Legislature(2013 - 2014)CAPITOL 120

02/12/2014 01:00 PM House JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 218 PENALTY: ASSAULT ON CORRECTIONAL EMPLOYEE TELECONFERENCED
Heard & Held
*+ HB 255 UNMANNED AIRCRAFT SYSTEMS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 218-PENALTY: ASSAULT ON CORRECTIONAL EMPLOYEE                                                                    
                                                                                                                                
1:11:33 PM                                                                                                                    
                                                                                                                                
CHAIR  KELLER announced  the  first order  of  business would  be                                                               
House Bill  218, "An  Act relating to  the aggravating  factor at                                                               
felony  sentencing of  multiple prior  misdemeanors when  a prior                                                               
misdemeanor involves an assault on  a correctional employee."  He                                                               
noted an amendment offered by the Department of Law.                                                                            
                                                                                                                                
1:12:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MIKE CHENAULT,  Alaska State Legislature, speaking                                                               
as one of the joint prime  sponsors of HB 218, explained that the                                                               
bill  was   introduced  as  a   result  of  discussions   with  a                                                               
correctional officer at the Spring  Creek Correctional Center who                                                               
had  been assaulted.   He  noted that  correctional officers  are                                                               
included  in  statutes  setting  the  penalties  for  assault  on                                                               
certain uniformed officials, except  in AS 12.55.155(c)(31), that                                                               
covers the  aggravating factor of misdemeanors.   The aggravating                                                               
factor in this statute allows a  judge to impose a sentence above                                                               
the  presumptive range  if the  defendant has  five previous  for                                                               
convictions  class A  misdemeanors.   Convictions for  two crimes                                                               
that are  part of a  single criminal  episode are counted  as one                                                               
prior  conviction;  however,  current  law  provides  that  prior                                                               
convictions  for  resisting  arrest and/or  a  misdemeanor  while                                                               
attempting escape and/or  assault on a police  officer would each                                                               
count as  a prior conviction  even though  they were part  of the                                                               
same  criminal  episode.    House Bill  218  extends  this  extra                                                               
protection  of  counting  prior   for  correctional  officers  by                                                               
counting prior  convictions for similar crimes  committed against                                                               
correctional  officers. He  noted his  support for  including the                                                               
amendment included in the committee packet.                                                                                     
                                                                                                                                
1:16:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT  moved that the committee  adopt Amendment                                                               
1, labelled 28-LS0941\A.2, Strasbaugh, 2/11/14, which read:                                                                     
                                                                                                                                
     Page 1, line 3, following "employee":                                                                                    
          Insert "; providing that deportation is not a                                                                       
     proper factor for referral of a case to a three-judge                                                                    
      panel for sentencing for a felony; and providing for                                                                    
     an effective date"                                                                                                       
                                                                                                                                
     Page 1, following line 4:                                                                                                  
     Insert a new bill section to read:                                                                                         
        "* Section  1. The  uncodified law  of the  State of                                                                
     Alaska is amended by adding a new section to read:                                                                         
          LEGISLATIVE INTENT FOR SECTIONS 3 AND 4 OF THIS                                                                       
     ACT.  It   is  the  intent  of   the  legislature  that                                                                    
     AS 12.55.165(d),  added  by sec.  3  of  this Act,  and                                                                    
     AS 12.55.175(g), added by sec. 4  of this Act, overturn                                                                    
     the decision  of the Alaska  Court of Appeals  in State                                                                    
     v. Silvera, 309  P.3d 1277 (Alaska Ct.  App. 2013), and                                                                    
     the Alaska  Supreme Court  in Dale  v. State,  626 P.2d                                                                    
     1062  (Alaska 1980)  to the  extent that  the decisions                                                                    
     hold that the  risk of deportation may  be considered a                                                                    
     basis for referral  of a felony sentencing  to a three-                                                                    
     judge panel."                                                                                                              
                                                                                                                                
     Page 1, line 5:                                                                                                            
          Delete "Section 1"                                                                                                  
          Insert "Sec. 2"                                                                                                     
                                                                                                                                
     Renumber the following bill section accordingly.                                                                           
                                                                                                                                
     Page 6, following line 4:                                                                                                  
     Insert new bill sections to read:                                                                                          
        "* Sec. 3.  AS 12.55.165 is amended by  adding a new                                                                
     subsection to read:                                                                                                        
          (d)  A court may not refer a case to a three-                                                                         
     judge panel  under (a) of  this section if  the request                                                                    
     for  referral is  based, in  whole or  in part,  on the                                                                    
     claim that a sentence  within the presumptive range may                                                                    
     result  in  the  classification  of  the  defendant  as                                                                    
     deportable  under  federal   immigration  law  or  that                                                                    
     collateral  consequences  may  or will  result  if  the                                                                    
     defendant is classified as deportable.                                                                                     
        * Sec.  4. AS 12.55.175 is  amended by adding  a new                                                                  
     subsection to read:                                                                                                        
          (g)      A   defendant   being   sentenced   under                                                                    
     AS 12.55.125(c),  (d), (e)  or (i)  may not  establish,                                                                    
     nor  may a  three-judge panel  find under  (b) of  this                                                                    
     section or  any other  provision of law,  that manifest                                                                    
     injustice would result from  imposing a sentence within                                                                    
     the presumptive  range based, in  whole or in  part, on                                                                    
     the  claim   that  the  sentence  may   result  in  the                                                                    
     classification  of the  defendant  as deportable  under                                                                    
     federal    immigration   law    or   that    collateral                                                                    
     consequences  may or  will result  if the  defendant is                                                                    
     classified as deportable.                                                                                                  
        * Sec. 5. The uncodified  law of the State of Alaska                                                                  
     is amended by adding a new section to read:                                                                                
          APPLICABILITY. (a) Section 2 of this Act applies                                                                      
      to offenses committed on or after the effective date                                                                      
     of this Act.                                                                                                               
          (b)  Sections 3 and 4 of this Act apply to                                                                            
     offenses committed before, on, or after the effective                                                                      
       date of this Act if the sentence is imposed on or                                                                        
     after the effective date of this Act.                                                                                      
        * Sec. 6. This Act takes effect July 1, 2014."                                                                        
                                                                                                                              
REPRESENTATIVE GRUENBERG objected for purposes of discussion.                                                                   
                                                                                                                                
1:16:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MILLETT explained  that  Amendment  1 includes  a                                                               
title  change, prior  to  Section 1  is the  insertion  of a  new                                                               
section of legislative intent, and  a new subsection of Section 3                                                               
specifying that a mitigating factor cannot  be a reason to have a                                                               
three-judge panel under this section  of law.  She requested that                                                               
Mr. Svobody speak to the changes made in Sections 4 and 5.                                                                      
                                                                                                                                
1:18:04 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
[Chair Keller passed the gavel to Representative Pruitt.]                                                                       
                                                                                                                                
1:19:18 PM                                                                                                                    
                                                                                                                                
RICHARD  SVOBODNY,  Deputy  Attorney General,  Criminal  Division                                                               
Department of Law,  stated that Amendment 1 also  provides that a                                                               
trial court  could not send a  case to a three-judge  panel to go                                                               
below the  presumptive minimums  on the  sentence based  upon the                                                               
probabilities of deportation.  However,  if a case does go before                                                               
a  three-judge panel,  the judges  cannot make  a decision  based                                                               
upon the probabilities of deportation.   Mr. Svobodny agreed with                                                               
Representative Millett  that deportation could  not be used  as a                                                               
mitigating factor  for a trial court  to place the case  before a                                                               
three-judge panel.                                                                                                              
                                                                                                                                
1:20:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX remarked she  had mixed feelings about this                                                               
issue  as  she has  seen  families  torn  apart  as a  result  of                                                               
deportation.   On the other hand,  it does not seem  fair that an                                                               
individual could  commit a crime,  particularly a  violent crime,                                                               
and  receive  a lesser  sentence  because  he/she does  not  have                                                               
citizenship.   She suggested  that if  the federal  government is                                                               
deporting  individuals  who  should  not be  deported,  then  the                                                               
protest should  be with the  federal government and not  with the                                                               
Alaska's presumptive sentencing law.                                                                                            
                                                                                                                                
1:21:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  stated   he  would  vigorously  oppose                                                               
Amendment  1 for  the following  reasons.   First, attempting  to                                                               
change federal  immigration law is  impossible.  Second,  it does                                                               
not give  defendants a break under  state law as it  is only non-                                                               
citizens that  face the additional punishment  of being deported.                                                               
Third,  this   legislation  divests  the  three-judge   panel  of                                                               
jurisdiction to  decide the  issue.  Amendment  1 will  result in                                                               
these individuals not even receiving a hearing.                                                                                 
                                                                                                                                
1:23:43 PM                                                                                                                    
                                                                                                                                
MR. SVOBODNY,  speaking to Representative  LeDoux, said  that the                                                               
question is  not between people  who are non-citizens  and people                                                               
who   gain   citizenship,   although  they   would   be   treated                                                               
differently.   The  matter is  regarding different  sentences for                                                               
people who  do not have  citizenship versus people who  were born                                                               
here,  which the  Department  of Law  deems  to be  fundamentally                                                               
unfair.   He acknowledged there are  many collateral consequences                                                               
to being convicted of a crime.   For instance, someone three days                                                               
from being vested  in their retirement system goes  to jail; they                                                               
will not  become vested in that  retirement system.  A  felon not                                                               
allowed to  vote in an  election where  that one vote  would have                                                               
changed the outcome of the  election is a collateral consequence.                                                               
Amendment 1  attempts to treat  people who likely  have committed                                                               
the  same crime  equally.   Although Representative  Gruenberg is                                                               
correct that federal  law will not be changed, the  point is that                                                               
those defendants  with the possibility  of being deported  in the                                                               
future  get a  break under  current law  that those  born in  the                                                               
state do not.                                                                                                                   
                                                                                                                                
1:26:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT pointed  out that in State  v. Silvera and                                                             
State  v.   Perez  the  sentences   were  lessened  due   to  the                                                             
possibility of  deportation.  The  option of a  three-judge panel                                                               
would not  be offered  to a  U.S. citizen  convicted of  a crime.                                                               
She  opined that  to  allow  a non-U.S.  citizen  the ability  to                                                               
obtain a lesser  sentence than someone who is a  U. S. citizen is                                                               
discriminatory.   She  further  opined that  it  does not  matter                                                               
whether one was born in  another country, the crime was committed                                                               
in the U.S. and there is  the possibility that a non-U.S. citizen                                                               
could  be deported  prior to  the conviction  of a  felony.   For                                                               
instance, non-citizens could be  deported prior to the conviction                                                               
of a  felony.   For instance, non-citizens  can be  deported when                                                               
caught without a green card.   Representative Millet conveyed her                                                               
belief   that   Representative   Gruenberg  is   wrong   in   his                                                               
interpretation of  Amendment 1,  the intent of  which is  to make                                                               
the judicial system fair to  everyone and allow everyone the same                                                               
opportunities  whether  they  are   from  this  country  or  not.                                                               
Representative Millett  said she  supports Amendment 1  fully and                                                               
believes it  would make  the judicial  system fair  and equitable                                                               
for all  people living  in the U.S.,  especially those  living in                                                               
Alaska.                                                                                                                         
                                                                                                                                
1:29:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PRUITT  opined that  the important aspect  of this                                                               
discussion  is that  deportation should  not  be a  factor.   All                                                               
individuals who  have committed  a crime must  be treated  on the                                                               
same  level;  the state  cannot  create  two classes  of  people,                                                               
citizens and non-citizens, he stated.                                                                                           
                                                                                                                                
1:30:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX inquired  as  to mitigating  circumstances                                                               
other than deportation that a three-judge panel might consider.                                                                 
                                                                                                                                
MR.  SVOBODNY,   before  responding  to   Representative  LeDoux,                                                               
clarified that  the legislature has  chosen to  establish written                                                               
factors that  would aggravate the  sentencing, which  are located                                                               
in the first part of this  bill.  He further clarified that there                                                               
is a  list of mitigating factors  listed in the statute  as well.                                                               
He  said it  is  an  extraordinary remedy  to  place a  defendant                                                               
before  a  three-judge   panel,  as  it  is  not   a  written  or                                                               
aggravating or mitigating factor.   In response to Representative                                                               
LeDoux,  he  advised that  a  serious  type  of offense  when  an                                                               
individual  is coerced  by  another person  [to  commit a  crime]                                                               
would be a mitigating factor, which would reduce a sentence.                                                                    
                                                                                                                                
1:31:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX   asked  whether   there  are   any  other                                                               
circumstances in which case would  be sent to a three-judge panel                                                               
to consider other collateral consequences of an incarceration.                                                                  
                                                                                                                                
1:32:28 PM                                                                                                                    
                                                                                                                                
MR.  SVOBODNY presuming  it was  a presumptive  sentence, advised                                                               
that the court had the discretion  to use other types of factors,                                                               
such as  allowing a defendant to  serve time every other  week in                                                               
order  to support  the family  or serving  six months  instead of                                                               
eight months in order  to be out of jail in  time for the fishing                                                               
season.   When a  defendant is  within the  range, the  court can                                                               
consider [collateral consequences] but  it must apply the factors                                                               
the legislature has  established.  The legislature  set goals for                                                               
sentencing,  including  rehabilitation,   deterring  people  from                                                               
committing  other  crimes,  deterring an  individual  in  certain                                                               
instances, to  isolate a dangerous  offender, and  aiding victims                                                               
in  receiving  restitution.   However,  the  legislature has  not                                                               
specified deportation as a factor.                                                                                              
                                                                                                                                
1:34:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX queried  whether there  are any  instances                                                               
[of collateral consequences]  that would mandate or  allow a case                                                               
to go before a three-judge panel.                                                                                               
                                                                                                                                
1:34:43 PM                                                                                                                    
                                                                                                                                
MR. SVOBODNY  replied he could  not think of an  instance because                                                               
it  is   the  non-statutory  mitigating  factors   that  place  a                                                               
defendant before a  three-judge panel.  When  a mitigating factor                                                               
is set out  in statute, the trial judge can  reduce the sentence.                                                               
Non-statutory factors  are all  established by  case law  that is                                                               
based upon  a specific  circumstance.  The  Court of  Appeals and                                                               
three-judge  panels have  approved  "extraordinary potential  for                                                               
rehabilitation"  and  "developmental immaturity,"  as  mitigating                                                               
factors.                                                                                                                        
                                                                                                                                
1:36:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG expressed  the  need to  hear from  the                                                               
immigration bar,  specifically Ms.  Margaret Stock,  recipient of                                                               
the MacArthur  Genius Award, an immigration  lawyer, and previous                                                               
professor  at   West  Point,   as  well   as  the   defense  bar.                                                               
Representative Gruenberg related his  understanding that if there                                                               
is an aggravator  or mitigator in the statutory  list of factors,                                                               
the  trial  judge  has  the   authority  to  apply  the  factors.                                                               
However, if  it is not  listed in  statute, the trial  judge only                                                               
has  the authority  to refer  the  case to  a three-judge  panel,                                                               
which is  a very unusual circumstance.   The law doesn't  say one                                                               
way or  the other but leaves  it was up to  the three-judge court                                                               
subject  to  review.   Amendment  1,  he opined,  eliminates  the                                                               
possibility [of a three-judge panel  review] entirely.  Under the                                                               
current law there  is a right to a fair  hearing.  Certainly, the                                                               
judges would determine when a  defendant did not deserve a lesser                                                               
sentence,  but  Amendment 1  does  not  allow the  defendant  who                                                               
deserves  a lesser  sentence to  have a  shot at  the three-judge                                                               
panel,  he  opined.     Representative  Gruenberg  requested  the                                                               
committee not make  up its mind today and allow  both sides to be                                                               
heard.                                                                                                                          
                                                                                                                                
1:40:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CHENAULT  reminded  the  committee  that  earlier                                                               
Chair Keller  stated it was  not his  intention to move  the bill                                                               
out of committee  today, which should give  people an opportunity                                                               
to speak.                                                                                                                       
                                                                                                                                
1:41:33 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG   stated  that  he  does   support  the                                                               
unamended bill,  which he  hoped would make  its way  through the                                                               
process.                                                                                                                        
                                                                                                                                
1:42:06 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT suggested  Representative Gruenberg should                                                               
review the  case law  for defendants who  used deportation  as an                                                               
aggravating and  mitigating factor  in order  to make  their case                                                               
before a three-judge  panel.  Creating a special  class of people                                                               
because they are  not U.S. citizens and allowing  them to receive                                                               
a  lesser sentence  based upon  deportation is  distinctly wrong,                                                               
she opined.   She  further opined  that is  not what  the justice                                                               
system is for or the constitution intended.                                                                                     
                                                                                                                                
1:44:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  described  legislators as  judges  who                                                               
hand out decisions  each time a bill or amendment  is voted upon.                                                               
Therefore, he expressed  the desire for the committee  to keep an                                                               
open mind.                                                                                                                      
                                                                                                                                
1:46:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PRUITT removed  his objection to Amendment  1.  He                                                               
then related his  understanding that Chair Keller  wanted to move                                                               
forward with adopting the amendment  as the bill will come before                                                               
the committee for a larger discussion.                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG  objected,  adding   that  he  did  not                                                               
believe the  committee should vote  as he was  not in favor  of a                                                               
vote being taken on the  amendment until the committee hears from                                                               
as it would be unfair.                                                                                                          
                                                                                                                                
1:47:10 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
1:48:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  disclosed she  was  uncertain  as to  her                                                               
position on Amendment  1 and would prefer hearing  from Ms. Stock                                                               
and anyone else who wished  to testify about [deportation] before                                                               
considering the amendment.                                                                                                      
                                                                                                                                
1:49:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MILLETT stated  that  if Amendment  1 is  adopted                                                               
today  or  later and  the  committee  then  determined it  to  be                                                               
unfair, she  would be the  first person to remove  the amendment.                                                               
Representative Millet  opined that  the bill  is better  with the                                                               
inclusion of Amend 1 and she will vote in favor of its adoption.                                                                
                                                                                                                                
1:50:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PRUITT  advised  that  procedurally  the  current                                                               
motion  before  the  committee   is  regarding  the  adoption  of                                                               
Amendment  1, a  motion  that would  have to  be  removed by  the                                                               
sponsor of the amendment.                                                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG moved  to table  Amendment 1  until the                                                               
next  time  the  bill  is   heard,  which  he  established  is  a                                                               
procedural precedential motion.                                                                                                 
                                                                                                                                
REPRESENTATIVE  PRUITT  stated  the  committee  could  table  the                                                               
amendment, as well.                                                                                                             
                                                                                                                                
1:51:08 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
1:51:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG offered to  withdraw his motion to table                                                               
Amendment 1  if Representative Pruitt would  make the appropriate                                                               
ruling.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  PRUITT related  that he  did not  have a  problem                                                               
holding  Amendment 1  until  a future  time when  he  is not  the                                                               
acting chair.   However, if there is a desire  from the committee                                                               
to go forward  with Amendment 1 he  would not stop the  vote.  He                                                               
then  announced his  support of  Representative Millett's  desire                                                               
for Amendment 1.                                                                                                                
                                                                                                                                
REPRESENTATIVE  MILLETT interjected  her  understanding that  the                                                               
committee  must first  dispense  with Representative  Gruenberg's                                                               
motion to table Amendment 1 before proceeding.                                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG reiterated  his offer  to withdraw  his                                                               
motion to table the Amendment  1, allows the committee to discuss                                                               
the subject, and  then he would re-make the motion  as he did not                                                               
want to  table the debate.   He said  generally when a  member of                                                               
the  committee  requests something  like  this,  as a  matter  of                                                               
courtesy it is honored.                                                                                                         
                                                                                                                                
REPRESENTATIVE PRUITT  asked Representative  Gruenberg if  he was                                                               
withdrawing his motion to table Amendment 1.                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  withdrew his motion to  table Amendment                                                               
1 for the purpose of debating the issue.                                                                                        
                                                                                                                                
1:53:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  FOSTER inquired  as to  Representative Chenault's                                                               
preference  with Amendment  1  and  requested clarification  from                                                               
Representative  Chenault  as  to  whether  or  not  he  supported                                                               
letting  this amendment  come back  for debate,  or preferred  to                                                               
move it on and  thus have the debate on the  amendment come up at                                                               
its next stop.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  CHENAULT   stated  his  preference  to   take  up                                                               
Amendment 1 today and noted his support for Amendment 1.                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG  pointed  out  that this  is  the  only                                                               
committee of  referral so if  it is  not debated today,  the bill                                                               
goes to the floor.                                                                                                              
                                                                                                                                
REPRESENTATIVE PRUITT reiterated  that the intent is  not to move                                                               
the bill out  of committee today.  He advised  the current debate                                                               
is  whether  HB  218  will  include  Amendment  1,  or  not,  for                                                               
discussion at a future time.                                                                                                    
                                                                                                                                
1:54:53 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MILLETT   stated  a  point  of   order  that  the                                                               
committee has  a motion to table  Amendment 1 before it  and must                                                               
take a vote.                                                                                                                    
                                                                                                                                
REPRESENTATIVE PRUITT  advised that Representative  Gruenberg had                                                               
previously removed his motion [to table Amendment 1].                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG clarified, "I've  removed the motion for                                                               
a few minutes for us to discuss  it."  He reiterated that this is                                                               
the only committee of referral for  HB 218.  He expressed concern                                                               
that adoption  of Amendment 1 before  both side of the  issue had                                                               
been heard  would be  premature and  that it  is unfair  to those                                                               
people who desire to take the amendment out of the bill.                                                                        
                                                                                                                                
1:56:21 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MILLETT  acknowledged  that   this  is  the  only                                                               
committee of  referral for HB 218  and emphasized it was  not the                                                               
last time the  committee would hear the bill.   If Amendment 1 is                                                               
adopted today it would become part  of the bill, and thus be part                                                               
of  the discussion.   She  noted her  disagreement that  adopting                                                               
Amendment  1 today  would  shift the  burden.   Furthermore,  she                                                               
opined, if there  is an amendment before the  committee and there                                                               
are the  votes to adopt  it, it should  be adopted.   She further                                                               
opined that there  will be ample time to hear  both sides of this                                                               
issue, and  stated she would  not force  the bill to  move before                                                               
its  time.   Representative Millett  suggested there  would be  a                                                               
delay if the committee did not  take a vote on Amendment 1 today,                                                               
and therefore she requested a vote on Amendment 1.                                                                              
                                                                                                                                
1:57:54 PM                                                                                                                  
                                                                                                                                
REPRESENTATIVE CHENAULT articulated  he did not want  to get into                                                               
a debate on  whether Amendment 1 is adopted or  not.  With regard                                                               
to Representative  Gruenberg's concern  over where the  burden is                                                               
placed if  Amendment 1 is  adopted, Representative  Chenault said                                                               
it is no different than introducing  a bill someone does not like                                                               
and that person must testify  in committee and participate in the                                                               
process  to try  to get  rid of  that bill.   This  amendment, he                                                               
said, is  no different  than a bill  as once it  is put  into the                                                               
process,  the committee  debates on  whether it  is good  or bad,                                                               
right or wrong, or needs to be changed.                                                                                         
                                                                                                                                
REPRESENTATIVE PRUITT  suggested that  at this point  the sponsor                                                               
could submit  a sponsor substitute, including  the amendment, and                                                               
the sponsor substitute would come before the committee.                                                                         
                                                                                                                                
REPRESENTATIVE LEDOUX related it was  her preference to hear more                                                               
discussion before voting on Amendment 1.                                                                                        
                                                                                                                                
1:59:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG assessed  that  the committee  is at  a                                                               
procedural  juncture, which  is the  same  place it  is when  the                                                               
majority leader  offers a committee  substitute.  He  pointed out                                                               
that it takes  a majority vote to adopt  the committee substitute                                                               
versus the  original bill.  A  majority vote is also  required to                                                               
remove a  section from a  committee substitute that  was adopted.                                                               
However, he opined that it is  more important what the members do                                                               
now  because there  is a  much greater  chance that  every single                                                               
vote could  decide the issue.   He highlighted that at  least two                                                               
members  have requested  the courtesy  of  not taking  a vote  on                                                               
[Amendment 1] until  [the next hearing].  He  questioned what the                                                               
rush  is and  why  both  side couldn't  be  heard  prior [to  the                                                               
adoption of Amendment  1].  The aforementioned,  he opined, would                                                               
not  cause harm,  although  there would  be  significant harm  in                                                               
addressing Amendment 1 prior to hearing both sides.                                                                             
The committee took a brief at-ease.                                                                                             
                                                                                                                                
2:04:14 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PRUITT  reminded there was  a motion on  the floor                                                               
to table Amendment 1.                                                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG   clarified  that  his  motion   is  to                                                               
postpone the motion to adopt Amendment  1 until the next time the                                                               
bill is heard.                                                                                                                  
                                                                                                                                
2:04:20 PM                                                                                                                    
                                                                                                                                
A  roll  call vote  was  taken.   Representatives  Gruenberg  and                                                               
LeDoux  voted  in  favor  of  the motion  to  table  Amendment  1                                                               
Representatives Millet,  Foster, Lynn,  and Pruitt  voted against                                                               
it.  Therefore, the motion to  table Amendment 1 failed by a vote                                                               
of 2-4.                                                                                                                         
                                                                                                                                
2:04:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PRUITT  inquired  as  to  whether  the  committee                                                               
wanted  to end  debate  at  this time,  continue  to discuss  the                                                               
matter, or take the vote.                                                                                                       
                                                                                                                                
REPRESENTATIVE FOSTER  stated he shared the  comments conveyed by                                                               
Representative  LeDoux.   However,  if  Amendment  1 was  adopted                                                               
today,  and the  committee  heard  from the  other  side, and  he                                                               
changed  his position  on Amendment  1, he  would be  comfortable                                                               
with a vote  deleting Amendment 1.  Either way,  he said he could                                                               
make an informed and unbiased decision at that time.                                                                            
                                                                                                                                
REPRESENTATIVE PRUITT voiced he  felt comfortable the issue would                                                               
be heard again.                                                                                                                 
                                                                                                                                
2:05:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT moved that Amendment 1 be adopted.                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG objected.                                                                                              
                                                                                                                                
A  roll call  vote  was taken.    Representatives Lynn,  Millett,                                                               
Foster, Pruitt  voted in  favor of the  adoption of  Amendment 1.                                                               
Representatives   LeDoux   and   Gruenberg  voted   against   it.                                                               
Therefore, Amendment 1 was adopted by a vote of 4-2.                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG  announced  his intention  to  move  to                                                               
rescind [the committee's action in  adopting Amendment 1] when HB
218 is brought up again.                                                                                                        
                                                                                                                                
2:06:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT,  referring to State v.  Silvera and State                                                           
v. Perez, inquired as to why  the Alaska Supreme Court denied the                                                             
state's petition for hearing, which  then allowed both defendants                                                               
to have a three-judge panel.                                                                                                    
                                                                                                                                
MR. SVOBODNY answered that the  Alaska Supreme Court did not give                                                               
the state  a reason, which  is totally within its  discretion, as                                                               
most  of the  time the  court simply  states it  will not  hear a                                                               
matter.                                                                                                                         
                                                                                                                                
2:08:21 PM                                                                                                                    
                                                                                                                                
DOUGLAS MOODY, Deputy Public  Defender, Criminal Division, Public                                                               
Defender Agency,  related that  he had missed  the first  part of                                                               
the hearing because  his office was unaware of  this [bill] until                                                               
the middle of  this hearing and the attorney  who actually worked                                                               
on these  two cases is  on sick  leave.  Therefore,  he requested                                                               
that  the agency  be allowed  to present  testimony at  a further                                                               
date when it could present  accurate and coherent information for                                                               
the committee.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  PRUITT stated  that  the  Public Defender  Agency                                                               
would definitely have an opportunity to speak at a later date.                                                                  
                                                                                                                                
2:10:18 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MILLETT  directed   attention  to  the  following                                                               
passage in  Deputy Attorney General  Svobodny February  11, 2014,                                                               
memorandum:                                                                                                                     
                                                                                                                                
     These combined cases  involve two noncitizens convicted                                                                    
     of  violent  felonies.   In  a  drunken  rage,  Silvera                                                                    
     stabbed a man in the  face with a knife after Silvera's                                                                    
     drunken  girlfriend began  a verbal  argument with  the                                                                    
     victim.   (The girlfriend  was casting slurs  about the                                                                    
     victim's  Native ethnicity).    Perez  severely beat  a                                                                    
     State's  witness in  Perez's then  pending felony  drug                                                                    
     case  when both  the  victim and  defendant  were in  a                                                                    
     State confinement facility.                                                                                                
                                                                                                                                
REPRESENTATIVE MILLETT  inquired as  to why both  defendants were                                                               
housed in the  same facility since they were clearly  a threat to                                                               
each other.   She said  she did  not believe such  situations are                                                               
normal.                                                                                                                         
                                                                                                                                
2:11:47 PM                                                                                                                    
                                                                                                                                
RONALD TAYLOR,  Deputy Commissioner, Office of  the Commissioner,                                                               
Department of Corrections (DOC), thanked  the sponsor of the bill                                                               
on   behalf  of   correctional   employees.     In  response   to                                                               
Representative Millett, Mr.  Taylor said he would  have to review                                                               
the records to  ascertain exactly where the  victim and defendant                                                               
were co-located  inside the Fairbanks Correctional  Center.  When                                                               
there is knowledge  that a defendant and victim in  the same case                                                               
are going  to be housed in  the same facility, they  would not be                                                               
housed in the  same place or be placed in  areas where they would                                                               
have access to each other.                                                                                                      
                                                                                                                                
2:12:39 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT  asked whether [the jail]  is informed who                                                               
a  victim and  defendant  is  when they  are  incarcerated.   She                                                               
opined that  housing [a victim  and defendant] together  sets the                                                               
stage  for  conflict,  and  thus   makes  it  dangerous  for  the                                                               
correctional  officers.   She questioned  whether a  policy or  a                                                               
possible legislative  fix is  required to  ensure so  victims and                                                               
defendants are not  housed in the same facility nor  do they have                                                               
access to each other in the facility.                                                                                           
                                                                                                                                
MR.  TAYLOR clarified  that victims  and defendants  do not  have                                                               
access to each  other during the same time period  when housed in                                                               
the same facility.   The facility, he related is  large enough to                                                               
segregate  the  victim  and  defendant to  ensure  there  is  not                                                               
conflict between them as that  places correctional employees in a                                                               
difficult  position.   He  advised  that  each facility  receives                                                               
information  from the  court and  when the  facility is  aware of                                                               
such a situation,  every precaution is taken to  be certain there                                                               
is no contact between the victim and the defendant.                                                                             
                                                                                                                                
2:14:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT  requested an explanation as  to why Perez                                                               
was in the same area and had contact with the witness.                                                                          
                                                                                                                                
MR.  TAYLOR  offered  to  research  the  issue  and  provide  the                                                               
committee with an answer.                                                                                                       
                                                                                                                                
2:15:18 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  questioned  whether  there  are  other                                                               
provisions  of law  DOC believes  should be  expanded to  include                                                               
correctional officers.                                                                                                          
                                                                                                                                
MR. TAYLOR responded that DOC  has not reviewed whether there are                                                               
any other areas of law as that  is a legal question.  However, he                                                               
said that DOC could review that.                                                                                                
                                                                                                                                
REPRESENTATIVE   GRUENBERG  requested   that   DOC  present   the                                                               
committee  with  any  requests [provisions  of  law  it  believes                                                               
should include correctional officers].                                                                                          
                                                                                                                                
2:17:48 PM                                                                                                                    
                                                                                                                                
TOM  WRIGHT, Staff,  Representative Mike  Chenault, Alaska  State                                                               
Legislature,  pointed out  that the  committee packet  includes a                                                               
memorandum  from  Kathleen   Strasbaugh,  Legal  Services,  dated                                                               
August  14,  2013.   Ms.  Strasbaugh  was charged  with  locating                                                               
statutes  that   cover  police  officers  but   not  correctional                                                               
officers.     The  memorandum  specifies  the   one  statute,  AS                                                               
12.55.155(c) (31),  she found that correctional  officers are not                                                               
covered the same as other uniformed officers.                                                                                   
                                                                                                                                
2:18:38 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PRUITT announced that HB 218 would be held over.                                                                 
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
2:18:52 PM                                                                                                                    
                                                                                                                                

Document Name Date/Time Subjects
HB 218 Sponsor Statement.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 ver. A.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 Proposed Amendment A.2.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 Legal Memo re Amendment A.2.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 Leg. Legal Memo.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 Supporting Document~AS 12.55.155.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 Fiscal Note Court System.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 Fiscal Note~DOC.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 Fiscal Note~Law.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 Fiscal Note~OPA.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
HB 218 Fiscal Note~Public Defender Agency.pdf HJUD 2/12/2014 1:00:00 PM
HB 218
CSHB 255 ver. C work draft.pdf HJUD 2/12/2014 1:00:00 PM
HB 255