sure why dealers
should be required to post a disclosure on a used car that it
isn't covered under the "lemon law" when that law doesn't apply
to any used cars and never did. He offered his belief that
litigation won't be barred just because the customer hasn't
suffered any actual harm. He relayed that currently there is
ongoing litigation over not displaying the aforementioned
disclosures, and offered his understanding that this litigation
won't be affected by the bill. The fact that a business can be
sued for not displaying such disclosures is of no benefit to
anybody, though it does put businesses at risk of going out of
business. Referring to the aforementioned litigation, he
offered his belief that because the entity that's being sued is
a publicly traded company, it can afford to go through the
litigation process and remain solvent. However, most members of
the AADA are small, locally-owned, family businesses, and if any
of them were to be similarly sued, he remarked, they would
either be put out of business or would never be able to get
insured again.
MR. COOK, in conclusion, said "This sticker ... puts Alaska
businesses at risk ... for something that provides no benefits
to dealers, the consumers, or the state of Alaska."
1:23:26 PM
REPRESENTATIVE GRUENBERG pointed out that the purpose of
subsection (c) was not to provide a vehicle for suing dealers -
the aforementioned litigation was simply a result of "making it
an unfair trade practice"; again, the purpose in offering that
provision of law was to provide notice to consumers. He
surmised that Mr. Cook doesn't object to providing such notice.
MR. COOK concurred, adding that he believes that dealers do
provide sufficient disclosures, though such disclosures may not
be posted on the vehicle. At issue, he surmised, is how often
the same thing should be disclosed. "I am for, and our
association is for, full disclosure," he said, adding that he
knows that it was not the intent of subsection (c) to engender
litigation, but that is what has occurred.
REPRESENTATIVE GRUENBERG observed that the "lemon law" provides
very important protections for consumers, and so the fact that
it doesn't apply to a used vehicle might be extremely important
to a particular consumer. If SB 164 becomes law, then consumers
will no longer be informed that the "lemon law" doesn't apply.
Why, he asked, would [dealers] not want people to know that
fact.
MR. COOK opined that since the "lemon law" only applies to new
vehicles and only addresses the relationship between the
consumer and the manufacturer, there is no reason to disclose
that fact on a used vehicle. To him, he added, the most
important thing to disclose is whether the car comes with a
warranty, and that is disclosed via the aforementioned sticker.
REPRESENTATIVE GRUENBERG questioned how many customers actually
know that the "lemon law" only applies to new vehicles.
1:28:16 PM
MR. COOK said he's never had a customer attempt to make the
"lemon law" apply to a used vehicle.
REPRESENTATIVE GRUENBERG pointed out that that doesn't mean it
hasn't been brought up by someone at some point. On the issue
of whether a car is manufactured for sale in Canada, he said
that the purpose of having disclosure of such a fact in the
window of the car is so that the customer could have that
information before he/she chooses a car. Why should a customer
be denied that disclosure until he/she is in the middle of
purchasing a particular vehicle?
MR. COOK said that there are a variety of required disclosures
that aren't provided until the time of purchase, and that he is
not sure that having information, before the actual purchase,
that a car was manufactured for sale in another country will
impact the customer's decision when choosing a car.
Furthermore, there is nothing stopping dealers from making that
same disclosure as required by AS 45.25.470 via posting
something on the window of the car as opposed to making it in
writing at the time of purchase.
REPRESENTATIVE GRUENBERG, on the issue of disclosing whether a
vehicle has a warranty, said that obviously Congress felt that
such disclosure - on every vehicle and in big letters - was
important, because it enacted federal law to that effect. He
added:
I know you want to deny any additional [disclosure]
... on that under state law. I am ... very surprised
to hear you take the position you have knowing that
[the] public now wants to be fully informed when they
buy major purchases, wants full disclosure, and is
always vary wary when they buy used [cars]. And I
would think that having this sticker on the car would
be to the dealers' protection because then the
customer could not say later, if they ever sued the
dealer, that they weren't informed. The dealer would
say, "Sure you were informed - this sticker was on the
car." That would provide you with a great legal
defense, possibly summary judgment in your favor, and
now you want to take the sticker off and you're going
to potentially get the dealer into lawsuits, and they
won't have the printed proof that would give you a
really good defense. Have you fully considered that
this is really as much for the dealer's protection, if
they're sued, as it is for the customer?
MR. COOK said he has considered that point, but feels that the
litigation risk is increased "by having this second sticker,"
and he again noted that there is class action litigation
occurring now as a result of the current disclosure law.
REPRESENTATIVE SAMUELS asked what percentage of used cars are
sold through dealerships as opposed to being sold directly by
the current owner, and whether there are any consumer
protections in place for someone who buys a used car directly
from the current owner.
MR. COOK declined to answer.
REPRESENTATIVE SAMUELS noted that the aforementioned "As Is"
sticker specifically states whether there is a warranty.
MR. FULTON concurred, and reiterated that that sticker is
required to be posted on all used vehicles being sold at a
dealership.
MR. COOK said dealers post that sticker on one of the car's
windows. In response to a question, he acknowledged that
occasionally that particular window can get rolled down and the
sticker peeled off.
CHAIR RAMRAS recapped Mr. Cook's concerns/comments.
1:38:43 PM
CLYDE (ED) SNIFFEN, JR., Senior Assistant Attorney General,
Commercial/Fair Business Section, Civil Division (Anchorage),
Department of Law (DOL), relayed that when AS 45.25.465(c) was
enacted, the DOL had had the understanding that it was aimed at
the current-model used-vehicle market because those used
vehicles look remarkably like new vehicles and - under Title 8
at that time - could only be sold by a dealer that also sold new
vehicles, so there was a potential for deception regarding that
specific type of used vehicle. He acknowledged Representative
Gruenberg's point that instead that provision was actually
intended to apply to all used vehicles, and apologized for the
DOL's misunderstanding as expressed in his letter to the sponsor
dated 2/19/08. He said he does not disagree with Representative
Gruenberg's comments in that regard.
MR. SNIFFEN explained that in 2006, Title 8 was amended to
remove all reference to current model [used] vehicles, and so
now a used car at a dealership is considered to be a used car
regardless of whether it is a current model and only has a very
few miles on it. One option that the DOL considered was to
develop a definition of "current model vehicle," but doing so
proved complicated and cumbersome. In looking at the statutes
more closely, it seemed that all the protections provided by
posting the aforementioned information as required by AS
45.25.465(c) were already being provided under other statutes.
He said he agrees that without having information posted that
the "lemon law" didn't apply to used vehicles, consumers
wouldn't know that, but added that that is not generally a
source of consumer complaints for his office. He said that no
other state, that he is aware of, requires dealers to inform
customers of the application of the "lemon law," which is tied
to the manufacture's warranty. The box in the buyers guide
which states that the consumer is buying the car as is without a
warranty somewhat gives the consumer notice that there is no
warranty and thus no "lemon law" protection.
MR. SNIFFEN, on the issue of vehicles manufactured for sale in
Canada, offered his understanding that almost all American
manufacturers will now honor the warranties on such vehicles, so
the problem that was being experienced five or six years ago is
no longer an issue. He said he understands Representative
Gruenberg's argument that consumers might want to know right up
front - via a notice posted on the window - whether a particular
vehicle they are looking at has been manufactured for sale
outside of the U.S.; however, the view at the DOL is that having
that information in writing somewhere in the documents provided
at the time of purchase is sufficient. He said that he is all
for providing as much consumer protection as possible, but the
disclosures required by AS 45.25.465(c) do seem to be more
duplicative and redundant than useful.
MR. SNIFFEN, in conclusion, relayed that the DOL thinks that
SB 164 will eliminate that provision's unintended consequence of
engendering class action lawsuits.
1:45:16 PM
REPRESENTATIVE GRUENBERG observed that the penalty section of
the Alaska Unfair Trade Practices and Consumer Protection Act
covers 40-50 different unfair trade practices, but the penalty
provisions aren't uniform and in some cases are what he
characterized as quite draconian. When debating the inclusion
of AS 45.25.465(c) into law, there was discussion, he recalled,
that it would make the failure to post notice on a used vehicle
subject to the Alaska Unfair Trade Practices and Consumer
Protection Act, but there wasn't much discussion regarding what
would constitute a separate offense. If indeed, under that Act,
the failure to put a sticker on each vehicle would be considered
a separate offense and lead to a $500 penalty being assessed for
each car and result in a very large total fine - particularly in
situations involving large dealerships - that was not his
intention, he relayed, and thus he would strongly support
changing the Alaska Unfair Trade Practices and Consumer
Protection Act. However the industry didn't seem interested in
pursuing that remedy.
REPRESENTATIVE GRUENBERG said he'd thought that it was the
policy of the Alaska Unfair Trade Practices and Consumer
Protection Act and the State of Alaska to provide full
disclosure and consumer protection, and so he doesn't see "any
good public policy" in repealing "this" warning to the
consumers. Representative Gruenberg asked Mr. Sniffen, as the
protector of the Alaskan consumer, to explain why it would be
good public policy to strip away the public's right to know via
"this tiny sticker."
MR. SNIFFEN said that he doesn't view the use of such a sticker
as a bad thing, and that it is the position of [the DOL] to
provide consumers as much protection as possible, but he doesn't
know that "this particular sticker" provides so much extra
consumer protection that its lack would be detrimental,
particularly given all the other disclosures that are already
being required by a law, though he doesn't have a problem with
continuing to require the posting of such a sticker on used
vehicles. Again, it just seemed as though the sticker required
by AS 45.25.465(c) provided redundant and duplicative
information.
1:48:45 PM
REPRESENTATIVE GRUENBERG characterized the removal of that
provision as just one possible solution to the perceived
problem, and acknowledged that the dealers do have a problem
because of the draconian penalty. But why not find some other
solution that doesn't "throw the baby out with the bath water,"
he asked. Why not turn this into a win-win scenario, keep the
consumer protection, and deal with the penalty provision?
Wouldn't that be fairer and more just?
MR. SNIFFEN said that that would certainly be another approach
to addressing the problem, and that the DOL would certainly
review such legislation.
CHAIR RAMRAS, after ascertaining that one else wished to
testify, closed public testimony on SB 164.
1:49:47 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 1,
labeled 25-LS0867\M.1, Bannister, 3/28/08, which read:
Page 1, line 1, following "Act":
Insert "limiting motor vehicle dealer charges for
fees and costs; and"
Page 1, following line 3:
Insert a new bill section to read:
"* Section 1. AS 45.25.440 is amended to read:
Sec. 45.25.440. Additional fees and costs
[ADVERTISED PRICE]. (a) When selling a motor vehicle,
a motor vehicle dealer may not charge any dealer fees
or costs in addition to the advertised or negotiated
price, except for
(1) fees actually paid to a state agency
for licensing, registration, or title transfers;
(2) charges for optional equipment, for
substantial additions to the motor vehicle, for
warranties, for services, and for style, design, or
color features [, UNLESS THE FEES OR COSTS ARE
INCLUDED IN THE ADVERTISED PRICE].
(b) In this section, "dealer fees or costs"
includes dealer preparation fees, document preparation
fees, surcharges, charges, and other dealer-imposed
fees and costs."
Page 1, line 4:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 1, line 8:
Delete "sec. 1"
Insert "sec. 2"
Page 1, line 14:
Delete "sec. 1"
Insert "sec. 2"
CHAIR RAMRAS objected.
REPRESENTATIVE HOLMES explained that Amendment 1 pertains to
document fees, and would require dealers, should they choose to
charge document fees, to include those fees as part of either
the advertized price of a vehicle or the negotiated price of a
vehicle. Amendment 1 won't preclude dealers from charging
document fees; instead, dealers will simply have to notify the
consumer that a portion of the advertized or negotiated price
includes document fees, as opposed to making such fees
additional to the advertized or negotiated price.
1:52:54 PM
REPRESENTATIVE LES GARA, Alaska State Legislature, after
relaying that the text of Amendment 1 is included in other
pending legislation, offered his understanding that Mr. Sniffen
would be able to address the merits of Amendment 1 and that
Representative Gatto has been "victimized by the [document] fee
process in the past." Representative Gara said that the problem
is that there are car dealers in the industry who seek to gain
an advantage over consumers by adding document fees to the
advertised or negotiated price. He said he doesn't have a
problem with dealers charging whatever they deem necessary, but
is opposed to the practice of adding extra fees after the price
has been agreed upon, because then the consumer is forced to pay
that extra amount even though it was not something he/she was
taking into consideration when negotiating the price.
CHAIR RAMRAS argued that the consumer could instead simply take
his/her business elsewhere; that's simply an aspect of doing
business in the private sector.
REPRESENTATIVE GARA argued that that's not possible when every
dealer engages in the same practice.
The committee took an at-ease from 1:58 p.m. to 2:01 p.m.
2:01:08 PM
REPRESENTATIVE GARA said that [Amendment 1] is intended to
"level the playing field so that dealers don't engage [in] what
I consider to be an untoward negotiating strategy towards a
consumer." He went on to say:
By adding the [document] fee after they negotiate a
price, and by every dealer in the city doing that -
and I think virtually every dealer does that though I
have heard that some dealers are now advertizing 'No
[document] fees' - ... when most of the dealers you go
to do the same thing, it really doesn't help to be
able to walk [away from] ... one car dealer and go to
another lot and have to deal with the same thing. So
I consider the [document] fee strategy a deceptive
one. The attorney general's office has fought it in
the past, and ... this legislature passed a law back
in the 1990s to ban the practice, but it was written
in a way where this is what's left as a loophole:
you're not allowed, under the interpretation of that
[law] ... to charge a [document] fee in addition to
the advertized price but you can charge it once you
move off the advertized price and it becomes the
negotiated price.
REPRESENTATIVE GARA relayed that he will be asking that
Amendment 1 be withdrawn after the committee has had the chance
to debate it, and indicated that he would be offering this same
amendment when SB 164 is heard on the House floor.
REPRESENTATIVE SAMUELS offered his belief that various types of
private-sector retail businesses seek to get customers to pay as
much as possible, and opined that in the case of buying a car,
it is the responsibility of the consumer to refuse to pay more
than he/she negotiates with the car dealer.
2:07:16 PM
REPRESENTATIVE CARL GATTO, Alaska State Legislature, relayed
that in one instance, he'd gone to a car dealer to buy a brand
new Subaru advertized for $19,995.95, but when he got ready to
make the purchase, the taxes, licensing fees, and document fees
were all lumped together as an additional charge. After telling
the dealer that he didn't want to pay the document fees because
he wasn't buying the car on credit, the dealer told him that he
was required to charge the document fees. Representative Gatto
said he paid the document fees at the time, but then later
learned that what the dealer had said was not true and that
document fees were simply an addition to the bill.
REPRESENTATIVE GATTO relayed that in another instance he'd gone
to a different car dealer to buy a used car and the same thing
occurred: even though the car dealer was not required to charge
document fees, he claimed that he was. Representative Gatto
said that in each case, he was told that he was required to pay
document fees. He characterized this practice as deceiving the
customer. Representative Gatto noted that during another
committee hearing, the comment was made that document fees are
simply part of the car dealer's additional profit.
CHAIR RAMRAS again said that the consumer could simply refuse to
purchase the product, adding his belief that that's just the way
the free market operates - consumers have the choice to not
participate in a particular transaction.
REPRESENTATIVE LYNN opined, however, that purposeful deception
is not acceptable.
CHAIR RAMRAS argued that that's not what is occurring when car
dealers charge document fees.
REPRESENTATIVE GATTO pointed out, though, that when a car dealer
says charging document fees is required when in fact it is not,
that is deceptive, and that he is unable to simply pick another
Subaru dealer to do business with because there aren't any
others within a 500 mile radius. He opined that car dealers
ought to have some obligation to be completely up-front and say,
if asked, that document fees are what they charge everybody so
as to make an additional profit.
CHAIR RAMRAS opined that Representative Gatto should simply pick
a different make of car next time.
[Following was a brief discussion regarding other legislation.]
REPRESENTATIVE HOLMES withdrew Amendment 1.
2:20:05 PM
REPRESENTATIVE GRUENBERG, mentioning that he'd attempted to get
an amendment crafted but was unable to do so, said he opposes
moving SB 164 from committee and will be [signing "Do Not Pass"
on the bill report].
REPRESENTATIVE DAHLSTROM moved to report CSSB 164(JUD) out of
committee with individual recommendations and the accompanying
fiscal notes.
REPRESENTATIVE GRUENBERG objected.
A roll call vote was taken. Representatives Samuels, Lynn,
Holmes, Dahlstrom, Coghill, and Ramras voted in favor of
reporting CSSB 164(JUD) from committee. Representative
Gruenberg voted against it. Therefore, CSSB 164(JUD) was
reported from the House Judiciary Standing Committee by a vote
of 6-1.
HB 323 - CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
2:21:13 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 323, "An Act relating to the crimes of assault in
the fourth degree and of resisting or interfering with arrest;
relating to the determination of time of a conviction; relating
to offenses concerning controlled substances; relating to
issuance of search warrants; relating to persons found
incompetent to stand trial concerning criminal conduct; relating
to probation and to restitution for fish and game violations;
relating to aggravating factors at sentencing; relating to
criminal extradition authority of the governor; removing the
statutory bar to prosecution of certain crimes; amending Rule
37(b), Alaska Rules of Criminal Procedure, relating to execution
of warrants; and providing for an effective date."
The committee took an at-ease from 2:21 p.m. to 2:28 p.m.
[Following was a brief discussion regarding how the committee
would be proceeding.]
2:29:34 PM
REPRESENTATIVE DAHLSTROM moved [to adopt] the proposed committee
substitute (CS) for HB 323, Version 25-GH2038\E, Luckhaupt,
3/25/08, [as the work draft]. There being no objection, Version
E was before the committee.
2:29:47 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), explained
that Sections 1 and 2 of Version E go hand-in-hand and require
pawn brokers - or people who lend money on secondhand items - in
municipalities with over 5,000 residents to maintain their
transaction records in an electronic format. She added that the
DOL is considering asking that these provisions be amended such
that those electronic records shall be shared with the
Department of Public Safety (DPS) should the DPS request them.
The purpose of these provisions is to help victims of property
crimes find their stolen property.
MS. CARPENETI explained that Section 3 of Version E provides
that a third [or subsequent] misdemeanor injury assault within a
10-year period would be a class C felony instead of just a class
A misdemeanor. The drafter, who'd suggested this change,
drafted it as part of the statute pertaining to assault in the
third degree; this makes a lot of sense, she opined, "because
then you don't need to go back to [the statute pertaining to]
assault in the fourth degree and include all the conforming
amendments."
2:32:14 PM
REPRESENTATIVE SAMUELS asked whether Sections 3 and 4 are
similar to provisions included in another piece of legislation
pertaining to domestic violence (DV).
MS. CARPENETI said these provisions do something similar but in
a different way, and indicated that the DOL prefers the language
of HB 323 [Version E] because the DOL is concerned that under
the other legislation, different judges will treat similarly-
situated people differently. In response to a question, she
relayed that the sponsor of that other legislation is aware of
the DOL's concern and is willing to work cooperatively to
alleviate it.
REPRESENTATIVE SAMUELS suggested that the provisions in that
other piece of legislation be changed to resemble Sections 3 and
4 of HB 323 [Version E] so that the underlying policy is adopted
regardless of which bill passes.
REPRESENTATIVE GRUENBERG, referring to Sections 1 and 2 of
Version E, said he wants to make sure that they don't violate
the single subject rule, since they don't appear to pertain to
criminal statutes.
MS. CARPENETI posited that Sections 1 and 2 would probably pass
such a challenge because both relate to the investigation of
stolen property.
REPRESENTATIVE GRUENBERG asked Ms. Carpeneti to provide a legal
opinion to that effect.
MS. CARPENETI agreed to do so.
REPRESENTATIVE GRUENBERG posited that such an opinion may help
the courts see that that issue was considered by the
legislature.
2:36:44 PM
MS. CARPENETI, turning attention back to Section 3, said that
the predicate crimes would include homicide, assault, felony
assault, physical injury assault - not including fear assault -
assault on an unborn child, stalking, and first and second
degree sexual assault and sexual abuse [of a minor]. Section 4
is a conforming amendment that directs the courts with regard to
what the legislature means in terms of what constitutes a
conviction.
MS. CARPENETI explained that Version E's Section 5, which was
suggested by Representative Ramras - addresses the problem of
people stealing property from a commercial establishment without
the property having been concealed; it will allow a person to be
detained and investigated even if the property he/she is
attempting to walk away with is not concealed. She indicated
that [Section 6 of Version E mirrors Section 3] of the original
bill; that Section 7 [of Version E mirrors Section 5 of the
original bill] but also adds the drug zopiclone - commonly
called "Lunesta" - to the list of schedule IVA controlled
substances; and that Sections 8 and 9 of Version E mirror
[Sections 6 and 7] of the original bill.
REPRESENTATIVE GRUENBERG [referring to Section 8] asked whether
there is any constitutional problem with a court issuing a
search warrant for property located outside [the court's]
jurisdiction.
MS. CARPENETI said she doesn't believe there is, though problems
might arise in the other jurisdiction with regard to enforcing
such a search warrant. [The problem Section 8 is meant to
address] is that some judges don't feel comfortable issuing a
search warrant for property located outside their court's
jurisdiction, and Section 8 would specifically outline in
statute that it is acceptable to do so. In response to a
question, she agreed to furnish the committee with examples of
such cases, again adding her belief that any problems [resulting
from the adoption of Section 8] would stem from an enforcement
issue and not a constitutional issue. In response to another
question, she explained that even under Section 8, one would
still have to comply with the requirements currently pertaining
to the issuing of search warrants, such as establishing probable
cause. In response to comments and a question, she elaborated:
If the place where you were going to be [searching]
refused to cooperate, then you would have to go to a
court in the other jurisdiction and ask them to give
full faith and credit and issue their own ... order.
But this arises mainly in [child] pornography cases
... [wherein Internet providers] are perfectly willing
to give us their records [but] they need a piece of
paper, and that's why [the DOL is proposing Section
8]. If they want to see a search warrant or a
subpoena, we can't get a subpoena 'til there's a court
case going on, so we need the ability to ask for a
search warrant.
REPRESENTATIVE GRUENBERG said he just wants to ensure that no
one will move to quash "on that basis."
MS. CARPENETI pointed out that that can't be prevented - people
can say whatever they want and file any motion they want.
REPRESENTATIVE GRUENBERG clarified that he doesn't want a court
to issue an order quashing a case.
2:42:54 PM
MS. CARPENETI went on to explain that Sections 10, 11, 12, [21,
and 22] of Version E are similar to [Sections 8, 9, 10, 19, and
20 of] the original bill, but the DOL has worked with the Office
of Public Advocacy (OPA) and the Public Defender Agency (PDA) to
address their concerns. These sections deal with situations
involving persons who are charged with a serious crime but are
incompetent to be tried, and the goal is to ensure that they are
treated in as fair a manner as possible while also protecting
the public. The language of the original bill provided for
mandatory evaluation and treatment for all people who are found
incompetent, whereas the language of Version E provides for
mandatory evaluation and treatment for only those charged with
felonies.
MS. CARPENETI explained that Section 13 of Version E has been
ratcheted down a bit from what it was [as Section 11 of the
original bill] by saying that the court can order probation for
an offense under Title 11 or Title 16 but not necessarily for a
violation under other titles. Sections 14 and 15 of Version E
are similar to language included in the original bill. Section
16 of Version E is a bit different than [Section 17 of the
original bill] in that now the governor may only appoint either
the lieutenant governor or the head of a principal department to
act on the governor's behalf in performing extradition duties.
REPRESENTATIVE GRUENBERG questioned whether the U.S.
Constitution contains a provision regarding extradition, whether
extradition under such a provision must be performed by the
chief executive, and, if so, whether such a provision would
allow the Alaska state legislature to provide the governor with
the ability to delegate that duty.
MS. CARPENETI said her research supports the delegation of that
duty, and offered to provide the committee with substantiating
case citations.
REPRESENTATIVE GRUENBERG suggested that she simply include them
in the legal opinion she'll be providing.
MS. CARPENETI agreed to do so. She then noted that the DOL has
suggested a change in a Senate bill's version of this provision
that specifies that the delegation and subsequent action is on
the governor's behalf and at his/her direction so that he/she
remains principally responsible. That language is based on
Oregon law and has been upheld in Oregon. The DOL reviews every
extradition in which Alaska is involved, and isn't aware of any
other state wherein the governor actually signs the extradition
documents himself/herself.
2:46:32 PM
MS. CARPENETI explained that Sections 17 and 18 are new
provisions that amend the statute of limitations for post-
conviction relief applications from two years to one year; this
proposed change will make the statutes pertaining to post-
conviction relief uniform with regard to their statute of
limitations. She added that the DOL has worked with the PDA and
the OPA on these provisions. She indicated that these
provisions require the inclusion of [an indirect court rule
amendment] found later in the bill.
REPRESENTATIVE GRUENBERG, referring to Section 17, asked whether
there will be exceptions to the proposed one-year statute of
limitations.
MS. CARPENETI said that there are several exceptions such as one
pertaining to newly discovered evidence, but if an exception
doesn't apply, then the statute of limitations will be one year.
REPRESENTATIVE GRUENBERG mentioned the standard set out in
Salinas v. State, 373 P.2d 512 (Alaska 1962), which he called
the main first case addressing motions for a new trial.
MS. CARPENETI then relayed that Section 25 of Version E has been
changed from [Section 22 of] the original version in that now
the warrant shall be executed and returned within 30 days as
opposed to just within a reasonable time.
2:49:08 PM
REPRESENTATIVE GRUENBERG asked what provisions of law are being
repealed by Sections 23 and 24 of Version E.
MS. CARPENETI relayed that those sections repeal provisions that
were being repealed [via Section 21 of] the original bill.
Under Version E, Section 23 repeals a provision of statute in
order to conform to the change being made [via Section 9 of
Version E], the bill's "telephonic" search warrant provisions,
and Section 24 repeals the existing bar against the state going
forward with a criminal prosecution of a criminal act when that
act has already been prosecuted by the federal government. She
offered that even though such prosecutions by the state wouldn't
come up very often - and the state would still have to comply
with certain timeline requirements/restrictions - it's
important, for the sovereignty of the state of Alaska, to pursue
crimes against its own laws and not be usurped by the federal
government. In response to a question, she said that the issue
of double jeopardy only arises in instances of two prosecutions
by the same sovereignty. In response to another question, she
offered her belief that a conviction in federal court could not
be used as evidence in a state prosecution.
REPRESENTATIVE GRUENBERG questioned whether, under the bill, an
"ex post facto" issue would arise should the state choose to
pursue those [legislators] who've recently been convicted by the
federal government of bribery.
MS. CARPENETI opined that such an issue would arise because of
the effective date of the bill. In response to a question, she
indicated that in order for similar cases in the future to be
prosecuted by both the federal government and the state, the
acts would also have to be illegal under state law.
REPRESENTATIVE GRUENBERG questioned whether the state should
enact laws prohibiting acts such as money laundering.
MS. CARPENETI said that might not be a bad idea, but she would
prefer to give that concept further consideration.
2:56:41 PM
REPRESENTATIVE GRUENBERG referred to Amendment 1 to Version E,
labeled 25-GH2038\E.2, Luckhaupt, 3/27/08, which read:
Page 1, line 2, following "felons;":
Insert "relating to arson and criminally
negligent burning;"
Page 4, following line 10:
Insert new bill sections to read:
"* Sec. 7. AS 11.46.410(a) is amended to read:
(a) A person commits the crime of arson in the
second degree if the person knowingly [INTENTIONALLY]
damages a building by starting a fire or causing an
explosion.
* Sec. 8. AS 11.46 is amended by adding a new
section to read:
Sec. 11.46.427. Criminally negligent burning in
the first degree. (a) A person commits the crime of
criminally negligent burning in the first degree if
the person
(1) violates AS 11.46.430; and
(2) has been previously convicted of
violating AS 11.46.400 - 11.46.430 or AS 41.15.150 or
a law or ordinance of this or another jurisdiction
with elements similar to those offenses.
(b) Criminally negligent burning in the first
degree is a class C felony.
* Sec. 9. AS 11.46.430 is amended to read:
Sec. 11.46.430. Criminally negligent burning in
the second degree. (a) A person commits the crime of
criminally negligent burning in the second degree if
with criminal negligence the person damages property
of another by fire or explosion.
(b) Criminally negligent burning in the second
degree is a class A misdemeanor."
Renumber the following bill sections accordingly.
Page 6, following line 19:
Insert a new bill section to read:
"* Sec. 17. AS 12.55.127(c) is amended to read:
(c) If the defendant is being sentenced for
(1) escape, the term of imprisonment shall
be consecutive to the term for the underlying crime;
(2) two or more crimes under AS 11.41, a
consecutive term of imprisonment shall be imposed for
at least
(A) the mandatory minimum term under
AS 12.55.125(a) for each additional crime that is
murder in the first degree;
(B) the mandatory minimum term for each
additional crime that is an unclassified felony
governed by AS 12.55.125(b);
(C) the presumptive term specified in
AS 12.55.125(c) or the active term of imprisonment,
whichever is less, for each additional crime that is
(i) manslaughter; or
(ii) kidnapping that is a class A felony;
(D) two years or the active term of
imprisonment, whichever is less, for each additional
crime that is criminally negligent homicide;
(E) one-fourth of the presumptive term
under AS 12.55.125(c) or (i) for each additional crime
that is sexual assault in the first degree under
AS 11.41.410 or sexual abuse of a minor in the first
degree under AS 11.41.434, or an attempt,
solicitation, or conspiracy to commit those offenses;
and
(F) some additional term of imprisonment
for each additional crime, or each additional attempt
or solicitation to commit the offense, under
AS 11.41.200 - 11.41.250, 11.41.420 - 11.41.432,
11.41.436 - 11.41.458, [OR] 11.41.500 - 11.41.520, or
AS 11.46.400 - 11.46.430."
Renumber the following bill sections accordingly.
Page 11, line 21:
Delete "secs. 17 and 18"
Insert "secs. 21 and 22"
Page 11, line 22:
Delete "sec. 19"
Insert "sec. 23"
Page 11, line 28:
Delete "Sections 3, 4, 7, 13 - 15, 20, and 24"
Insert "Sections 3, 4, 7 - 10, 16 - 18, 24, and
28"
Page 12, line 3:
Delete "Sections 8, 9, 23, and 25"
Insert "Sections 11, 12, 27, and 29"
Page 12, line 6:
Delete "Sections 10 - 12, 21, and 22"
Insert " Sections 13 - 15, 25, and 26"
Page 12, line 9:
Delete "Section 16"
Insert "Section 19"
Page 12, line 14:
Delete "Sections 17 - 19 and 26"
Insert "Sections 21 - 23 and 30"
REPRESENTATIVE GRUENBERG indicated that Amendment 1 is meant to
address the series of arsons that have been occurring in his
district and in Mountain View. Amendment 1 will tighten and
strengthens the current arson and negligent burning laws in
three ways: it alters AS 11.46.410 - pertaining to the crime of
arson in the second degree - by changing the mental state from
"intentionally" to "knowingly"; it adds a new section 427 to AS
11.46, thus establishing the crime of criminally negligent
burning in the first degree - a class C felony that will be
applicable to repeat violators of AS 11.46.400 - 11.46.430 and
AS 41.15.150; it alters AS 11.46.430 such that it now pertains
to the crime of criminally negligent burning in the second
degree; [and it adds violations of AS 11.46.400 - 11.46.430 to
the sentencing provisions of AS 12.55.127(c), which addresses
consecutive and concurrent terms of imprisonment].
CHAIR RAMRAS questioned whether [proposed AS 11.46.427] would
address those who set fires to cars in recreational-use areas.
REPRESENTATIVE GRUENBERG, remarking that it is his intention
that it do so, said he would research that issue further.
CHAIR RAMRAS said, "We would want it to be at least as bad to
commit a negligent burning in an urban area as it is to burn a
car in the Knik recreation area."
REPRESENTATIVE GRUENBERG concurred. He noted that he and the
DOL would be researching whether there should be a look-back
period associated with [proposed AS 11.46.427].
3:00:53 PM
CRAIG GOODRICH, Fire Chief, Anchorage Fire Department (AFD),
Municipality of Anchorage (MOA), said the AFD supports Amendment
1 [to Version E]. He went on to explain that arson is a very
prevalent activity, and that it is rare for someone [who has
served or is serving time] in the criminal justice system to not
have a background in setting fires. For example, it was relayed
to him by staff at the McLaughlin Youth Center that they don't
track which of their inmates have committed arson; instead they
simply assume that all their inmates have committed arson at
some point in their criminal careers because almost all of them
have. The AFD has two full time arson investigators and is
considering adding a third, and this, in and of itself, he
observed, speaks to the fact that there is plenty of arson
investigation work to be had. There are some sections of the
municipality that are more prone to instances of arson than
other sections. As a practical matter, the fires that are
started often spread out of control and do a great deal of harm
to both life and property. In conclusion, he said that what he
likes about [Amendment 1] is that it ensures that repeat arson
offenders will be treated differently, adding "We're pretty
excited about ... all of this and the potential for it moving
forward."
CHAIR RAMRAS expressed appreciation for Amendment 1, and
indicated that it would be included in a forthcoming proposed
CS.
REPRESENTATIVE GRUENBERG noted that Representative Gatto has
also been very involved with this issue.
3:04:54 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), relayed he would be speaking to the provisions pertaining
to search warrants - Sections 8 and 9 [of Version E] - and that
the DPS supports HB 323. With regard to Section 8, which would
allow the court to issue a search warrant for locations outside
the state, he remarked that this proposed change is important
when investigating crimes involving Internet technology or in
situations involving interactions with the Royal Canadian
Mounted Police (RCMP).
LIEUTENANT DIAL offered an example of the latter type of
situation involving law enforcement officers in Ketchikan
investigating a person in Hyder who had had a serious accident
while driving under the influence (DUI) and had seriously
injured [himself and] a number of people. The driver was
transported to Stewart, Canada, for treatment, and, in this
particular case, the officers were able to find a local [Alaska]
judge who issued a search warrant for the medical records of the
perpetrator in order to illustrate his blood alcohol
concentration (BAC), and this warrant was honored by the
Canadian government. However, the judge could have refused,
since there is no requirement in state law that a judge issue a
search warrant for property located in another jurisdiction. He
added that the DPS definitely supports Section 8.
LIEUTENANT DIAL posited that Section 9 - which pertains to
search warrants issued via telephone - will increase the
productivity of law enforcement officers across the state.
Working in remote areas of Alaska, there are many instances
where the need for a search warrant has been identified, but
currently law enforcement officers have to travel to a community
with a magistrate or judge in order to present evidence and get
a search warrant. The ability to do that telephonically will be
an enormous time saver, but will in no way lower the current
high standard that must be met in order to get a search warrant
issued; in fact, it might even be more difficult to obtain a
search warrant telephonically because the evidence wouldn't be
presented in person at the time of the request. Regardless of
this potential increased difficulty, Section 9 will provide a
way for law enforcement officers to increase their productivity
and make better use of their time.
3:07:45 PM
REPRESENTATIVE GRUENBERG, referring to Section 8, questioned
whether an interstate compact or federal legislation could be of
assistance, and whether the federal government should be looking
at international treaties or agreements with regard to this
issue.
LIEUTENANT DIAL said he would have to research those points.
REPRESENTATIVE GRUENBERG observed that the legislature could
assist in getting things moving in that direction if such would
be of any help. He said he doesn't want the state to get into a
situation where there are conflicts; it would be worth it to
work out potential problems beforehand.
CHAIR RAMRAS indicated that [Amendments 2 and 3 to Version E]
would also be included in a forthcoming proposed CS.
3:10:30 PM
MS. CARPENETI referred to Amendment 2, which read [original
punctuation provided]:
Page 9, lines 13 - 21: Delete all material and insert
the following:
"(d) The court may not consider a substantive
claim in an application brought under AS 12.72.010 or
the Alaska Rules of Criminal Procedure until the court
has first determined that
(1) the application is timely; and
(2) except for an application described in
AS 12.72.025 or allowed under (c) of this section, no
previous application has been filed.
MS. CARPENETI explained that Amendment 2 would address a concern
the OPA has with regard to Section 19 of Version E. The
intention [with Section 19 and Amendment 2] is to provide the
courts with direction regarding post-conviction relief
applications, such that the courts should first determine
whether an application is timely and whether it is illegally
successive to another application, and then - if the application
is timely and not illegally successive - go on to consider the
merits/substance of the application. Because a post-conviction
relief application can sometimes be very complicated, the DOL
believes that it will save the court time if it is directed to
bifurcate its consideration of a post-conviction relief
application in order to first determine whether it should even
be considered at all. She said that Amendment 2 accomplishes
this in a manner that both the OPA and the DOL are comfortable
with.
REPRESENTATIVE GRUENBERG indicated that he would later be
researching the exceptions outlined in Amendment 2's proposed AS
12.72.020(d)(2).
MS. CARPENETI noted that they are located in AS 12.72 - which
pertains to post-conviction relief procedures for persons
convicted of criminal offenses.
3:12:55 PM
MS. CARPENETI referred to Amendment 3, [which was drafted to fit
the original version of the bill and] which read [original
punctuation provided]:
Page 8, following line 9:
Insert a new bill section to read:
*Sec. 22. The uncodified laws of the State of Alaska
as enacted in Chapter 24, Section 36(c), SLA 2007 is
amended to read:
(c) AS 12.72.025, enacted by sec. 25 of this Act,
applies to offenses committed before, on, or after the
effective date of sec. 25 of this Act. A person whose
application for post-conviction relief was denied
before the effective date of sec. 25 of this act has
until July 1, 2008, to file a claim described in AS
12.72.025. This subsection does not authorize filing
a claim under AS 12.72 or the Alaska Rules of Criminal
Procedure that is not otherwise available under AS
12.72, the Alaska Rules of Criminal Procedure, or
other provisions of law."
Renumber the following bill sections accordingly.
Page 9, following line 7:
Insert a new bill section to read:
*Sec. 23. Section 22 of this Act is retroactive to
July 1, 2007.
Renumber the following bill sections accordingly.
MS. CARPENETI, characterizing Amendment 3 as probably the
cleanest way to go about addressing the issue, explained that
Amendment 3 is an amendment to an applicability section that was
adopted last year via HB 90, which provided a one-year statute
of limitations for what she termed, "Grinols PCRs"; a PCR is a
post-conviction relief application and Grinols v. State of
Alaska is a case wherein the court decided that due process
fairness requires a person to get a lawyer to litigate whether
the lawyer assisting the person with his/her first post-
conviction relief application was effective. The one-year
statute of limitations adopted by HB 90 for bringing a Grinols
PCR is one year from when the court denied the first post-
conviction relief application. She indicated that that
aforementioned applicability section has been interpreted by
some people to mean that a person gets "one free application for
a PCR without complying with the other statutory provisions and
court common-law provisions of PCRs." Because of [this
interpretation] there is now someone who is claiming, for a
murder conviction in 1980, that this gives him/her "another free
PCR."
MS. CARPENETI said that the DOL wanted to clarify that instead
all the other provision of law - common law, statutory law, and
court rules, such as the requirement that one must exercise due
diligence in bringing a post-conviction relief application -
apply to Grinols PCRs too. Clarity is needed on this issue
because there is some concern that there will be "a rash of PCRs
based on 1980s and 1990s murder convictions" since those people
are still in jail. Again, the goal is to clarify that Grinols
requires due diligence when bringing a post-conviction relief
application based on ineffective counsel for one's first post-
conviction relief application, that the same standards that
apply to other post-conviction relief applications apply to
Grinols PCRs as well.
MS. CARPENETI explained that the letter of intent included in
members' packets for consideration would clarify that Amendment
3's proposed change to the aforementioned applicability section
is simply saying that all laws that apply to post-conviction
relief applications also apply to "these that are brought up
'til July 1, 2008." In conclusion, she said that the DOL has
worked cooperatively with the PDA on Amendments 2 and 3 [to
Version E], but has not yet gotten a response back from the PDA
regarding the letter of intent.
[HB 323, Version E, was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:16 p.m.
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