Legislature(2017 - 2018)GRUENBERG 120
04/11/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB230 | |
| SB205 | |
| HB387 | |
| HB351 | |
| HB336 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 230 | TELECONFERENCED | |
| + | SB 205 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 351 | TELECONFERENCED | |
| += | HB 336 | TELECONFERENCED | |
| += | HB 387 | TELECONFERENCED | |
HB 351-JUVENILES: JUSTICE,FACILITES,TREATMENT
6:31:15 PM
CHAIR CLAMAN announced that the next order of business would be
HOUSE BILL NO. 351, "An Act relating to care of juveniles and to
juvenile justice; relating to employment of juvenile probation
officers by the Department of Health and Social Services;
relating to terms used in juvenile justice; relating to
mandatory reporters of child abuse or neglect; relating to
adjudication of minor delinquency and the deoxyribonucleic acid
identification registration system; relating to sexual assault
in the third degree; relating to sexual assault in the fourth
degree; repealing a requirement for administrative revocation of
a minor's driver's license, permit, privilege to drive, or
privilege to obtain a license for consumption or possession of
alcohol or drugs; and providing for an effective date."
6:31:38 PM
CHAIR CLAMAN moved to adopt Amendment 1, labeled 30-LS0416\N.3,
Laffen, 4/10/18, which read as follows:
Page 1, line 5, following "system;":
Insert "relating to jurisdiction for delinquency
proceedings;"
Page 1, line 8, following "drugs;":
Insert "amending Rules 2, 3, 8, 12, 14, 16, 21,
22, 23, and 25, Alaska Delinquency Rules;"
Page 9, following line 4:
Insert a new bill section to read:
"* Sec. 17. AS 47.12.020(b) is amended to read:
(b) Except as otherwise provided in this
chapter, proceedings relating to a person who is 18
years of age or over are governed by this chapter if
the person is alleged to have committed a violation of
(1) the criminal law of the state or a
municipality of the state, the violation occurred when
the person was under 18 years of age, and the period
of limitation under AS 12.10 has not expired; or
(2) AS 11.56.760(a)(2) and was adjudicated
as a delinquent for the offense that required the DNA
testing under AS 44.41.035."
Renumber the following bill sections accordingly.
Page 19, following line 14:
Insert a new bill section to read:
"* Sec. 41. The uncodified law of the State of
Alaska is amended by adding a new section to read:
INDIRECT COURT RULE AMENDMENT. AS 47.12.020(b),
as amended by sec. 17 of this Act, has the effect of
amending the following Alaska Delinquency Rules by
providing that certain persons 18 years of age or
older are subject to adjudication as minors:
(1) Rule 2(n), Alaska Delinquency Rules;
(2) Rule 3(b), Alaska Delinquency Rules;
(3) Rule 3(c), Alaska Delinquency Rules;
(4) Rule 8(b), Alaska Delinquency Rules;
(5) Rule 8(c), Alaska Delinquency Rules;
(6) Rule 12(b), Alaska Delinquency Rules;
(7) Rule 12(c), Alaska Delinquency Rules;
(8) Rule 12(d), Alaska Delinquency Rules;
(9) Rule 14(b), Alaska Delinquency Rules;
(10) Rule 16(a), Alaska Delinquency Rules;
(11) Rule 16(b), Alaska Delinquency Rules;
(12) Rule 21(g), Alaska Delinquency Rules;
(13) Rule 22(c), Alaska Delinquency Rules;
(14) Rule 23(b), Alaska Delinquency Rules;
(15) Rule 25(b), Alaska Delinquency Rules;
(16) Rule 25(c)(4), Alaska Delinquency
Rules."
Renumber the following bill sections accordingly.
Page 19, line 22, following the first occurrence of
"Act":
Insert "AS 47.12.020(b), as amended by sec. 17 of
this Act,"
Page 19, line 22:
Delete "sec. 19"
Insert "sec. 20"
Page 19, line 23:
Delete "secs. 2 - 9 and 19"
Insert "secs. 2 - 9, 17, and 20"
Page 19, following line 29:
Insert a new bill section to read:
"* Sec. 44. The uncodified law of the State of
Alaska is amended by adding a new section to read:
CONDITIONAL EFFECT. Section 17 of this Act takes
effect only if sec. 41 of this Act receives the two-
thirds majority vote of each house required by art.
IV, sec. 15, Constitution of the State of Alaska."
Renumber the following bill section accordingly.
Page 19, line 30:
Delete "Section 41"
Insert "Section 43"
REPRESENTATIVE STUTES objected for purposes of discussion.
6:32:16 PM
CHAIR CLAMAN explained that he is moving Amendment 1 on behalf
of the bill sponsor.
6:32:39 PM
The committee took an at-ease from 6:32 p.m. to 6:33 p.m.
6:33:20 PM
[Discussion regarding the amendments.]
6:34:05 PM
REPRESENTATIVE IVY SPOHNHOLZ advised that Amendment 1 was
requested by Quinlan Steiner, Public Defender and he is
available by telephone.
CHAIR CLAMAN asked Quinlan Steiner to explained Amendment 1.
6:34:20 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), advised that
as he reviewed CSHB 351, he noted that in creating a new crime
for failing to provide a DNA sample, there is the possibility
that it would result in an adult criminal conviction stemming
from an arrest and adjudication under the juvenile delinquency
rules. This, he explained, created a situation wherein the
legislature should consider the following two particular
problems: it would leave an adult record that was visible that
required a predicated conviction which would not be visible on
CourtView, and that would be an indication that someone had a
juvenile record. Thereby, openly undermining the juveniles'
attempts at rehabilitation. The inconsistency of having a
juvenile adjudication running at the same time as an adult
criminal offense, where this adult criminal offense could
ultimately override the primary concerns of rehabilitation in a
juvenile delinquency matter, and those two appear to be
inconsistent. Consequently, he said that he made the suggestion
to handle this entire matter, stemming from a juvenile
delinquency matter, under the juvenile delinquency rules, which
would be more consistent with the focus on rehabilitation.
6:36:09 PM
REPRESENTATIVE KREISS-TOMKINS moved Conceptual Amendment 1
Version 30-LS0416\N.4, to Amendment 1 Version 30-LS0416\N.3,
which read as follows:
Page 2, following line 5:
Insert a new paragraph to read:
"(1) Rule 2(k), Alaska Delinquency Rules;"
Renumber the following paragraphs accordingly.
Page 2, following line 5:
Insert a new paragraph to read:
"(1) Rule 2(k), Alaska Delinquency Rules;"
Renumber the following paragraphs accordingly.
CHAIR CLAMAN asked Mr. Steiner to explain Amendment N.4.
6:36:45 PM
MR. STEINER advised that he had not seen Conceptual Amendment 1
to Amendment 1.
CHAIR CLAMAN explained how the above amendment read, and he
explained that it adds one more delinquency rule that was not in
Amendment 1.
MR. STEINER responded that those were discussions "we had," but
that is the definition of a juvenile. Therefore, he explained,
the committee would be making an indirect rule amendment to make
clear that the definition of juvenile in this limited
circumstance includes an individual who was 18 years of age at
the time this failure to provide DNA event occurred. Normally,
he further explained, someone who is 18 years of age, under the
juvenile delinquency rules, the conduct predates their 18th
birthday. He explained that the court can make this clear in
the rules that what was happening now needed to be governed by
the delinquency rules.
6:37:47 PM
CHAIR CLAMAN asked whether there was an objection to the
adoption of Conceptual Amendment 1 to Amendment 1. There being
no objection, Conceptual Amendment 1 to Amendment 1 was adopted.
6:37:59 PM
CHAIR CLAMAN asked whether there was an objection to the
adoption of Amendment 1, as amended.
REPRESENTATIVE EASTMAN objected.
6:38:13 PM
REPRESENTATIVE KOPP referred to Amendment 1, and commented that
it looks like a DNA swab based on a juvenile offense, and asked
whether this amendment changes what the law would be currently.
For example, if a 16-year-old committed an assault and was
required to submit to a DNA test, and for various reasons by the
time they were served with an order they were age 18 and they
refused to submit a DNA sample, "so now they have an adult
charge based on a two-year old juvenile charge." He asked
whether the law (audio difficulties).
MR. STEINER responded that under current statute, a juvenile is
required to provide a sample and that doesn't change, it simply
makes it a criminal offense. The concern comes in where
someone's conduct occurs just prior their 18th birthday, they
are arrested or adjudicated after their 18th birthday, and they
then choose to not provide a sample. In the prior law, that was
non-criminal and now it becomes criminal, it is simply that it
would be handled as a juvenile offense rather than an adult
offense, he offered.
6:39:53 PM
REPRESENTATIVE KOPP (audio difficulties).
MR. STEINER answered that the bill actually changes the way the
law works because the bill itself makes it a criminal offense
where it was not a criminal offense. Amended Amendment 1 is
focused on making sure the underlying case continues to be
handled as a juvenile matter even though the refusal occurred
after an 18th birthday. He said that will put the two cases
together, essentially, and ensure that focus for that individual
remains on rehabilitation as is generally the case (audio
difficulties).
CHAIR CLAMAN referred to Sec. 19 [AS 47.12.120(l)] page 12, 14-
25, and explained that it turns what was a non-criminal offense
into a criminal offense. Under current law, not giving a DNA
sample is not a criminal offense, and this bill will make it a
criminal offense.
6:41:28 PM
REPRESENTATIVE LEDOUX surmised that if a person committed a
crime as a juvenile, and then after their 18th birthday they
commit the other crime of failing to submit a DNA sample, this
amendment would still make that subject to the juvenile rules.
She asked why the committee should do that because they were an
adult when they decided to not provide their DNA.
MR. STEINER answered that Representative LeDoux is correct as
long as the requirement that the person provide the DNA sample
stems from something that occurred as a juvenile. Under this
amendment, that adult conduct would be treated similarly as to
the case with the juvenile conduct. The reason being, he
explained, is two-fold: one is that you would have on CourtView
and in the public record, a record of a conviction for which a
predicate must exist. The predicate being a conviction or
adjudication for something that would lead to information
indicating that that person had a juvenile record. Thereby, he
pointed out, essentially opening up confidentiality and making
clear that there is a possible juvenile record there, it could
have been an out-of-state record but it could also be a juvenile
record. He pointed out that it would be counter to the goals of
rehabilitation and keeping confidentiality for juvenile so they
can move past whatever juvenile conduct took place. The other
reason being, he offered, is that this can happen relatively
quickly in that someone could be arrested just before their 18th
birthday, and then this event could occur right after their 18th
birthday, all based upon juvenile conduct. Again, he said, that
would sever the juvenile goals and now there are competing
interests in this adult case and that might overwhelm or
overrule the focus on juvenile rehabilitation and a chance to
move ahead.
6:44:00 PM
MATT DAVIDSON, Social Services Program Officer, Division of
Juvenile Justice, explained that Amendment 1, as amended,
addresses an issue that Mr. Steiner identified to the division,
and the Department of Health and Social Services (DHSS) does not
have a concern about the amendment. He explained that the
division collects DNA samples if the offense was a felony
against persons and occurred after their 16th birthday. He
remarked that the scenario of a juvenile refusing to submit
their DNA sample "doesn't really happen," so it is not a case
the division sees a lot of where the juveniles are an
adjudicated delinquent for a crime against a person and they
turn 18 years of age, and then they refuse to submit a DNA
sample, "that doesn't happen." In the event it did take place,
the division believes it is appropriate that they continue to
stay in the juvenile justice system. Juveniles who are
adjudicated close to their 18th birthday can stay in the
juvenile justice system up to age 20. Therefore, he explained,
they can commit a crime when they are almost 18 years of age and
continue to stay in the system up to age 20 with their own
agreement. He offered that the issues Mr. Steiner identified
are appropriate in that the conduct that would lead to this
criminal offense is related to a delinquency offense, and the
division is prepared to handle those cases in the same manner it
handles other delinquency offenses.
6:45:33 PM
REPRESENTATIVE LEDOUX commented that possibly the committee
should reconsider CourtView but she would not make a decision as
to whether or not something should be a criminal offense
depending upon whether it would be listed on CourtView.
6:46:08 PM
REPRESENTATIVE EASTMAN offered his impression that one of the
distinctions between dealing with this under the juvenile
section versus the adult section is due to the hope that by the
time someone becomes an adult they could have then been
rehabilitated and had the opportunity to learn from their
mistakes. He asked whether he had misinterpreted the testimony.
MR. DAVIDSON explained that the delinquency statutes and the
purpose of the division is slightly different than the adult
correctional system, and one example is that juvenile records
are deemed confidential. Mr. Steiner identified this unusual
circumstance which could take place here, wherein juveniles have
been added to the crime of failure to submit a DNA sample, and
they are in the juvenile justice system proceeding through their
process and possibly in a treatment program, but they refuse to
submit a DNA sample. The juvenile would stay in the juvenile
justice system, therefore, this offense that occurred related to
their previous delinquency offense would be attached, of which
the division is not concerned.
6:47:52 PM
REPRESENTATIVE EASTMAN offered a scenario of a juvenile who
commits a felony, they are in the system for that felony, and
now "we want to say that" just because they turned 18 does not
mean they should be treated as an adult and should be treated as
a juvenile. He asked, at what point does the division want to
"cut them loose," at what age if it is not age 18.
JUDY JESSEN, Staff, Representative Ivy Spohnholz, Alaska State
Legislature, responded that (audio difficulties).
6:49:09 PM
REPRESENTATIVE EASTMAN pointed out that Ms. Jessen did not
answer his question, and his question was directed to the
Division of Juvenile Justice.
MR. DAVIDSON answered that, after the age of 18 the new criminal
acts are referred to the adult criminal justice system. As this
act is related to a delinquent act and it is actually a
responsibility that the division is administering, the division
and the public defender believe it is appropriate to stay in the
juvenile justice system. He explained that it is similar to
conditions of conduct for release from custody, some of those
conditions become criminal acts because the person failed to
follow through on their appropriate probation conditions. Those
people stay in the juvenile justice system even though they
could be viewed as new criminal acts because they are under the
division's supervision. He reiterated that this is an unusual
circumstance, it is not something the division sees, and the
drafter identified that juveniles are required to submit DNA
samples and they had not been included in this criminal act
under Title 11. That issue, he explained, the drafters
identified as a bit of incongruity in the fact they were under
Title 44, they were required to submit DNA samples but they were
not subject to the penalties, the same requirements.
6:50:49 PM
REPRESENTATIVE KOPP asked whether the only circumstance under
which a DNA swab would be sought would be due to a felony
offense against a person.
MR. DAVIDSON responded, a minor over the age of 16 who commits a
felony against a person.
6:51:24 PM
REPRESENTATIVE KOPP referred to a less severe offense and
offered the scenario of a 17-year-old being arrested for a DUI,
"and then when they turn 18, by the time they are offered the
breath test because they were arrested at 11:00 p.m., they do a
breath test refusal." He commented that that is a separate
class A misdemeanor offense, or it could be felony depending
upon whether they had refused the test previously. He related
that that is only possible because they were arrested for a DUI,
and he asked whether that would be the same circumstance under
juvenile law because they do not serve three days in prison.
MR. DAVIDSON replied that Representative Kopp identified an
offense that is outside of the juvenile justice system, it is a
driving offense and handled by the district court. He related
that he was not in a position to speak as to how a DUI fits into
the scenario.
6:52:34 PM
REPRESENTATIVE REINBOLD commented that she believes in "catching
them early" and helping kids to change their ways and heart due
to a conviction. She related that it is fair to all Alaskans to
know whether a person committed a felony against a person and
that past behavior is often predicted future behavior. She
asked whether this legislation makes it softer or easier in any
manner, or is this a technical change with regard to people not
being able to see records or understand that a person had been a
danger in the past.
MR. DAVIDSON answered that he does not believe it does, the
offense being discussed is refusing to submit to a DNA test,
which is a mouth swab administered in the office. The
underlying offense would not be the offense that led them to the
DNA sample and it would not be available to the public, so that
change is not a concern.
REPRESENTATIVE EASTMAN maintained his objection to Amendment 1,
as amended.
6:54:00 PM
A roll call vote was taken. Representatives Stutes, Kreiss-
Tomkins, and Claman voted in favor of the adoption of Amendment
1, as amended. Representatives Kopp, LeDoux, Eastman, and
Reinbold voted against it. Therefore, Amendment 1, as amended,
failed to be adopted by a vote of 3-4.
6:54:56 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 2, labeled 30-
LS0416\N.1, Laffen, 4/6/18, which read as follows:
Page 18, line 20, through page 19, line 12:
Delete all material and insert:
"* Sec. 38. AS 47.17.020(a) is amended to read:
(a) The following persons who, in the
performance of their occupational duties or [,] their
appointed duties under (8) of this subsection, [OR
THEIR VOLUNTEER DUTIES UNDER (9) OF THIS SUBSECTION,]
have reasonable cause to suspect that a child has
suffered harm as a result of child abuse or neglect
shall immediately report the harm to the nearest
office of the department:
(1) practitioners of the healing arts;
(2) school teachers and school
administrative staff members, including athletic
coaches, of public and private schools;
(3) peace officers and officers of the
Department of Corrections;
(4) administrative officers of
institutions;
(5) child care providers;
(6) paid employees of domestic violence and
sexual assault programs, and crisis intervention and
prevention programs as defined in AS 18.66.990;
(7) paid employees of an organization that
provides counseling or treatment to individuals
seeking to control their use of drugs or alcohol;
(8) members of a child fatality review team
established under AS 12.65.015(e) or 12.65.120 or the
multidisciplinary child protection team created under
AS 47.14.300;
(9) juvenile probation officers, juvenile
probation office staff, and staff of juvenile
detention facilities and juvenile treatment
facilities, as those terms are defined in AS 47.12.990
[VOLUNTEERS WHO INTERACT WITH CHILDREN IN A PUBLIC OR
PRIVATE SCHOOL FOR MORE THAN FOUR HOURS A WEEK].
* Sec. 39. AS 47.17.022(e) is amended to read:
(e) Each school district that provides training
under this section shall provide notice to public and
private schools located in the school district of the
availability of the training [AND INVITE VOLUNTEERS
WHO ARE REQUIRED TO REPORT ABUSE OR NEGLECT OF
CHILDREN UNDER AS 47.17.020 TO PARTICIPATE IN THE
TRAINING AT NO COST TO THE VOLUNTEER]."
Renumber the following bill sections accordingly.
Page 19, line 14:
Delete "and 47.14.990(9)"
Insert ", 47.14.990(9); and AS 47.17.020(j)"
Page 19, line 30:
Delete "Section 41"
Insert "Section 42"
REPRESENTATIVE KREISS-TOMKINS objected.
6:54:57 PM
REPRESENTATIVE EASTMAN advised that the legislature made a
mistake in adopting a recent statute "and in that statute you
can find the change listed on page 2 of the amendment, at the
first line." The legislature put into statute, and basically
incorporating for the first time that volunteers under the
category of mandatory reporting, makes them criminally liable if
they fail to report. He said, even as few as four hours a week
which could be a high school football game within which they
volunteer. In the event the committee permits this to continue
in statute, before the change was made, and now, and in the
future, there is nothing that prohibits or makes it hard for
volunteers to report issues of which they are concerned, or
observe. The criminal liability is (audio difficulties) if
dealing with a volunteer, he opined, that is raising the bar to
such an extent that volunteers no longer volunteer. He added
that since there is nothing that will make it difficult for them
to report or be involved in identifying abuse of any sort, he
opined that it needs to be made clear that volunteers should be
volunteering and this criminal liability should not be added.
6:56:40 PM
REPRESENTATIVE IVY SPOHNHOLZ stated that she does not support
Amendment 2, it introduces a concept into the bill which is not
part of the original bill updating the Division of Juvenile
Justice definitions in statute. This amendment would
essentially eliminate the mandatory reporting requirement passed
in 2015, specifically requiring that volunteers working with
children become mandatory reporters. She advised that this is
part of the Alaska Safe Children's Act which was an important
piece of legislation designed to actually increase safety for
children and make clear to the community that it is essential
that harm and child abuse is reported.
6:57:46 PM
REPRESENTATIVE KREISS-TOMKINS maintained his objection primarily
due to the scope of the bill. He said he was sympathetic to the
notion of being skeptical about putting volunteers in schools
for as little as four hours a week in a position of criminal
liability.
6:58:19 PM
REPRESENTATIVE KOPP commented that this issue was quite a
discussion in 2015, and it was a small meltdown for the
legislature. There was a lively discussion between former
Senator Lesil McGuire, former Senator Fred Dyson, and several
other senators about how to deal with the issue of regular
volunteers in the school versus those who are called to simply
step in for a volleyball practice, for example, and that some
volunteers have never had training in recognizing or reporting
abuse. This compromise came out of the Senate Judiciary
Standing Committee where language was included that "you are a
mandatory reporter if you interact with children in a school for
more than four hours a week." He completely philosophically
agrees that the legislature wants to minimize liability to
volunteers, and he suggested that that could be its own separate
bill.
7:00:06 PM
REPRESENTATIVE EASTMAN commented that CSHB 351 adds a ninth
category of people to the list of mandatory reporters. He
offered concern that this list is growing too long and as a new
category is being added, Amendment 2 would remove one category.
Professionals are added to the mandatory reporting category,
which is entirely appropriate, but volunteers are a different
matter, he said, and they should not be treated with that same
level of criminal liability.
7:00:52 PM
A roll call vote was taken. Representative Eastman voted in
favor of the adoption of Amendment 2. Representatives Reinbold,
Kopp, Stutes, LeDoux, Kreiss-Tomkins, and Claman voted against
it. Therefore, Amendment 2 failed to be adopted by a vote of 1-
6.
7:01:33 PM
REPRESENTATIVE EASTMAN commented that this legislation was the
source of lively discussion in the House Health and Social
Services Standing Committee and while parts of the bill are
beneficial, he will be a no vote on passing CSHB 351 out of
committee.
7:03:05 PM
REPRESENTATIVE KREISS-TOMKINS moved to report CSHB 351 out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 351(HSS) moved out
of the House Judiciary Standing Committee.