04/07/2010 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB303 | |
| HB386 | |
| SB222 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 222 | TELECONFERENCED | |
| + | SB 303 | TELECONFERENCED | |
| + | HB 386 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 292 | ||
| = | SB 249 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 7, 2010
8:34 a.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Lesil McGuire
Senator John Coghill
MEMBERS ABSENT
Senator Dennis Egan
COMMITTEE CALENDAR
SENATE BILL NO. 303
"An Act relating to a subcontractor's, contractor's, and project
owner's liability for workers' compensation, to sole proprietors
and partnerships without employees, and to managers or managing
members of limited liability companies, and excluding certain
persons from liability for securing the payment of workers'
compensation benefits to employees; and providing for an
effective date."
- MOVED CSSB 303(JUD) OUT OF COMMITTEE
SENATE BILL NO. 222
"An Act relating to the crimes of harassment, possession of
child pornography, and distribution of indecent material to a
minor; relating to suspending imposition of sentence and
conditions of probation or parole for certain sex offenses;
relating to aggravating factors in sentencing; relating to
registration as a sex offender or child kidnapper; amending Rule
16, Alaska Rules of Criminal Procedure; and providing for an
effective date."
- MOVED CSSB 222(JUD) OUT OF COMMITTEE
SENATE BILL NO. 249
"An Act relating to official action by electronic transmission,
to records, and to public records."
- HEARD AND HELD 4/5/10 meeting
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 386(FIN)
"An Act establishing a uniform format and procedure for
citations for certain violations of state law; relating to the
form, issuance, and disposition of citations for certain
violations; relating to certain crimes and penalties for
noncompliance with citations; and providing for an effective
date."
- HEARD AND HELD
SENATE BILL NO. 292
"An Act relating to the registration and operation of
pawnbrokers and to the exemption for pawnbrokers under the
Alaska Small Loans Act; and providing for an effective date."
- MOVED SB 292(JUD) OUT OF COMMITTEE 4/5/10 meeting
PREVIOUS COMMITTEE ACTION
BILL: SB 303
SHORT TITLE: WORKERS' COMPENSATION AND CONTRACTORS
SPONSOR(s): LABOR & COMMERCE
03/08/10 (S) READ THE FIRST TIME - REFERRALS
03/08/10 (S) L&C, JUD
03/25/10 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/25/10 (S) Heard & Held
03/25/10 (S) MINUTE(L&C)
04/01/10 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
04/01/10 (S) Moved SB 303 Out of Committee
04/01/10 (S) MINUTE(L&C)
04/02/10 (S) L&C RPT 3DP 1NR
04/02/10 (S) DP: PASKVAN, DAVIS, THOMAS
04/02/10 (S) NR: MEYER
04/05/10 (S) JUD AT 11:00 AM BUTROVICH 205
04/05/10 (S) CITATIONS
04/07/10 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: SB 222
SHORT TITLE: SEX OFFENSES; OFFENDER REGIS.; SENTENCING
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/19/10 (S) READ THE FIRST TIME - REFERRALS
01/19/10 (S) JUD, FIN
01/25/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
01/25/10 (S) Heard & Held
01/25/10 (S) MINUTE(JUD)
02/15/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/15/10 (S) Heard & Held
02/15/10 (S) MINUTE(JUD)
04/05/10 (S) JUD AT 11:00 AM BUTROVICH 205
04/05/10 (S) WORKERS' COMPENSATION AND CONTRACTORS
04/07/10 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: SB 249
SHORT TITLE: PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS
SPONSOR(s): ELLIS
02/01/10 (S) READ THE FIRST TIME - REFERRALS
02/01/10 (S) STA, JUD
03/23/10 (S) STA RPT 5DP
03/23/10 (S) DP: MENARD, FRENCH, MEYER, PASKVAN,
KOOKESH
03/23/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
03/23/10 (S) Moved SB 249 Out of Committee
03/23/10 (S) MINUTE(STA)
03/31/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/31/10 (S) Heard & Held
03/31/10 (S) MINUTE(JUD)
04/02/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/02/10 (S) Heard & Held
04/02/10 (S) MINUTE(JUD)
BILL: HB 386
SHORT TITLE: CITATIONS
SPONSOR(s): HAWKER
02/23/10 (H) READ THE FIRST TIME - REFERRALS
02/23/10 (H) JUD, FIN
03/17/10 (H) JUD AT 1:00 PM CAPITOL 120
03/17/10 (H) Moved CSHB 386(JUD) Out of Committee
03/17/10 (H) MINUTE(JUD)
03/19/10 (H) JUD RPT CS(JUD) 1DP 6NR
03/19/10 (H) DP: GRUENBERG
03/19/10 (H) NR: LYNN, HERRON, DAHLSTROM, HOLMES,
GATTO, RAMRAS
03/29/10 (H) FIN AT 1:30 PM HOUSE FINANCE 519
03/29/10 (H) Moved CSHB 386(FIN) Out of Committee
03/29/10 (H) MINUTE(FIN)
03/30/10 (H) FIN RPT CS(FIN) 9DP 1NR
03/30/10 (H) DP: FAIRCLOUGH, N.FOSTER, THOMAS, GARA,
DOOGAN, JOULE, KELLY, STOLTZE, HAWKER
03/30/10 (H) NR: SALMON
03/31/10 (H) TRANSMITTED TO (S)
03/31/10 (H) VERSION: CSHB 386(FIN)
04/01/10 (S) READ THE FIRST TIME - REFERRALS
04/01/10 (S) JUD
04/05/10 (S) JUD AT 11:00 AM BUTROVICH 205
04/05/10 (S) Bills Previously Heard/Scheduled
04/07/10 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: SB 292
SHORT TITLE: PAWNBROKERS
SPONSOR(s): SENATOR(s) HUGGINS
02/24/10 (S) READ THE FIRST TIME - REFERRALS
02/24/10 (S) L&C, JUD
03/18/10 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/18/10 (S) Moved CSSB 292(L&C) Out of Committee
03/18/10 (S) MINUTE(L&C)
03/22/10 (S) L&C RPT CS 3DP NEW TITLE
03/22/10 (S) DP: PASKVAN, DAVIS, BUNDE
03/22/10 (S) FIN REFERRAL ADDED AFTER JUD
03/29/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/29/10 (S) Heard & Held
03/29/10 (S) MINUTE(JUD)
04/02/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/02/10 (S) Heard & Held
04/02/10 (S) MINUTE(JUD)
04/06/10 (S) JUD RPT CS 2DP 1NR NEW TITLE
04/06/10 (S) DP: FRENCH, WIELECHOWSKI
04/06/10 (S) NR: COGHILL
04/07/10 (S) JUD AT 8:30 AM BUTROVICH 205
WITNESS REGISTER
SENATOR JOE PASKVAN
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of SB 303.
REPRESENTATIVE MIKE HAWKER
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of HB 386.
JULIE LUCKY, staff
to Representative Hawker
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Explained provisions in HB 386.
KAT PETERSON, Lieutenant
Division of Alaska State Troopers
Department of Public Safety
POSITION STATEMENT: Provided information related to HB 386.
DAVID MR. BROWER, Assistant Attorney General
Criminal Division
Department of Law
POSITION STATEMENT: Provided supporting information related to
HB 386 as a drafting attorney.
SUSAN MCLEAN, Director
Criminal Division
Department of Law
Anchorage, AK
POSITION STATEMENT: Provided information related to SB 222.
DEREK DEGRAAF, Sergeant
Alaska State Troopers
Department of Public Safety
POSITION STATEMENT: Testified in support of SB 222 as currently
amended.
ACTION NARRATIVE
8:34:35 AM
CHAIR HOLLIS FRENCH reconvened the 4/5/10 Senate Judiciary
Standing Committee meeting at 8:34 a.m. on 4/7/10. Present at
the call to order were Senators Coghill, Wielechowski, McGuire
and French.
SB 303-WORKERS' COMPENSATION AND CONTRACTORS
8:35:01 AM
CHAIR FRENCH announced the consideration of SB 303 and noted
that there was a committee substitute (CS) for the committee to
consider. Public testimony was taken and closed at the previous
hearing.
Senator McGuire joined the committee.
SENATOR WIELECHOWSKI moved to adopt the work draft CS for SB
303, labeled 26-LS1089\S, as the working document. There being
no objection, version S was before the committee.
SENATOR JOE PASKVAN recapped that SB 303 is designed to restore
the structure of the workers' compensation statutes to the
policy that was intended at statehood, which is that "if you
break it you pay for it." That policy worked well until 2004
when it was changed to give immunity to project owners, general
contractors, or others who, even with criminal negligence,
injured or killed an employee of the subcontractor. "I would
submit that that's bad public policy," he stated.
SENATOR PASKVAN related that Sections 1, 2, and 4 contain
changes that would re-implement the previous, more protective
law. Section 3 adds new subsections [AS 23.30.045(g) and (h)].
Subsection (g) says that a subcontractor who is hired as an
independent contractor by the contractor and who has no
employees during the term of the contract is liable for and
shall secure the payment of compensation under the workers'
compensation statute and shall produce a certificate of workers'
compensation insurance coverage for the project. Subsection (h)
says that if a subcontractor fails to do that and it results in
a premium that is billed to the contractor. The subcontractor is
liable for that additional premium plus any associated
penalties. This is good social policy in the workers'
compensation context, he said.
8:37:58 AM
SENATOR WIELECHOWSKI moved to report CS for SB 303, version S,
from committee with individual recommendations and attached
fiscal note(s).
SENATOR COGHILL objected to make an observation. He said he's
beginning to understand the need for this bill, but he wants to
talk to the sponsor about the requirement for an individual
subcontractor to buy the insurance because it looks like it's an
economic levelizer rather than a compensation problem.
He related that what appealed initially was the fairness
standard and the idea that if you break it you should fix it.
His understanding is that now the owner of a project is subject
to the workers' compensation laws, which is not sufficient in
some circumstances. This bill makes the owner liable, but it
leaves the main contractor under workers' compensation and
without having to bear the same responsibility as the owner so
the fairness standard only goes part way, he said. "I don't
understand why we're not going the whole way, but I don't know
enough about the system to put an amendment in to say we should
do that because then the whole reason for workers' comp kind of
starts dissipating," he said.
8:40:08 AM
He said the testimony from Tesoro indicated that they would
become significantly liable while some contractors who they work
with wouldn't bear that same liability so it's not clear that
this will reach the fairness that the sponsor sought.
Nevertheless, I'm willing to continue the dialog so I'll
therefore remove my objection, he concluded.
CHAIR FRENCH announced that without objection, CSSB 303(JUD)
moved from the Senate Judiciary Standing Committee.
HB 386-CITATIONS
8:41:08 AM
CHAIR FRENCH announced the consideration of HB 386. [CSHB
386(FIN) was before the committee.]
REPRESENTATIVE MIKE HAWKER, sponsor of HB 386, said he
introduced the bill at the request of the Department of Public
Safety (DPS). It empowers DPS to prescribe a uniform format for
citations as well as a standardized process for people to deal
with the citations they have received. DPS believes that this
would reduce costs and increase operating efficiency,
particularly as the use of electronic technology increases.
Although the bill addresses a lot of different sections of
statute, many of the changes are conforming.
8:43:17 AM
JULIE LUCKY, staff to Representative Mike Hawker, said she would
go through the prepared overview that is in the packets, which
addresses 10 of the 65 sections in the bill. Section 21 sets out
the requirements for the standard citation format. It requires
the commissioner of DPS to prescribe a standard format and to
adopt regulations to do so. It also sets out, in a new section
of law, certain things that need to happen with citations.
Section 22 has technical changes to put the language in active
voice and on page 6, line 7, the phrase "has reasonable and
probable cause to believe" has been replaced with the words
"reasonably believes." This new language mirrors other places in
statute where somebody has to make a judgment, but it's not a
probable cause where there is an actual violation.
CHAIR FRENCH opined that it's a good change. Joining "reasonable
cause" and "probable cause" in the same sentence is confusing
because they are two different standards. He asked if they
learned in other committees that "reasonable belief" is probably
an appropriate field-screening standard for an officer.
MS. LUCKY answered yes, and it seemed like a reasonable change.
Section 23 removes a provision from AS 12.25.190 that says a
person can request a hearing that is earlier than five days
after a citation was issued. She related her understanding that
if someone did need an earlier hearing, there is still a method
to request that. This section also deletes language that refers
to deadlines, which is no longer needed because of the approval
of standard deadlines, she said.
Section 24 is included in the bill because of the Voting Safety
Act. It looks very similar to Section 23, but it has an
effective date. If the Voting Safety Act sunsets, this will
become law, she said.
8:47:57 AM
Section 25 amends AS 12.25.195(a). It adds the clarifying
language, "does not contest the citation" and inserts a 30-day
deadline for paying the fine for a scheduled offense.
Section 26 addresses the form for citations. She pointed out
that there is a requirement that the citation be in writing.
Most of the other changes in this section are technical in
nature. Section 27 amends AS 12.25.210(a) and talks about record
keeping requirements for peace officers. It says that if the
issuing agency fails to file the citation in a timely fashion,
that is not a basis for dismissal of the citation.
Sections 28 and 29 make technical changes to include other
agencies, not just peace officers in these statutes.
8:51:00 AM
Sections 30 and 31 are the penalty sections that outline what
happens to someone who doesn't pay their bail or follow the
requirements outlined by the citation. She noted that concern
had been expressed that this might make some of these offenses a
higher misdemeanor crime, but that is not the case. "Department
of Law assures me that we are not making a misdemeanor where
there wasn't one before," she said. Section 30 amends AS
12.25.230(a) and specifically says that a person who fails to
appear to answer their citation is guilty of a class A
misdemeanor. Section 31 repeals and reenacts AS 12.25.230(b) and
specifically says that a person who fails to appear to pay their
fine or to appear in response to their citation for a scheduled
offense is guilty of a class B misdemeanor.
MS. LUCKY said the aforementioned sections contain the "meat" of
the bill. "The majority of the bill is just conforming to those
changes and deadlines."
CHAIR FRENCH summarized that Sections 30 and 31 provide
penalties for someone who essentially does not deal with the
citation they were issued.
MS. LUCKY agreed.
CHAIR FRENCH asked her to give examples of scheduled and
unscheduled offenses.
MS. LUCKY explained that a scheduled offense is an offense for
which there is a scheduled fine. For example, if you park in the
wrong place the fine is X dollars. An unscheduled offense is an
offense that does not have a schedule of fines.
CHAIR FRENCH asked if speeding is an unscheduled offense.
MS. LUCKY deferred to the Department of Public Safety.
8:54:01 AM
KAT PETERSON, Lieutenant, Division of Alaska State Troopers,
Department of Public Safety (DPS), informed the committee that
speeding is a scheduled offense; a bale amount can be provided
on the citation itself. Unscheduled offenses are those that
require a mandatory court appearance to find out the bail. These
include minor consuming, minor operating a vehicle after
consuming alcohol, and tampering with official traffic control
devices.
CHAIR FRENCH asked about possession of marijuana.
LIEUTENANT PETERSON replied that is a criminal offence. The
unscheduled offenses she mentioned are mandatory infractions and
there aren't a lot of those still on the books that don't have
bail on the schedule until you get into the criminal offenses
like driving while your license is suspended. She added that
speeding over 20 miles per hour in a school zone is a mandatory
infraction that requires a court appearance.
CHAIR FRENCH recapped that if a person doesn't show up to pay a
fine for a scheduled offense, they are guilty of a class B
misdemeanor. Those offenses would include speeding or driving
with a headlight or taillight out. But if a person doesn't show
up for a minor consuming, minor operating a vehicle after
consuming alcohol, or tampering with an official traffic control
device, the person is guilty of a class A misdemeanor.
LIEUTENANT PETERSON agreed.
8:56:44 AM
SENATOR COGHILL recalled a deliberate policy call that was made
in the House that gave fire departments the ability to issue a
citation for CO emissions, but no penalty was attached. Noting
2
that the Fairbanks Northstar Borough is currently debating
whether or not particulates from a furnace should be an offense
and if it should have a class A misdemeanor attached, he
questioned how the broadened authority under this bill would
reach into the police or some local area and affect a local
ordinance.
MS. LUCKY said the bill does contain the language, "or
specifically provided by law" but she is unsure whether or not
that would include an ordinance. She offered to check with
legislative legal to find out.
SENATOR COGHILL said he wouldn't hold the bill up but he knows
that various communities are for a variety of reasons going to
make these policy calls to issue citations. What they're really
saying is they want to be able to apply pressure to change
certain behaviors, but they don't want to assess a fine.
MS. LUCKY said she doesn't believe it would be an issue because
a fine of zero is allowed, but she would double check.
9:00:04 AM
CHAIR FRENCH asked Lieutenant Peterson what the maximum penalty
is for a minor in possession or consuming alcohol for the first
or second offense.
LIEUTENANT PETERSON explained that it's an infraction for the
first and second offense. The maximum penalty is a $300 fine,
but most people receive a $100 fine.
CHAIR FRENCH asked if there is any mandatory community service.
LIEUTENANT PETERSON replied she hasn't seen that.
CHAIR FRENCH said he bought this up because he's puzzling over
whether or not this ratchets up the penalty too much. If this
were to become law, someone who is under age 21 and misses their
court hearing would face a year in jail instead of owing a $300
fine. That's the same penalty that's applied to somebody who is
charge with domestic violence or DWI and misses their court
hearing. People need to deal with their citations, but generally
failure to appear is penalized at the same level as the charge,
he said. If the charge is a misdemeanor and you miss court it's
a misdemeanor and if the charge is a felony and you miss court
it's a felony. Under this bill, people who miss court on a
speeding ticket would face jail time.
LIEUTENANT PETERSON said most misdemeanor charges result in a
fine rather than jail time. She also pointed out that most of
the behaviors that are on a scheduled fine are processed through
the permanent fund dividend (PFD) and they aren't changed to a
class A or class B misdemeanor.
CHAIR FRENCH asked if she's saying that if you miss court you'll
be found guilty and assessed a fine that will be garnished from
your PFD, but you probably won't get charged with failure to
appear.
LIEUTENANT PETERSON replied that's what's currently happening.
9:03:04 AM
SENATOR WIELECHOWSKI asked if there had been and discussion
about removing the language "has reasonable and probable cause
to believe" from page 6, lines 7-8.
CHAIR FRENCH explained that it eliminates the confusion of
joining the standard of reasonable cause and the standard of
probable cause in the same sentence. The phrase "reasonable
beliefs" replaces that language and the Department of Law may
want to talk about why that is significant, he said.
DAVID BROWER, Assistant Attorney General, Criminal Division,
Department of Law, addressing the questions about changing AS
12.25.230(a) to a class A misdemeanor and AS 12.25.230(b) to a
class B misdemeanor, clarified that there are several
misdemeanors that are specific and AS 12.25.230 was a specific
misdemeanor. You could get up to a year in jail under
subsections (a) and (b) and a fine of $1000. That wasn't an A
misdemeanor because an A misdemeanor has a higher fine, he said.
CHAIR FRENCH said it's called a special class misdemeanor.
MR. BROWER agreed. He explained that failure to appear is an
unclassified misdemeanor because it doesn't have a particular
fine. It's neither an A misdemeanor nor a B misdemeanor so the
proposed change in .230 to an A misdemeanor in subsection (a)
and a B misdemeanor in subsection (b) actually lowers the
penalty. Current law says that someone who has a bailable
offense can pay their fine, but if and they don't appear the
citation is converted into a summons. That's impossible, he
said, because a summons has to indicate the crime for which the
person is summoned for and a citation wouldn't have that because
failing to appear is a different crime. But a person wouldn't
automatically get charged with failure to appear, because that
has to come from the prosecutor.
Addressing the question about reasonable cause and probable
cause, he explained that in the law there are terms of art like
"probable cause" and "reasonable suspicion" and sometimes they
get mixed up in statute and have to be changed. He provided an
example. In this statute, where there's reasonable cause and
probable cause, it's giving the police the discretion to arrest
someone, but the primary goal isn't to make an arrest unless the
officer reasonably believes that the person is a danger or has
probable cause to believe the person is a danger. He continued
to say:
If you have probable cause to believe a crime was
committed, you can look at certain elements and see if
those elements are present. If you have probable cause
to believe someone is a danger, I think it turns on a
reasonable belief because there is no crime with
danger and what would probable cause be. I think it
was too confusing, but I don't think that the change
will have any practical effect.
SENATOR WIELECHOWSKI said he thought he heard him say that
reasonable cause is a lower standard than probable cause.
MR. BROWER replied reasonable cause isn't really a standard, but
reasonably believes would be a standard.
CHAIR FRENCH said reasonable suspicion is the field context for
a pat and frisk.
MR. BROWER said reasonable suspicion and probable cause are
terms that are used for police and courts to determine whether
an officer had a reasonable suspicion to believe that some type
of crime was happening. Probable cause requires that the
elements of the crime are actually met by certain facts that the
officer knows. In this case, the officer has probable cause to
cite the person for the violation and can make an arrest if the
person refuses to take the citation or refuses to identify him
or herself. The officer can also make an arrest if he or she
makes the determination that the person is a danger.
SENATOR WIELECHOWSKI said it seems that this makes it easier for
officers to arrest someone.
MR. BROWER replied that's not the case because the officer
already has the authority to arrest someone in that situation
because they have probable cause.
SENATOR WIELECHOWSKI reread the language and agreed that in this
situation it's purely the officer's discretion to either issue
the citation or take the person to the court.
MR. BROWER said that's right and the language in the section
that had reasonable cause and probable cause was essentially
taking that discretion away and requiring the officer to arrest
someone.
9:09:58 AM
CHAIR FRENCH asked Ms. Lucky where the bill goes after it leaves
this committee.
MS. LUCKY said this is the last committee of referral. She
informed the committee that this phrase doesn't appear anywhere
else in statute, but AS 47.12.245 However, there is another
section of statute 47.12.245 regarding delinquent minors talks
about when a peace officer should and should not make an arrest.
In that statute, a peace officer can make an arrest anytime he
or she reasonably believes the minor is a fugitive from justice
or has probable cause to believe the minor has violated a
condition of the minor's release or probation. This illustrates
the point DOL is talking about where you have probable cause
that a violation has occurred; where you have elements of a
crime or a reasonable belief and the peace officer has to make a
determination about the state of affairs or state of mind of the
person they are citing.
CHAIR FRENCH announced he would hold HB 386 for further
consideration.
SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING
9:11:40 AM
CHAIR FRENCH announced the consideration of SB 222.
At ease from 9:11 a.m. to 9:13 a.m.
SB 222 was heard previously and a committee substitute (CS),
labeled 26-GS2859\E, was adopted during the April 5, 2010
hearing. Chair French noted that he has three amendments that
are the result of negotiations between his office and the
Department of Law.
9:13:54 AM
CHAIR FRENCH moved Amendment 1, labeled 26-GS2859\E.1, and
objected to provide an explanation.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR FRENCH
CSSB 222(JUD), Draft Version "E"
Page 8, line 11:
Delete "associated with the account;"
Insert "and physical location associated with the
account; and"
Page 8, lines 12 - 13:
Delete all material.
Renumber the following paragraphs accordingly.
Page 8, line 15:
Delete ";"
Insert "."
Page 8, lines 16 - 19:
Delete all material.
CHAIR FRENCH explained that the amendment deals with the new
provision that gives subpoena power to the attorney general in
cases involving the use of an Internet service account in the
exploitation of children. Previous testimony indicated that
these administrative subpoenas might be challenged because of
the type of personal information they would collect. He read the
section with the amendment included and asked Ms. McLean if it
comports with her understanding of the amendment.
SUSAN MCLEAN, Director, Criminal Division, Department of Law
(DOL), said yes.
CHAIR FRENCH asked if the Department of Law supports the
amendment.
MS. MCLEAN answered yes.
CHAIR FRENCH removed his objection to Amendment 1.
SENATOR MCGUIRE asked Ms. McLean to provide the thought for
deleting a requirement to disclose "local and long distance
telephone connection records, including records of session times
and durations for the account."
MS. MCLEAN explained that DOL asked the Office of Special
Prosecutions and Appeals for an opinion on where within the
realm of personal privacy DOL could go without running afoul of
the statute or the Alaska Constitution. Their opinion was that
local and long distance telephone records, including records of
sessions and times and durations for the account, would include
unrelated personal telephone calls and that would present
difficulties if someone challenged on that ground. It was overly
broad.
9:18:03 AM
SENATOR MCGUIRE said she appreciates the prosecution's opinion
about what they can support, but she'd also like to hear from
the investigative unit to know if it might be a missing link not
to be able to associate the length of time someone is on the
Internet with a particular connection.
CHAIR FRENCH reminded the committee that this is just the first
step. This relates to the administrative subpoena that lets the
officer identify the suspect. A search warrant would have to be
obtained subsequent to that. He asked Sergeant DeGraaf to
provide his perspective.
DEREK DEGRAAF, Sergeant, Alaska State Troopers, Department of
Public Safety, said not having the record of the phone numbers
associated with the account won't affect their ability to do
their job. The primary information that they want is the name
and physical address that the IP address comes back to.
Obtaining a phone number or information about bank accounts is
secondary.
SERGEANT DEGRAAF explained that having those other records would
help determine who else may or may not be using the computer.
this would be helpful because they have to be able to put a
person behind the keyboard. Those secondary records can help
provide clarification, but if removing those items helps bring
everybody to the same page we'd go along with that and support
the bill with those items removed, he said.
9:21:29 AM
SENATOR WIELECHOWSKI pointed out that this section only applies
to the subpoena power of the attorney general and many people
would be rightly concerned about giving the attorney general
vast power to go ahead without any judicial review. An attorney
general is free to ask a court to issue a warrant for this
information, but to give the attorney general unfettered
subpoena power to get this information is what this amendment is
directed at. I support the amendment, he concluded.
CHAIR FRENCH said it's a balance because the attorney general
has to have a reasonable cause to believe that the Internet
service account has been used in the exploitation or attempted
exploitation of children. This is a good place to start and see
what kind of challenges we get. We'll stand those challenges,
we'll win them and go from there, he said.
Finding no further objection, he announced that Amendment 1 is
adopted.
9:22:59 AM
SENATOR FRENCH moved to adopt Amendment 2, labeled 26-
GS2859\E.2, and objected for discussion purposes.
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR FRENCH
CSSB 222(JUD), Draft Version "E"
Page 6, following line 30:
Insert a new bill section to read:
"* Sec. 16. AS 12.62.130 is amended to read:
Sec. 12.62.130. Reporting of uniform crime
information. A criminal justice agency shall submit to
the department, at the time, in the manner, and in the
form specified by the department, data regarding
crimes committed within that agency's jurisdiction. At
a minimum, the department shall require a criminal
justice agency to report each felony sex offense
committed in the agency's jurisdiction. The
department may withhold grant funding to a criminal
justice agency that fails to report data as required
by this section. The department shall compile, and
provide to the governor and the attorney general, an
annual report concerning the number and nature of
criminal offenses committed, the disposition of the
offenses, and any other data the commissioner finds
appropriate relating to the method, frequency, cause,
and prevention of crime. In this section, "sex
offense" has the meaning given in AS 12.63.100."
Renumber the following bill sections accordingly.
Page 9, lines 6 - 11:
Delete all material.
Renumber the following bill sections accordingly.
Page 9, line 31:
Delete "Sections 17 and 19"
Insert "Sections 18 and 19"
CHAIR FRENCH said this provision came about as a result of the
hearing last summer regarding reporting by smaller police
departments across the state of felony sex offenses committed in
their jurisdiction. Colonel Holloway reported that DPS wasn't
getting much data and therefore didn't know the actual level of
sex offense activity in these smaller areas. This provision
corrects that. He noted that his aide passed him a note that
said that this is a rewrite by the Department of Public Safety
of that earlier provision.
MS. MCLEAN said this rewrite moves the proposed mechanism for
insuring compliance from Title 44 to Title 12. The reason for
this is that AS 12.62.130 applies to what kind of criminal
justice information DPS is required to collect and it mandates
that the local agencies comply with the department's request.
This also puts the onus on local agencies to comply when they're
asked and it requires the sex offense language to be mandatory.
If the local agencies don't comply, they may lose grant funding
that they get through DPS.
CHAIR FRENCH removed his objection to Amendment 2. Finding no
further objection, he announced that Amendment 1 is adopted.
9:25:02 AM
SENATOR FRENCH moved to adopt Amendment 3, labeled 26-
GS2859\E.3, and objected for discussion purposes.
AMENDMENT 3
OFFERED IN THE SENATE SENATOR FRENCH
CSSB 222(JUD), Draft Version "E"
Page 1, line 2, following "pornography,":
Insert "failure to register as a sex offender,"
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 3. AS 11.56.840 is repealed and reenacted
to read:
Sec. 11.56.840. Failure to register as a sex
offender or child kidnapper in the second degree.
(a) A person commits the crime of failure to
register as a sex offender or child kidnapper in
the second degree if the person
(1) is required to register under
AS 12.63.010;
(2) knows that the person is required
to register under AS 12.63.010; and
(3) with criminal negligence fails to
(A) register;
(B) file written notice of
(i) change of residence;
(ii) change of mailing
address;
(iii) establishment of an
electronic or messaging address or any
change to an electronic or messaging
address; or
(iv) establishment of an
Internet communication identifier or
any change to an Internet communication
identifier;
(C) file the annual or quarterly
written verification; or
(D) supply accurate and complete
information required to be submitted under
this paragraph.
(b) In a prosecution for failure to
register as a sex offender in the second degree
under (a) of this section, it is an affirmative
defense that
(1) unforeseeable circumstances,
outside the control of the person, prevented the
person from registering under (a)(3)(A) of this
section or filing or supplying the written
notices, verification, and other information
required under (a)(3)(B) - (D) of this section;
and
(2) the person contacted the
Department of Public Safety orally and in writing
immediately upon being able to perform the
requirements described in this section.
(c) Failure to register as a sex offender
or child kidnapper in the second degree is a
class A misdemeanor."
Renumber the following bill sections accordingly.
Page 9, line 29:
Delete "Sections 1 - 16"
Insert "Sections 1 - 17"
Page 9, line 31:
Delete "Sections 17 and 19"
Insert "Sections 18 and 20"
CHAIR FRENCH said this amendment relates to what Ms. McLean has
repeatedly described as "the former Section 3." The CS removed
that section and this amendment puts it back in the bill. It
pertains to the mental state that the Department of Law has to
prove in order to convict a person of failure to register as a
sex offender. He related that after Ms. McLean testified
yesterday, he read the Moffitt case and concurs with her view
that removing that section would leave the state in a nearly
impossible position when trying to prove failure to appear under
the Moffitt decision.
He said he continues to believe that there has to be some mental
element, but this puts it as low as possible at criminal
negligence. This leaves DOL in the best position while still
maintaining some mental element regarding what they have to
prove about what's in the mind of the offender. He noted that
the same standard would be used in the failure to appear
provision of the bail bill.
MS. MCLEAN said DOL asked for this because it's very helpful to
have the Legislature specify mental states. She then clarified
that although she talked about the Moffitt case during the
previous hearing, the most recent decision is Solomon v. State.
That case was decided March 26 and it clearly said that the
mental state of negligence survives constitutional challenges.
SENATOR WIELECHOWSKI asked what the current standard is because
he thought it was a strict liability standard.
MS. MCLEAN said this was a compromise. She pointed out that DOL
has always felt that they could defend a strict liability
standard with regard to failure to register as a sex offender
and has always recognized that the mental state that they had to
prove is that the person knew that they were required to
register as a sex offender. This means showing some sort of
documentation that proves that the person had notice of their
duty to register, and having that notice they didn't do so. They
felt that was sufficient and there has never been a challenge to
sex offender registration on those grounds, she said. But given
the Moffitt decision, they're trying to have foresight about
possible challenges and they're saying that it exists because
there is no specified mental state in either of those [failure
to appear] statutes.
9:28:05 AM
CHAIR FRENCH clarified that Moffitt pertains to failure to
appear in court, but failure to appear and failure to register
are similar ideas.
SENATOR WIELECHOWSKI asked for a brief explanation of the
standard that the Moffitt court held.
MS. MCLEAN said it's an interesting intellectual pursuit because
the Alaska statutes say that if a statute doesn't specify a
mental state, the general rule is that the mental state is
knowing as to circumstances and reckless as to conduct. Up until
the Moffitt decision, DOL's understanding of failure to appear
was that the state had to prove that the person knew that they
had to appear and the state would do that by paperwork the
person signed or recordings of the judge telling the person they
had to appear. DOL believed that they satisfied the reckless
mental state by showing that the person was aware of the court
date and disregarded it. The Moffitt decision was a surprise
because it said the state had to disprove the excuses a person
might have for not appearing and that's not possible.
CHAIR FRENCH summarized that the Moffitt decision basically said
that the state had to prove that at some date after the
defendant walked out of court he or she formed a decision not to
go to court. "That just struck me as being impossible," he said.
SENATOR WIELECHOWSKI questioned what would be wrong with the
strict liability standard and if it would violate Moffitt to say
that a person who is court ordered to register as a sex offender
and does not do so is guilty of failing to register, regardless
of any reason or excuse.
CHAIR FRENCH said DOL likes that, but he was uncomfortable with
it because it leaves a little room - at criminal negligence or
below - for a series of horrific incidents that would leave a
person unable to register.
9:30:40 AM
SENATOR WIELECHOWSKI asked for the technical definition of
criminal negligence.
MS. MCLEAN provided the following:
The technical definition of criminal negligence is the
person was unaware of a fact of which the person would
have been aware and that the failure to be aware of it
was a gross deviation from the standard of conduct
that a reasonable person would observe in the
situation. And, if the reason you're not aware is
because you were intoxicated, you're aware.
SENATOR WIELECHOWSKI posed a hypothetical situation where a
person moved to a new community and forgot to register. Noting
that they're guilty under current law of strict liability, he
asked if that's criminal negligence.
MS. MCLEAN said no, that's strict liability. She reiterated that
strict liability is what DOL has been proving and that hasn't
been challenged, but after the Moffitt decision they became
concerned and wanted to codify what they believe the law is and
that's strict liability. This amendment was a compromise, she
said.
SENATOR WIELECHOWSKI asked if it would be criminal negligence if
a person were to move to another community and forget to
register.
MS. MCLEAN replied she believes it's clearly criminal
negligence, but just forgetting is an excuse under the Moffitt
standard and it's an excuse the state has to disprove as part of
its case.
SENATOR WIELECHOWSKI expressed discomfort with the amendment.
CHAIR FRENCH said he believes that failure to register as a sex
offender is something that should be punished, but he's a little
uncomfortable with strict liability. That being said, he would
accept the will of the committee.
9:33:09 AM
SENATOR COGHILL asked how strict liability would play out
practically. He observed that Alaska has the highest standard
for many laws, but there's discretion on application.
CHAIR FRENCH acknowledged that the Department of Law always has
discretion not to bring a charge, but strict liability basically
leaves you with absolutely no excuse whatsoever. It doesn't
matter if you've been in a debilitating car accident or your
mother was shot last night, under strict liability you're
guilty.
MS. MCLEAN pointed out that Section 3 in the original bill
provided that the excuse was an affirmative defense. That is
that the court has to listen to the defense and the jury gets to
decide. Strict liability says that you lose that defense and the
jury doesn't get to consider it.
She said that in the original bill and before DOL wrote in the
negligent mental state in this amendment, they said you have to
prove a mental state with regard to failure to register. The
mental state you have to prove is that the person knew they had
to register. We accept that burden; it's the same burden as
beyond a reasonable doubt, she said. If the person has an
excuse, their affirmative defense is to present their excuses
and then the burden shifts back to the state to disprove beyond
a reasonable doubt that the excuses are valid. That's how we
would want to do it and Senator French has another idea, she
said.
SENATOR WIELECHOWSKI said he needs to read Moffitt a little
more, but he's not comfortable with the amendment at this time.
At ease from 9:36 a.m. to 9:37 a.m.
9:37:10 AM
CHAIR FRENCH withdrew Amendment 3.
At ease from 9:37 a.m. to 9:38 a.m.
9:38:59 AM
CHAIR FRENCH moved to adopt conceptual Amendment 4.
CONCEPTUAL AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 222(JUD), Draft Version "E"
Reinsert Section 3 of SB 222, Version "A"
Insert a new section that would be parallel to Section
21 as it appears in CSHB 298(JUD), Version "R" that
reads as follows:
The uncodified law of the State of Alaska is
amended by adding a new section to
read:
LEGISLATIVE STATEMENT CONCERNING CULPABLE
MENTAL STATE. In AS 11.56.840(a), as
repealed and reenacted by sec. 3 of this
Act, the only culpable mental state required
to be proven by the prosecution is the
"knowing" requirement in paragraph (2) of
that subsection. No other culpable mental
state needs to be proven for the other
elements of that offense.
CHAIR FRENCH announced that without objection, conceptual
Amendment 4 was adopted.
9:40:36 AM
SENATOR WIELECHOWSKI moved to report CS for SB 222, version E,
as amended, from committee with individual recommendations and
attached fiscal note(s). There being no objection, CSSB 222(JUD)
moved from the Senate Judiciary Standing Committee.
9:40:59 AM
There being no further business to come before the committee,
Chair French adjourned the meeting at 9:40 a.m.
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