04/07/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearings: || Confirmation Hearings: | |
| HB214 | |
| Confirmation Hearings: || Confirmation Hearings: | |
| HB214 | |
| HB282 | |
| HB375 | |
| HB60 | |
| HB282 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | HB 60 | TELECONFERENCED | |
| + | HB 214 | TELECONFERENCED | |
| *+ | HB 381 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 375 | TELECONFERENCED | |
| += | SB 64 | TELECONFERENCED | |
| += | HB 108 | TELECONFERENCED | |
| += | HB 282 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 7, 2014
1:09 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Gabrielle LeDoux
Representative Lance Pruitt
Representative Max Gruenberg
Representative Neal Foster
MEMBERS ABSENT
Representative Charisse Millett
COMMITTEE CALENDAR
CONFIRMATION HEARING(S):
Legislative Ethics Committee
Janie Leask - Anchorage
Christena Williams - Ketchikan
-CONFIRMATION(S) ADVANCED
HOUSE BILL NO. 214
"An Act relating to mental health patient rights, notifications,
and grievance procedures."
- MOVED CSHB 214(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 282
"An Act relating to the rights and obligations of residential
landlords and tenants; and relating to the taking of a permanent
fund dividend for rent and damages owed to a residential
landlord."
- HEARD & HELD
HOUSE BILL NO. 375
"An Act relating to the crime of trespass."
- MOVED CSHB 375(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 60
"An Act adopting and relating to the Uniform Real Property
Transfer on Death Act."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 214
SHORT TITLE: MENTAL HEALTH PATIENT RIGHTS & GRIEVANCES
SPONSOR(s): REPRESENTATIVE(s) HIGGINS, TARR, GATTIS
01/21/14 (H) PREFILE RELEASED 1/10/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) HSS, JUD, FIN
02/18/14 (H) HSS AT 3:00 PM CAPITOL 106
02/18/14 (H) Heard & Held
02/18/14 (H) MINUTE(HSS)
02/25/14 (H) HSS AT 3:00 PM CAPITOL 106
02/25/14 (H) Heard & Held
02/25/14 (H) MINUTE(HSS)
03/11/14 (H) HSS AT 3:00 PM CAPITOL 106
03/11/14 (H) Heard & Held
03/11/14 (H) MINUTE(HSS)
03/14/14 (H) HSS AT 8:00 AM CAPITOL 106
03/14/14 (H) Moved CSHB 214(HSS) Out of Committee
03/14/14 (H) MINUTE(HSS)
03/18/14 (H) HSS RPT CS(HSS) NT 5DP 1NR
03/18/14 (H) DP: SEATON, REINBOLD, NAGEAK, TARR,
HIGGINS
03/18/14 (H) NR: KELLER
04/07/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 282
SHORT TITLE: LANDLORD AND TENANT ACT
SPONSOR(s): REPRESENTATIVE(s) ISAACSON
01/29/14 (H) READ THE FIRST TIME - REFERRALS
01/29/14 (H) L&C, JUD
02/28/14 (H) L&C AT 3:15 PM BARNES 124
02/28/14 (H) Heard & Held
02/28/14 (H) MINUTE(L&C)
03/14/14 (H) L&C AT 3:15 PM BARNES 124
03/14/14 (H) Heard & Held
03/14/14 (H) MINUTE(L&C)
03/17/14 (H) L&C AT 3:15 PM BARNES 124
03/17/14 (H) Moved CSHB 282(L&C) Out of Committee
03/17/14 (H) MINUTE(L&C)
03/19/14 (H) L&C RPT CS(L&C) 1DP 6NR
03/19/14 (H) DP: JOSEPHSON
03/19/14 (H) NR: MILLETT, CHENAULT, HERRON,
REINBOLD, SADDLER, OLSON
03/28/14 (H) JUD AT 1:00 PM CAPITOL 120
03/28/14 (H) Heard & Held
03/28/14 (H) MINUTE(JUD)
04/04/14 (H) JUD AT 1:00 PM CAPITOL 120
04/04/14 (H) Heard & Held
04/04/14 (H) MINUTE(JUD)
04/07/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 375
SHORT TITLE: CRIMINAL TRESPASS ON PRIVATE PROPERTY
SPONSOR(s): FINANCE
03/13/14 (H) READ THE FIRST TIME - REFERRALS
03/13/14 (H) JUD
04/02/14 (H) JUD AT 1:00 PM CAPITOL 120
04/02/14 (H) Heard & Held
04/02/14 (H) MINUTE(JUD)
04/07/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 60
SHORT TITLE: UNIFORM REAL PROPERTY TRANSFERS ON DEATH
SPONSOR(s): GRUENBERG
01/16/13 (H) PREFILE RELEASED 1/11/13
01/16/13 (H) READ THE FIRST TIME - REFERRALS
01/16/13 (H) L&C, JUD
03/21/14 (H) L&C AT 3:15 PM BARNES 124
03/21/14 (H) -- MEETING CANCELED --
03/24/14 (H) L&C AT 3:15 PM BARNES 124
03/24/14 (H) Heard & Held
03/24/14 (H) MINUTE(L&C)
03/28/14 (H) L&C AT 3:15 PM BARNES 124
03/28/14 (H) Moved CSHB 60(L&C) Out of Committee
03/28/14 (H) MINUTE(L&C)
03/31/14 (H) L&C RPT CS(L&C) NT 2DP 3NR
03/31/14 (H) DP: JOSEPHSON, OLSON
03/31/14 (H) NR: CHENAULT, HERRON, JOHNSON
04/07/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JANIE LEASK, Appointee
Legislative Ethics Committee
Anchorage, Alaska
POSITION STATEMENT: Spoke as appointee.
REPRESENTATIVE PETE HIGGINS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 214 as sponsor.
TOM STUDLER, Staff
to Representative Pete Higgins
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 214 on behalf of Representative
Higgins, sponsor.
FAITH MYERS, Psychiatric Patient Advocate Volunteer
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 214.
DORRANCE COLLINS, Psychiatric Patient Advocate Volunteer
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 214.
CHRISTENA WILLIAMS, Appointee
Legislative Ethics Committee
Ketchikan, Alaska
POSITION STATEMENT: Spoke as appointee.
J. FAITH BURKHART, Executive Director
Alaska Mental Health Board
Fairbanks, Alaska
POSITION STATEMENT: Began testimony on HB 214, but due to audio
problems, she said she would submit written comments.
BRENDA HEWITT, Staff
to Senator Doug Isaacson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 282 on behalf of Representative
Isaacson, sponsor.
REPRESENTATIVE DOUG ISAACSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 282 as sponsor.
DARRELL BREESE, Staff
to Representative Bill Stoltze
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 375 on behalf of Representative
Stoltze, sponsor.
BURKE WALDRON, Captain
Alaska Wildlife Troopers
Department of Public Safety
Palmer, Alaska
POSITION STATEMENT: Answered questions regarding HB 375.
AL BARRETTE
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to HB 375.
ANNE CARPENETI, Attorney
Criminal Division
Alaska Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 375.
THOMAS GALLANIS, Professor
University of Iowa Law School
Iowa City, Iowa
POSITION STATEMENT: Presented information regarding HB 60.
BENJAMIN ORZESKE, Legislative Council
Uniform Acts on Real Property, Trusts, and Estates
Uniform Law Commission
Chicago, Illinois
POSITION STATEMENT: Presented information regarding HB 60.
BRANDON CINTULA
Alaska Trust Company
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 60.
MARIE DARLIN
Alaska Commission on Aging
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 60.
REPRESENTATIVE DOUG ISAACSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 282 as sponsor.
BRENDA HEWITT, Staff
to Senator Doug Isaacson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 282 on behalf of Representative
Isaacson, sponsor.
ACTION NARRATIVE
1:09:24 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:09 p.m. Representatives LeDoux, Lynn,
Pruitt, Gruenberg and Keller were present at the call to order.
Representative Foster arrived as the meeting was in progress.
1:11:13 PM
CHAIR KELLER began a discussion of HB 214 but said the committee
needed to hold confirmation hearings because the joint session
is coming up and the conferees are on line.
^CONFIRMATION HEARINGS:
^CONFIRMATION HEARINGS:
CONFIRMATION HEARING(S):
Legislative Ethics Committee
1:11:40 PM
JANIE LEASK, Appointee, Legislative Ethics Committee, said she
lives in Homer, Alaska, and was appointed as an alternate to the
Legislative Ethics Committee last year. Tony Mallott resigned
and so she can be considered as a member, she added. She said
she has the highest regard for the individuals who volunteer to
participate by running for office as citizen legislators. "I
understand the intent of the Legislative Ethics Committee; it
has been very interesting for me to serve," she stated. She
added that she believes she has something to contribute and she
had enjoyed being on the committee.
1:13:15 PM
CHAIR KELLER thanked Ms. Leask and said he is glad she finds it
interesting.
1:13:49 PM
REPRESENTATIVE LYNN made a motion to advance the confirmation of
Janie Leask, appointee to the Legislative Ethics Committee, to
the joint session for consideration. There being no objection,
the confirmation was advanced.
CHAIR KELLER attempted to confirm Christena Williams for the
Legislative Ethics Committee; however, she was apparently not on
line.
HB 214-MENTAL HEALTH PATIENT RIGHTS & GRIEVANCES
1:15:07 PM
CHAIR KELLER announced that the next order of business would be
HOUSE BILL NO. 214, "An Act relating to mental health patient
rights, notifications, and grievance procedures."
REPRESENTATIVE LYNN moved to adopt the proposed committee
substitute (CS) for HB 214, labeled 28-LS0869\Y, Mischel,
4/4/14, as the working document. There being no objection,
Version Y was before the committee.
1:15:44 PM
REPRESENTATIVE PETE HIGGINS, Alaska State Legislature, said HB
214 is a patients' rights bill for the mentally ill. "We want
to give them the rights that everybody else basically should
have when they go into a facility," he explained. "You're going
hear words like [indecipherable] and grievances and procedures
and that's what facilities have now already, and they do have
that. And we're not asking them to create anything more or
anything less beyond that point, but what we are asking them to
do is to forward those grievances onto the administration so we
can take a look at them and make sure they're doing the job."
He said he has worked this bill through and it has been heard
frequently in another committee, and "we've done a great job on
basically trying to address everyone's needs and making sure
we're not doing undue burden on other facilities that may not
participate in overnight stays for patients." He said the bill
basically breaks down the grievances into three categories.
1:17:22 PM
REPRESENTATIVE HIGGINS said the first category includes small
grievances "that don't really affect the state." He gave the
example of "my peas are too cold and my cocoa's too hot," and
other such grievances that the facility can take care of fairly
easily. But the grievances he wants to hear about deal with the
patient's rights, he said, like being denied a patient advocate
or telephone access. Such grievances will be forwarded to the
administration, he said. The third category, he explained,
includes criminal grievances, and they need to be forwarded to
the administration. "We don't want any of that hidden," he
added. This is a bill of transparency; this is letting the
state know that the facilities are doing the right thing, he
stated. He said the facilities are doing the right thing. Some
facilities do not support HB 214, he noted, because they do not
like oversight, and that is a red flag. He is in the health
profession, and when he first started taking Medicaid, people
told him that he would not like the audits. But he said he had
no problem with audits since he was not doing anything wrong.
He added that he is computerized, so audits are easy, and they
help him know where he is doing something wrong so he can do
better. This bill is about basic patient rights and there is
pretty good support, he said.
1:19:13 PM
TOM STUDLER, Staff, to Representative Pete Higgins, Alaska State
Legislature, directed the committee's attention to the sectional
analysis of HB 214. Section 1 adds mental health grievance
appeals to the jurisdiction of the Office of Administrative
Hearings; Section 2 requires the Office of Administrative
Hearings to maintain confidentiality of these records and their
grievance appeals; Section 3 amends AS 47.30.660 by defining and
limiting the powers and the duties of the department on what it
can delegate; and Section 4 adds to the list of rights of a
person undergoing mental health evaluation or treatment,
including involuntary commitments.
1:19:59 PM
MR. STUDLER said the additional rights include the right to file
a grievance; the right to have a designated representative of
their choosing to act as their advocate and to assist in the
filing of a grievance; the right to natural support systems,
including family, friends, and help networks after being in a
locked facility for over three days; and the right to maintain
confidentiality of their records. He said Section 5 establishes
a grievance procedure including a call center, departmental
review, and appeal. It also establishes three categories of
grievances and defines grievance, grievant, and unit, he
explained. Section 6 requires the Department of Health and
Social Services (DHSS) to provide a standardized notice of
patients' rights, assistance, and grievance procedures. He said
Section 7 of HB 214 requires a transition period.
1:20:57 PM
MR. STUDLER said this bill has been much belabored to make
changes for patients' rights and to meet the needs of DHSS. He
expressed his belief that this bill represents a consensus. He
explained how the CS changes the bill. Section 3 was changed
after discussions with the Department of Law and DHSS so that
DHSS can maintain what it needs to do and to delegate those
powers necessary to facilitate a good mental health program in
the state. Section 4 was just renumbered for the CS, he stated,
and the definition of "unit" was added to Section 5. This was
for the benefit of individuals in community health centers or in
centers that do not perform evaluations or have people
committed. "It takes the local community health centers out of
the equation; they're no longer required to participate in this
program," he explained.
1:23:46 PM
MR. STUDLER said Section 7 amends the uncodified law by adding
that the DHSS shall implement these changes as soon as feasible.
He then noted that he failed to explain a change with the 24-
hour call center, which was removed in an earlier version of the
bill and will reduce the fiscal note. Also, defining the term
"unit" will further reduce the fiscal note, he said. He added
that he is hoping to hear from DHSS soon regarding the note.
CHAIR KELLER called for public testimony.
The committee took an at-ease from 1:25 p.m. to 1:26 p.m.
1:26:40 PM
FAITH MYERS, Psychiatric Patient Advocate Volunteer, said she
received psychiatric treatment in 2002 from the state-run Alaska
Psychiatric Institute, the Providence psychiatric emergency
room, and Anchorage Community Mental Health Services. She
stated that she had reasons to file complaints that included
denial of service, physical assault, getting a black eye by
staff, and denial of basic rights. She explained that in all
cases she never received written copies of grievance and appeal
procedures. She could not file an appeal and did not get a
written answer in two cases.
1:28:12 PM
MS. MYERS said the mentally ill come in all shapes and sizes.
As a group they are mistreated [indiscernible]. She urged the
passage of HB 214 so that psychiatric patients get more
equitable and fair patient rights.
CHAIR KELLER thanked her for her volunteer work and her
testimony.
1:29:21 PM
DORRANCE COLLINS, Psychiatric Patient Advocate Volunteer, stated
that he supports HB 214, giving psychiatric patients an absolute
right to file a grievance and to appeal. It will force
psychiatric institutions to improve patient care, he added.
[Inaudible] As of now, psychiatric institutions hold too much
power in a patient's grievance and appeal process. The DHSS
[supports] the Alaska Psychiatric Institute where 97 percent of
its patients arrive involuntarily, and DHSS claims that only 15
patients wanted to file a grievance last year and even less
could file an appeal to resolution, he said. The hospital
treats about 4,000 patients per year, and several thousand are
involuntarily [committed]. Providence Hospital testified to the
HESS Committee that only 10 patients wanted to file a grievance
last year, he stated. [Inaudible]
1:30:39 PM
CHAIR KELLER said the committee is having difficulty hearing Mr.
Collins, and he asked for written comments.
MR. COLLINS said the federal government and the Joint Commission
for accreditation of hospitals have rules that help protect the
patient and the grievance process, "but there is absolutely no
protection for the psychiatric patients and the informal
complaint process." He requested that patients get the right to
file a grievance at the time of their choosing, and "following
the initial evaluation, psychiatric patient rights 4, 5, 7, and
9 can only be temporarily removed if the professional in charge
determines that granting those patients those rights will pose a
threat to the safety and wellbeing of the patient or others."
He said HB 214 should state that the patient advocate shall have
mental health advocacy training and that there will be an
advocate available 24 hours a day, seven days a week.
1:31:35 PM
MR. COLLINS said patients are locked up on Sunday, not just
during the week. They are locked up at midnight, and they need
an advocate available all of the time, he explained. He said HB
214 should add an urgent grievance [process]. Patients are
often in facilities for less than 14 days, and they could be
denied their rights the entire time. He said there should be
some kind of phone line where a patient can call a help center.
He suggested adding clarity to when a patient grievance starts-
"you tell when it ends, but when does the patient grievance
start-when it's dropped in the box or when they call it in?" It
should be in the bill, he opined. Closing the loopholes in HB
214 will determine if patients will actually be able to file a
grievance in a fair way, he concluded.
1:33:43 PM
CHAIR KELLER briefly set aside HB 214 in order to hold a
confirmation hearing.
^CONFIRMATION HEARINGS:
^CONFIRMATION HEARINGS:
CONFIRMATION HEARING(S):
Legislative Ethics Committee
1:35:10 PM
CHRISTENA WILLIAMS, Appointee, Legislative Ethics Committee,
said she believes in public service. She is willing to serve.
She added that she is capable and it is straight forward.
REPRESENTATIVE LYNN made a motion to advance the confirmation of
Christena Williams, appointee to the Legislative Ethics
Committee, to the joint session for consideration. There being
no objection, the confirmation was advanced.
HB 214-MENTAL HEALTH PATIENT RIGHTS & GRIEVANCES
1:36:44 PM
CHAIR KELLER announced that the committee will return to public
testimony for HB 214.
J. FAITH BURKHART, Executive Director, Alaska Mental Health
Board, spoke of the changes made by the sponsor for HB 214,
particularly [the change] ensuring that behavioral health
centers [inaudible].
The committee took an at-ease from 1:38 p.m. to 1:43 p.m.
1:43:55 PM
MS. BURKHART said she will submit her comments in writing.
The committee took an at-ease from 1:44 p.m. to 1:45 p.m.
1:45:25 PM
CHAIR KELLER ended public testimony [audio difficulties].
REPRESENTATIVE LYNN moved to report the CS (Committee
Substitute) to HB 214, labeled 28-LS0869\Y, Mischel, 4/4/14, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
214(JUD) was reported out of the House Judiciary Standing
Committee.
HB 282-LANDLORD AND TENANT ACT
1:46:40 PM
CHAIR KELLER announced that the next order of business would be
HOUSE BILL NO. 282, "An Act relating to the rights and
obligations of residential landlords and tenants; and relating
to the taking of a permanent fund dividend for rent and damages
owed to a residential landlord."
REPRESENTATIVE LYNN moved to adopt the latest version of HB 282.
Hearing no objection, CSHB 282(L&C) was before the committee.
1:48:00 PM
REPRESENTATIVE DOUG ISAACSON, Alaska State Legislature, thanked
the members who worked with him on HB 282. There are recent
changes, he noted.
BRENDA HEWITT, Staff to Senator Doug Isaacson, Alaska State
Legislature, said she has spoken with the members and believes
that there will be a conceptual amendment to remove Section 14,
which deals with domestic violence and an early departure [from
a rental unit]. The issue will be addressed in the new Uniform
Residential Landlord Tenant Act, "and so they'd be willing to
wait a couple years for that to be finished and then bring that
back as a separate item," she said.
CHAIR KELLER said that sounds good; it was a sticking point so
"that will make it a lot easier."
MS. HEWITT said if Section 14 is deleted, "it also means we may
be able to delete [AS 34.03.330(b)(9)]," which is on page 12 and
13, because it will be unnecessary.
1:49:37 PM
REPRESENTATIVE GRUENBERG asked if both of those will be part of
a single amendment and if there is anything else that would go
into that amendment.
CHAIR KELLER asked if this was a written amendment that
Representative Isaacson gave the committee or if it was new.
1:50:24 PM
REPRESENTATIVE ISAACSON answered that the only amendments
[distributed to the committee] he is asking to retain are
Amendments 3 and 5. He said he will offer two more amendments;
one would delete Section 14 and [AS 34.03.330(b)(9)], as noted
by Ms. Hewitt. Additionally, "it has been given to us that we
should retain the word 'uniform' as long as possible, and so the
very first part of this bill, page 1, line 6, through page 4,
line 28, would actually be deleted." He said, "We would be
deleting the deletion of 'uniform' in order to retain 'uniform'
as there is value in the court process until the powers that
govern the uniform tenant ... decree that we're no longer
uniform."
1:51:25 PM
CHAIR KELLER said he will set the bill aside and try to get back
to it later today. The committee needs a list of amendments and
copies for each member, he stated.
CHAIR KELLER announced that HB 282 was set aside. [The bill was
considered later in the same hearing.]
HB 375-CRIMINAL TRESPASS ON PRIVATE PROPERTY
1:52:27 PM
CHAIR KELLER announced that the next order of business would be
HOUSE BILL NO. 375, "An Act relating to the crime of trespass."
1:52:55 PM
DARRELL BREESE, Staff, to Representative Bill Stoltze, Alaska
State Legislature, said [HB 375] repeals two sections in the
definition of criminal trespass in statute that require specific
language and a specific manner in which individuals must post
"no trespassing" signs on their property. He stated that there
have been two recent conflicts in the Matanuska-Susitna Valley,
and one involved trapping on private property and the other
involved the shooting of a pet turkey. In both cases there were
"no trespassing" signs posted, he noted, but the signs were not
posted as described in statute. By repealing the definitions,
the burden shifts from a big specific set of guidelines for
posting signs to a narrow definition, making it simpler for
property owners to declare no trespassing when they wish.
REPRESENTATIVE LEDOUX said she had a question for Anne Carpeneti
[Alaska Department of Law] about the pet turkey situation.
CHAIR KELLER said Captain Burke Waldron [from the Alaska
Wildlife Troopers] is here to answer questions.
REPRESENTATIVE LEDOUX asked if there was a violation of law
[when the turkey was shot] that the troopers decided not to
prosecute. "When you drive up on somebody's driveway and shoot
something on their lawn," it would seem to violate something,
she stated.
1:55:25 PM
BURKE WALDRON, Captain, Alaska Wildlife Troopers, Department of
Public Safety, said his office provided a written response to
the committee. There was no criminal trespass committed with
the turkey incident because the turkey was shot on the person's
driveway on the edge of the roadway, "and there were some
significant issues in establishing whether the turkey was a
feral game bird or a domestic pet," which may pertain to either
a hunting violation or criminal mischief, he offered. The
trooper [at the scene] exercised discretion, he said, and
advised both parties of potential civil remedies.
1:56:25 PM
CHAIR KELLER said there will be public testimony.
REPRESENTATIVE GRUENBERG said he is slightly confused by the
email from the troopers. He said that particular incident may
not be a good example of anything because no law was broken.
The question is about repealing subsections (b) and (c) in the
criminal trespass law, and that will require anyone who goes for
a walk in woods to do a title search of every place they go.
That may be easy to do in New York City, he surmised, but it
will be difficult in some areas of Alaska. He said that he
imagines it will be hard to determine if someone is trespassing,
"and I think the purpose of this law that is on the books is to
put the average person on notice that they are on somebody
else's land, and I don't see how the average person is going to
know that unless there is at least something posted."
1:59:10 PM
MR. BREESE said Representative Gruenberg is partially correct.
There is implied consent to use a trail crossing someone's
property, just as there is implied consent for someone accessing
a driving, roadway, or river that crosses a property. "So for
that intent and purposes, I think, you're not looking at the
opportunity to prosecute in those instances if you're just
merely hiking across and walking across someone's property. I
don't know that it elevates to the standards that are set forth
in the descriptions of first degree and second degree criminal
trespass," he said. He noted that the bill is just removing the
requirement for a clear sign at every point of access.
2:00:27 PM
MR. BREESE stated that in both incidences there were [no] "no
trespassing" signs posted, so according to current statute,
there was no law broken. The law is flawed because there is no
potential for trespassing if someone does not post a sign as
specifically spelled out in statute, at every access point, that
is 144 square inches and contains the name and address of the
property owner and what is prohibited. The signs must be in
exactly the manner specified in statute, and that is too much of
a burden to place on landowners, he opined.
MR. BREESE said, "We're not saying you don't have to put a sign
up, we're just saying that we're going to take out the specifics
of the very specific language that describes how signs must be
posted." What is required in statute is a bit of a burden to
place on someone to have at every access point, he opined.
2:01:45 PM
REPRESENTATIVE GRUENBERG said, "I see where you're going."
The [signage] language is really detailed, and somebody
obviously wanted to be sure that the sign was readable, "but I
can see that a person who owns a homestead or something out in
the middle of nowhere wouldn't know what's in this obscure law
and wouldn't do it." Maybe some new language can require
"reasonable notice," he offered. It can give the landowner the
ability to put "something up somewhere that would provide some
notice," he said, and it could be a general statement to post a
sign. That would make it easy for the landowner, while
providing protection for the person who is crossing the property
without becoming criminals, he stated.
2:03:18 PM
REPRESENTATIVE LEDOUX asked about language that would create a
different standard for hikers than for trappers or hunters. If
a person is hunting, or doing something substantive like that,
the person should know whether or not it is private property.
But for those just wondering in the woods, on a trail or not, it
seems quite a burden to carry around maps.
2:04:33 PM
CHAIR KELLER noted that he was initially uneasy with the
language in HB 375, but he was satisfied because it deals with
Alaska, which is so unique because of the large land area and
the difficulty knowing where there is private land. The answer
is to get a very specific sign there that is so detailed and so
crazy that it obviously does not do any good. Then he read what
was not deleted from the law, and that is [subsection] (a),
which talks about land that is not open to the public. "And I
think that's sufficiently broad that it would allow for signs,
so if I had a piece of property and I didn't want it open to the
public and I posted it, I would like to think that the rational
trooper that came along would take that as land that is not open
to the public."
2:06:02 PM
MR. BREESE expressed his belief that the committee needs to look
at the definitions for criminal trespass in the first and second
degree, AS 11.46.320 and AS 11.46.330. Criminal trespass in the
first degree requires the intent to commit a crime, and criminal
trespass in the second degree requires a person to enter or
remain unlawfully. "I think when you get at the point of
someone just walking across a property and you don't want them
there and you say 'hey, it's my property, can you leave,' and
the person then refuses to leave, I think that elevates it to
the charge of second degree. I think until that point, we're
automatically elevating things to the point where it's a second
degree charge. I think-my opinion is-a judge would evaluate
that and say, you know, if you asked the person to leave and the
person didn't leave and remained on the property, then the
person is then willfully breaking the law and is committing
trespass at that point." He added that attorneys may be able to
address this issue.
2:07:18 PM
CHAIR KELLER suggested taking testimony.
AL BARRETTE, said he opposed HB 375 and he is hearing people
talk about what is rational and reasonable, which are arbitrary
terms. Law is black and white, he stated. There is no cell
phone coverage in the Interior from 10 miles north of Fairbanks,
and GPS devices tell you where you are but not land status, he
added. He said there are RS4277 right-of-ways that are not
surveyed, so the location of the easements are unknown, and
there are waterways with many recreational sites along different
rivers. He stated that he is pro-property rights, and if he
does not want someone on his property he will put up minimum
posting so others will know. It is easy for those who live in a
municipality or a borough to find out property boundaries, but
it is difficult elsewhere. There are new Native lands on the
books and that information will not yet be on any public maps,
he added. He urged the committee to make a clear amendment
without relying on the rationality of people. Reasonable
signage would be appropriate, he stated.
2:10:02 PM
REPRESENTATIVE GRUENBERG said he appreciates what Mr. Barrette
said. He noted that he does not hike or hunt much, but he likes
to be out and many people do. He does not want to criminalize
people for fishing, hiking, or camping, as long as they are not
doing any harm.
REPRESENTATIVE LEDOUX asked about someone hiking on private
property that is not posted, and if the Department of Law would
view that as a prosecutable offense if HB 375 were passed.
ANNE CARPENETI, Attorney, Criminal Division, Alaska Department
of Law (DOL), said that would technically be a violation, but
"we would exercise our discretion under the circumstances."
2:12:19 PM
REPRESENTATIVE LEDOUX asked if the person would be violating the
law of criminal trespass, and then "it would totally be up to
you" on whether to prosecute.
MS. CARPENETI said yes.
REPRESENTATIVE GRUENBERG said there are those who want to be
able to cross land and camp, fish, or hunt, for example. There
is the private owner who wants to preserve land and not have
everybody run around on it. He asked if Ms. Carpeneti had any
suggestions. Subsection (c) looks very technical, and somebody
could say he or she did not trespass because the sign was only
11 by 11 inches instead of the required 12 by 12 inches.
2:13:39 PM
MS. CARPENETI said the DOL does not have a position on this
bill, but she noted that the other body amended a similar bill
to repeal subsection (c) and leave subsection (b) in place.
That would require an owner to either personally notify the
hiker, for example, or to post notice in a reasonably
conspicuous manner under the circumstances, she explained. That
would leave it to be a question of fact whether the posting was
reasonably conspicuous and not have the specific requirements at
every entrance. She noted that that was the issue with the
illegal trappers as one entrance was not posted.
CHAIR KELLER said he considered that idea, but as he looked at
subsection (a), "it looked like it is mostly covered, and it
looks like (b) becomes, at least somewhat, redundant. It just
seemed like so many words, and so that's when I went over the
edge and thought this isn't a bad bill after all."
2:15:33 PM
MS. CARPENETI said subsection (a)(1) is one of the three ways a
person can enter or remain on property unlawfully, "and that is
enter on premises which are not open to public, but it doesn't
require any notice that it's open to the public or not." She
said that is why (b) would not be redundant to (a)(1).
CHAIR KELLER said that the fact that there is a notice would
imply that it is not open to the public. It leaves the option
for the landowner to post a sign, and then it would not be open
to the public, he added.
MS. CARPENETI said he is correct that a person could put up a
sign, but (a)(1) defines "enter or remain unlawfully", which is
talking about entering or remaining unlawfully on property that
is not open to the public but not necessarily posted in any way.
2:16:44 PM
REPRESENTATIVE GRUENBERG added that he thinks (b) is very
helpful, because notice could be personally communicated, and
then a sign is unnecessary. Also, including (b) gives some
direction and will make sure that, if possible, people do put up
some kind of a little sign.
MR. BREESE said that (a)(1) was mentioned, but (a)(2) needs to
be looked at as well if it is to remain in statute. He stated
that (a) defines "enters or remains unlawfully", and it says:
fails to leave the premises of a propelled vehicle or property
that is open to the public after lawfully being directed to do
so. Therefore, if a person can access property without a fence
or something to stop the person, "it seems to be publically
open," he stated. Unless someone is told to leave ... "I think
it's covered in both (a)(1) and (a)(2).
2:18:12 PM
REPRESENTATIVE GRUENBERG said that (a)(1) gets at the question
of whether someone is lawfully directed to leave, and if someone
tells a person to leave, that is one thing. It also covers a
situation where a person did not get any personal direction, but
the property is not open to the public, and (b) describes what
is meant by being open to the public. Even if it is not fenced,
a person can be told in advance [not to enter the property], or
if there is a sign, a person might not be directed to leave
after being on the property, but it shows that it is not open to
the public. He suggested leaving (b) in and just repealing (c).
2:19:49 PM
CHAIR KELLER closed public testimony.
REPRESENTATIVE GRUENBERG asked if the sponsor would accept an
amendment to retain subsection (b).
MR. BREESE said, "If that's the will of the committee."
REPRESENTATIVE GRUENBERG moved to offer Conceptual Amendment 1
as follows: AS 11.46.350(c) is repealed.
2:20:46 PM
CHAIR KELLER objected and said, "I think that (a) covers it. It
is very general and it's very broad. I understand that, but
that's the nature of our land in Alaska. It is very difficult
to know where you're at and what's going on. So I think it's
sufficient."
REPRESENTATIVE LEDOUX said she is uncomfortable with it the way
HB 375 reads now, because it makes a criminal out of someone who
is just trying to take a hike. She realizes that Ms. Carpeneti
said hopefully DOL would use its discretion and there would not
be too many prosecutions, but she is still uncomfortable. She
said she feels better with Representative Gruenberg's amendment.
CHAIR KELLER removed his objection [to Conceptual Amendment 1]
and said he would let the sponsor fix it. There being no
further objections, Conceptual Amendment 1 was adopted.
2:22:55 PM
CHAIR KELLER clarified the amendment.
REPRESENTATIVE GRUENBERG said that [subsection](c) is repealed.
2:23:08 PM
REPRESENTATIVE LYNN moved to report HB 375, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 375(JUD) passed
out of the House Judiciary Standing Committee.
HB 60-UNIFORM REAL PROPERTY TRANSFERS ON DEATH
2:23:39 PM
CHAIR KELLER announced that the next order of business would be
HOUSE BILL NO. 60. "An Act adopting and relating to the Uniform
Real Property Transfer on Death Act."
REPRESENTATIVE GRUENBERG said he is one of the sponsors of HB
60, and he has a committee substitute.
REPRESENTATIVE GRUENBERG moved to adopt the proposed committee
substitute (CS) for HB 60, labeled 28-LS0265\Y, Bannister,
4/6/14, as the working document.
2:25:09 PM
CHAIR KELLER objected.
REPRESENTATIVE GRUENBERG said there are two people from out of
state on the phone line. One, Thomas Gallanis, is the reporter
for the uniform act and is a law professor at the University of
Iowa Law School. The reporter is the person who puts the
[uniform] act together, he explained.
2:26:17 PM
THOMAS GALLANIS, Professor, University of Iowa Law School, said
he was the reporter for the Uniform Property Transfer on Death
Act. He said he does not have prepared remarks; however, he
fully associates himself with the written testimony, which was
submitted on March 21 to the Labor and Commerce Committee by Ben
Orzeske of the Uniform Law Commission. He was told that the
written testimony has been made available to the Judiciary
Committee, and he would be happy to answer any questions.
2:27:06 PM
REPRESENTATIVE GRUENBERG said nobody on this committee sits on
the Labor and Commerce Committee, and he asked if Mr. Gallanis
could briefly describe the problem that the uniform act
addresses and how it addresses it, then the committee will know
what he has done and why HB 60 is important.
MR. GALLANIS said that over that last few decades there has been
growth in the "non-probate revolution," which is the ability of
people to easily and thriftily transfer their property to named
beneficiaries outside of the probate process. The non-probate
revolution has historically focused on personal property. For
example, bank accounts now have a pay-on-death feature, and
there are securities registered in transfer-on-death (TOD) form.
Those are non-probate transfers, he stated. Citizens across the
country routinely take advantage of this trend to pass money and
personal property to a named beneficiary outside of probate.
The Uniform Real Property Transfer on Death Act would allow
Alaska residents to similarly transfer real property to a named
beneficiary at the time of the owner's death. This idea of a
transfer-on-death deed has been around for some time, he said,
and Missouri, in 1989, became the first state to allow such
deeds.
2:29:16 PM
MR. GALLANIS said five states allowed it by 2002, and the
Uniform Law Commission then began to study the issue. The Real
Property Transfer on Death Act was completed by the commission
in 2009, and 23 states now have the uniform act or similar
legislation.
2:30:03 PM
REPRESENTATIVE GRUENBERG asked if the latest state to pass
legislation is South Dakota, and that three other states,
including Alaska, are considering the issue.
MR. GALLANIS said that the two states recently considering the
legislation, Washington and West Virginia, have enacted it. In
response to Representative Gruenberg, he explained the process
in that a person owning property would execute a deed, and the
deed would comply with all of the standard requirements for a
legally reportable deed, but the deed would name a beneficiary
who would not have any interest in the property until the owner
died. The deed will operate analogously to a will or a pay-on-
death bank account. The deed, in effect, lies dormant while the
owner is alive, but it operates efficiently and outside of
probate at the owner's death to transfer the property to the
beneficiary.
2:32:20 PM
REPRESENTATIVE GRUENBERG noted that page 3 [of the bill] says
that the deed must state that it occurs at the person's death,
and it identifies the person specifically. He asked, "What do
you do with the deed and how does it operate?"
MR. GALLANIS said the deed is recorded, but unlike a standard
inter-vivos deed, which operates to transfer ownership during
the owner's lifetime, this transfer operates at death.
2:33:10 PM
REPRESENTATIVE GRUENBERG asked if a person can revoke or
renounce the deed.
MR. GALLANIS said absolutely. These transfer-on-death deeds,
like pay-on-death designations for a bank account, have the two
principle features of wills: they are both fully revocable
during the owner's life and they are ambulatory. The uniform
act lays out multiple ways in which the deed can be revoked, and
one way is to record a subsequent deed, which will revoke the
prior deed, and another way is to file an instrument of
revocation. If the owner sells the property to another person,
that revokes the transfer-on-death deed.
2:35:05 PM
REPRESENTATIVE GRUENBERG asked about a non-recorded will that
will not be effective.
MR. GALLANIS said, "We very much want information about the
property to be in the chain of title, and therefore simply
executing a will that sends 123 Main Street to a different
beneficiary does not operate to revoke the transfer-on-death
deed."
2:35:56 PM
REPRESENTATIVE GRUENBERG said the key is that it must be
recorded, so anyone can look quickly and see if the deed is
still valid.
MR. GALLANIS agreed. He added that during the drafting of the
uniform act, there was significant help from the estate planning
and real property sections of the bar and from a title insurance
and banking representative. "They really helped us think
through all of the issues to make sure that there would not be
[indecipherable] on title," he said.
CHAIR KELLER said that the committee is not going to move the
bill today, and it will be set aside at 2:45.
MR. GALLANIS responded to a question and said that in the
uniform act there is both a suggested form for the transfer-on-
death deed and a suggested form for the instrument of
revocation. He noted that he has not looked at the Alaska
version of the bill to know what forms are included.
2:37:50 PM
CHAIR KELLER said both forms are in the latest version of the
bill. He asked what happens when someone is acting on behalf of
an owner and what complications are there when someone has the
power of attorney.
2:39:15 PM
BENJAMIN ORZESKE, Legislative Council, Uniform Acts on Real
Property, Trusts, and Estates, Uniform Law Commission, said the
act requires the owners of the property to act personally, and
they must have the capacity to act for themselves. If a person
does not have the capacity to execute a will, that person cannot
execute a transfer-on-death deed, he explained, and the deed
must be recorded in public lands records before the owner's
death, he added. Unless a power-of-attorney specifically says
that it allows the agent to act on behalf of the principal to
change beneficiary designations or to dispose of a specific
parcel of real property, under most power-of-attorney statutes
the agent would not be permitted to execute one of these deeds
on behalf of the principal who granted that authority.
2:41:36 PM
REPRESENTATIVE GRUENBERG said the bill addresses that on page 4:
If a recorded power-of-attorney or the transfer-on-
death deed expressly grants a designated agent of the
transfer or the power to revoke a transfer-on-death
deed, the designated agent may revoke the transfer-on-
death deed as provided in this section.
2:42:55 PM
BRANDON CINTULA, Alaska Trust Company, said he supports HB 60
for all Alaskans.
[Testimony was cut off due to audio problems.]
2:44:33 PM
MARIE DARLIN, Alaska Commission on Aging, said the Alaska
Commission on Aging has supported this legislation from the very
beginning. She noted her written testimony that contains
additional information. The bill takes care of a lot of
problems, she stated, and the Alaska Commission on Aging fully
supports the bill and has tried to work with those involved.
She added that AARP has been involved as well, and this is
something that has been needed for a long time.
2:47:06 PM
CHAIR KELLER set HB 60 aside.
HB 282-LANDLORD AND TENANT ACT
2:47:46 PM
CHAIR KELLER announced that the next order of business would be
HOUSE BILL NO. 282, "An Act relating to the rights and
obligations of residential landlords and tenants; and relating
to the taking of a permanent fund dividend for rent and damages
owed to a residential landlord." [HB 282 was also heard earlier
in this hearing.]
The committee took an at-ease from 2:47 p.m. to 2:50 p.m.
2:50:18 PM
CHAIR KELLER announced what the committee will cover on
Wednesday.
2:50:54 PM
REPRESENTATIVE DOUG ISAACSON, Alaska State Legislature, said he
has provided an amendment analysis for version P of HB 282. Of
the eight amendments here, he stated, he is asking that the
committee not move Amendment 1. He noted that Amendment 2 was
previously deleted, and he would like Amendment 3 to be offered.
He said he does not want the committee to adopt Amendment 4 or
5, and he would like Amendments 6 and 7 and Conceptual Amendment
8 to be offered. He spoke of what he called Amendment 3.
2:52:04 PM
CHAIR KELLER clarified that he was speaking of the amendment
labeled P.3, which will be Amendment 1.
UNIDENTIFIED SPEAKER moved to adopt Amendment 1, [labeled 28-
LS0930\P.3, Bullock, 3/25/14] as follows [original punctuation
provided]:
Page 10, line 1:
Delete "or"
Insert ", by a"
Page 10, line 2, following "premises":
Insert ", or the rental agreement"
2:52:30 PM
CHAIR KELLER objected.
REPRESENTATIVE ISAACSON said in absence of a local law
restricting the number of people in a dwelling, the language in
Amendment 1 allows the landlord to set the number of occupants
in the rental agreement.
REPRESENTATIVE LEDOUX asked if that was not allowed previously.
BRENDA HEWITT, Staff, to Senator Doug Isaacson, Alaska State
Legislature, said it is her understanding that landlords are not
able to make those restrictions.
2:53:33 PM
CHAIR KELLER removed his objection. There being no further
objections, Amendment 1 was adopted.
REPRESENTATIVE PRUITT moved to adopt Amendment 2, [labeled 28-
LS0930\P.6, Bullock, 4/7/14], as follows [original punctuation
provided]:
Page 10, line 10, through page 11, line 5:
Delete all material.
Renumber the following bill sections accordingly.
Page 13, line 30:
Delete "Sections 4 - 16"
Insert "Sections 4 - 15"
2:54:39 PM
CHAIR KELLER objected.
REPRESENTATIVE ISAACSON said the Uniform Residential Landlord
Tenant Act pending in Congress is "vetting a lot of this issue.
It was suggested that we remove this section until those have
been covered on the federal side just for the best clarity.
This subject has a lot of tentacles to it and all the parties
are willing to wait until it's finalized and bring it back as
its own bill later."
2:54:46 PM
CHAIR KELLER clarified that Amendment 2 deletes Section 14,
pages 10-11 from HB 282. He removed his objection. There being
no further objections, Amendment 2 was adopted.
2:54:54 PM
REPRESENTATIVE PRUITT moved Amendment 3, labeled 28-LS0930\P.7,
Bullock, 4/7/14, as follows [original punctuation provided]:
Page 12, lines 15 - 16:
Delete "in this paragraph, "transient occupancy"
means the presence or stay of an individual for less
than 30 consecutive days;"
Page 12, line 28, through page 13, line 1:
Delete ";
(9) occupancy by an individual who is a
victim of trauma from a sexual assault or domestic
violence and who is receiving housing assistance from
a victim counseling center; in this paragraph, "victim
counseling center" has the meaning given in
AS 18.66.250"
CHAIR KELLER objected.
REPRESENTATIVE ISAACSON said there were issues with transient
occupancy. It will be dealt with separately, he noted. With
Amendment 5 "we're also noting that [paragraph] 9, as noted on
the page, is also no longer necessary, so we're deleting that
section."
2:55:57 PM
CHAIR KELLER clarified that Amendment 5 deletes page 12, lines
15 and 16.
REPRESENTATIVE ISAACSON noted that line 28 on page 12 will also
be deleted.
REPRESENTATIVE GRUENBERG expressed his belief that the cleaner
way of accomplishing that is to strike Section 16 from the bill,
"because that is all that 16 does."
2:56:42 PM
REPRESENTATIVE PRUITT withdrew his [motion].
2:57:06 PM
REPRESENTATIVE GRUENBERG offered Conceptual Amendment 4 to
strike Section 16 on pages 12-13.
2:57:21 PM
REPRESENTATIVE ISAACSON asked about the amendment.
REPRESENTATIVE GRUENBERG said it is crystal clear that the
current law will remain: AS 34.03.330(b) is totally unchanged,
the regular text remains, and none of the new language goes in.
2:58:23 PM
CHAIR KELLER clarified that Conceptual Amendment 4 deletes page
12, line 3, through page 13, line 1, which is the entirety of
Section 16.
REPRESENTATIVE PRUITT said this approach is cleaner.
There being no objection, Conceptual Amendment 4 was adopted.
2:59:15 PM
REPRESENTATIVE ISAACSON said his next amendment retains the word
"uniform" on page 1, line 6; page 4, line 28; and page 13, line
3, "so it basically deletes several sections that we were
originally removing the word 'uniform', now it has been advised
that we retain it for purposes of benefit to the residents of
the state."
2:59:55 PM
REPRESENTATIVE GRUENBERG said he asked Representative Isaacson
to leave the title unchanged in AS 34.03.330 because unless the
commissioners on uniform state law say the state is no longer
uniform, "we should be uniform; it's a great benefit." The
decisions from other states have persuasive and precedential
value, he said. Additionally, the commissioners will be able to
look at the final product, because it is unknown what might be
done on the floor and by the Senate, and it is premature to do
that now, he explained.
CHAIR KELLER said Representative Gruenberg is talking about
Conceptual Amendment 5. He asked him to make his motion.
3:01:20 PM
REPRESENTATIVE GRUENBERG moved to delete Section 17 of HB 282
and retain the term "Uniform Residential Landlord and Tenant
Act," or anything like that where ever it appears. "So the law
would remain unchanged, but we basically take out Section 17 and
conform the rest of the bill so that we still refer to the
uniform act."
3:01:53 PM
REPRESENTATIVE ISAACSON said he believes what is really being
offered is removing "uniform" in Sections 1, 2, and 3. By just
deleting Sections 1, 2, 3, and 17, that would be accomplished,
he said.
REPRESENTATIVE GRUENBERG agreed and moved to delete Section 1,
pages 1-3; Section 2, pages 3-4; Section 3, page 4; and Section
17, page 13 from HB 282.
CHAIR KELLER objected. That is Amendment 5, and it is to delete
Sections 1-3 and Section 17 from the bill. He removed his
objection and there being no further objections, Conceptual
Amendment 5 was adopted.
3:04:34 PM
REPRESENTATIVE GRUENBERG said that somebody handed out some
definitions [of terms contained in HB 282].
REPRESENTATIVE ISAACSON said the bill still has the pet deposit;
the definition of normal wear and tear; the requirement that
landlords maintain a separate accounting of security funds; the
confirmation of premise condition; the allowance of dry cabins;
the allowance of landlords to restrict the number of persons in
a dwelling; the allowance for landlords to evict tenants for
illegal activities; and the allowance for landlords to attach
the Alaska Permanent Fund dividend for unpaid rent or damages.
Therefore, he said, HB 282 still "does extensive work that will
help both the tenant and the landlord have safe and affordable
housing."
3:05:58 PM
CHAIR KELLER said he will get a CS to the committee as soon as
it is available. He set HB 282 aside.
REPRESENTATIVE GRUENBERG said he thinks it is a good bill.
REPRESENTATIVE LYNN said he is ready to buy income property or
to [become a renter] once this bill passes.
3:06:58 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:06 P.M.