Legislature(2013 - 2014)CAPITOL 120

02/21/2014 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 284 COMPACT FOR A BALANCED BUDGET TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                                                                                                                                
        HB 218-PENALTY: ASSAULT ON CORRECTIONAL EMPLOYEE                                                                    
                                                                                                                                
1:16:44 PM                                                                                                                    
                                                                                                                                
CHAIR  KELLER announced  the  first order  of  business would  be                                                               
HOUSE BILL  NO. 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."                                                                    
                                                                                                                                
1:17:29 PM                                                                                                                    
                                                                                                                              
ERNEST  PRAX,  Staff,  Representative Wes  Keller,  Alaska  State                                                               
Legislature,  advised  that  [on  2/12/14]  the  House  Judiciary                                                               
Standing  Committee  heard  HB  218  which  concerns  presumptive                                                               
sentencing for felony  offenses found in AS 12.55.125.   The bill                                                               
amends AS 12.55.155(c), which allows  felony sentencing courts to                                                               
impose  sentences above  the presumptive  range if  the defendant                                                               
has  five   previous  convictions   for  class   A  misdemeanors.                                                               
However, although two  crimes that are part of  a single criminal                                                               
episode,  such as  speeding, driving  while intoxicated  and then                                                               
hitting another vehicle count as  one prior conviction, there are                                                               
certain circumstances in which the  multiple crimes committed are                                                               
considered  separate  convictions.   The  legislation  would  add                                                               
committing  a  crime  against a  correctional  officer  to  those                                                               
considered a separate crime and  conviction even though there may                                                               
have  been  multiple crimes  committed  within  the criminal  one                                                               
event.   Amendment  1,  adopted on  February  12, 2014,  proposes                                                               
citizenship  as a  neutral  factor  when considering  presumptive                                                               
sentencing, he  remarked, and it  does not allow  an individual's                                                               
citizenship status to  be considered as a mitigating  factor.  He                                                               
referred to two superior court  cases [State v. Silvera and State                                                           
v.  Perez,  309  P.3d  1277 (Alaska  Ct.  App.  2013),  discussed                                                             
2/12/14 in  committee] which  allowed the  non-citizen defendants                                                               
to   appeal  their   sentences  based   upon  being   within  the                                                               
presumptive  range  and  the possibility  of  deportation.    The                                                               
defendants  argued  their  non-citizen status  was  a  mitigating                                                               
factor as to  why they should be sentenced  below the presumptive                                                               
sentences and their  cases were referred to  a three-judge panel.                                                               
The panel  considered the defendants' non-citizenship  status and                                                               
ruled [possible  deportation] was a  good reason to  sentence the                                                               
defendants below the  presumptive range, he stated.   Amendment 1                                                               
disallows using deportation as a mitigating factor.                                                                             
                                                                                                                                
1:22:01 PM                                                                                                                    
                                                                                                                                
MARGARET  STOCK,  Attorney  at  Law, Cascadia  Cross  Border  Law                                                               
Group,  described  her   legal  expertise  in  that   she  is  an                                                               
internationally  known  expert in  the  area  of immigration  and                                                               
citizenship  laws,  a  member  of  the  Alaska  Bar  Association,                                                               
admitted  before  the  United  States   District  Court  for  the                                                               
District of Alaska  and the 9th Circuit Court of  Appeals, and is                                                               
the 2013  National Immigration  Law Professor of  the Year.   She                                                               
advised she  is testifying personally  and in her capacity  as an                                                               
expert.   She said  she is testifying  in opposition  to [adopted                                                               
Amendment  1] which  would eliminate  the ability  of three-judge                                                               
sentencing  panels to  take  into  account potential  immigration                                                               
consequences to a criminal defendant.   The United States Supreme                                                               
Court in Padilla v. State  of Kentucky (2010) decided deportation                                                             
is an extremely harsh consequence, and said:                                                                                    
                                                                                                                                
     The   importance   of   accurate   legal   advice   for                                                                    
     noncitizens  accused  of  crimes has  never  been  more                                                                    
     important.  These  changes confirm our view  that, as a                                                                    
     matter  of  federal  law, deportation  is  an  integral                                                                    
     part, indeed  sometimes the most important  part of the                                                                    
     penalty that  may be  imposed on  noncitizen defendants                                                                    
     who plead guilty to specified crimes.                                                                                      
                                                                                                                                
MS. STOCK  pointed out  that the court  deemed it  very important                                                               
for  criminals  to  receive  accurate  immigration  legal  advice                                                               
regarding immigration  consequences.   The same  can be  said for                                                               
the Alaska State Legislature, which  she opined, is not receiving                                                               
accurate  legal  information  from the  memorandum  from  Richard                                                               
Svobodny, Deputy Attorney General, dated  February 11, 2014.  She                                                               
opined that  the memorandum does  not properly reflect  the state                                                               
of immigration law as almost  every sentence in the memorandum is                                                               
inaccurate   and  provides   incompetent  legal   advice.     The                                                               
memorandum fails to mention that  the United States Supreme Court                                                               
contradicts  the  memorandum;  lawyers writing  legal  memos  are                                                               
required to  cite contrary  authority in  regard to  the lawyer's                                                               
stated  position.   Furthermore,  this  legislation affects  non-                                                               
citizens  as well  as  family members  who  are non-citizens  and                                                               
naturalized citizens,  such as  military veterans  who naturalize                                                               
through   military  service,   all  of   which  could   face  de-                                                               
naturalization and  deportation due  to this  change to  the law.                                                               
She  maintained that  the memorandum  says without  [Amendment 1]                                                               
citizens are treated  differently, which is a  violation of equal                                                               
protection.  However,  there is no equal  protection problem with                                                               
current law as equal protection  does not mean that everyone must                                                               
be treated  exactly the same.   The  memorandum states:   "If the                                                               
defendants were  to receive at  least one year's  confinement for                                                               
their offenses, each  might be classified as  an aggravated felon                                                               
and so they might be  considered deportable."  Ms. Stock disputed                                                               
the  use of  the  term  "might" because  federal  law contains  a                                                               
laundry  list  of offenses  that  are  aggravated felonies  under                                                               
immigration law  and some  of them are  not felonies  under state                                                               
law  and some  of them  don't  require jail  sentences.   Federal                                                               
immigration law is "very complicated"  and when [an offense] is a                                                               
misdemeanor under Alaska  law but is deemed  an aggravated felony                                                               
under   federal  immigration   law,  then   defendants  must   be                                                               
classified as an  aggravated felon; it is not  discretionary.  In                                                               
such a situation, the defendant  is deprived of all opportunities                                                               
"for  the  most  part"  to contest  deportation,  unless  perhaps                                                               
he/she would  face torture if  deported to his/her  home country.                                                               
She pointed  out that in Padilla  v. State of Kentucky,  559 U.S.                                                             
356  (2010),  which is  binding  authority  in Alaska,  the  U.S.                                                               
Supreme Court  thoroughly discusses  [deportation] and  its harsh                                                               
consequences.   She  asserted  it  has long  been  a practice  in                                                               
Alaska,  even   among  prosecutors,   to  adjust   a  defendant's                                                               
sentences  to avoid  the harshest  consequences of  being a  non-                                                               
citizen.  However, the amendment  under consideration would treat                                                               
non-citizens and  some citizens  in an extraordinarily  harsh way                                                               
and it probably violates federal  law.  Ms. Stock emphasized that                                                               
she is  opposed to [Amendment  1] and is hopeful  the legislature                                                               
will reconsider  and obtain  an accurate  legal opinion  from the                                                               
Department of Law before moving forward.                                                                                        
                                                                                                                                
1:27:54 PM                                                                                                                    
                                                                                                                              
CHAIR KELLER  announced that the  committee does not plan  to act                                                               
on HB 218 today.                                                                                                                
                                                                                                                                
1:28:01 PM                                                                                                                    
                                                                                                                                
ANN   BENSON,   Supervising    Attorney,   Immigration   Project,                                                               
Washington   Defender  Association,   related  that   she  is   a                                                               
nationally  recognized expert  in the  conflict between  criminal                                                               
law and immigration law, a  long time immigration lawyer, and was                                                               
a member  of the  Alaska Bar.   She further  related that  she is                                                               
currently [staff supervisor] in  an immigration project funded by                                                               
the Washington  State Legislature to provide  immigration related                                                               
expertise to judges, prosecutors,  and defense attorneys who deal                                                               
with non-citizens  in the criminal justice  system in Washington.                                                               
She noted  that she  also regularly consults  with people  in the                                                               
Alaska  criminal justice  system.   She said  that she  concurred                                                               
with   Ms.  Stock's   testimony;  specifically   emphasizing  the                                                               
"erroneous"  nature of  the legal  memorandum  the committee  has                                                               
been  provided.   In  Padilla,  she pointed  out  that the  court                                                             
specifically  recognized it  is proper  for both  criminal courts                                                               
and  prosecutors to  factor immigration  consequences into  their                                                               
decisions as the  doctrine serves the best interest  of the state                                                               
as well  as the defendant.   Not only did the  U.S. Supreme Court                                                               
recognize  criminal  courts [factoring  immigration  consequences                                                               
into their decisions],  but they sanctioned it, she  stated.  She                                                               
opined  that [Amendment  1] interferes  with the  judge's ability                                                               
[to factor  in deportation], and  thus criminal courts  in Alaska                                                               
will  be  significantly impacted  in  their  ability to  exercise                                                               
their authority  and serve  justice.  She  then pointed  out that                                                               
according to the U.S. Supreme  Court and "other legal authority,"                                                               
it  is not  an equal  protection violation.   Ms.  Benson advised                                                               
that this  [legislation] impacts families in  Alaska because when                                                               
judges  consider   these  factors   they  consider  all   of  the                                                               
consequences that result  from their decisions.   She opined that                                                               
the appellate  court's [decision]  did not mandate  Alaska courts                                                               
to impose  special sentences for  non-citizen defendants,  or for                                                               
anyone, but  affirms it  is appropriate for  a judge  to consider                                                               
the relevant  factor [of deportation]  in [sentencing].   Drawing                                                               
from  her  work within  the  Washington  and Alaska  courts,  she                                                               
related  that  judges factor  in  matters  [such as  deportation]                                                               
daily and it  doesn't mean everyone will avoid  deportation.  She                                                               
maintains  that  the  U.S. Supreme  Court  mandated,  recognized,                                                               
sanctioned, specifically authorized, and  acknowledged that it is                                                               
appropriate  for courts  to  do as  instructed  by the  Appellate                                                               
Court in State v. Silvera in Alaska.                                                                                          
                                                                                                                                
1:33:36 PM                                                                                                                    
                                                                                                                              
REPRESENTATIVE MILLETT  inquired as  to whether  Ms. Stock  is in                                                               
favor of defendants remaining in  state prisons rather than being                                                               
deported  when the  defendant has  committed an  egregious crime,                                                               
such as murder or rape of a child.                                                                                              
                                                                                                                                
1:34:40 PM                                                                                                                  
                                                                                                                              
MS. STOCK opined that the  memorandum from the Attorney General's                                                               
office  has  caused a  misunderstanding  about  the law.    Under                                                               
federal  immigration   law  there   is  an   "aggravated  felony"                                                               
definition under  which Congress created  a list of  very serious                                                               
crimes, such  as murder, rape, and  sexual abuse of a  minor, and                                                               
not so serious crimes that  it considers aggravated felonies.  In                                                               
Silvera  and  Perez,  the defendants  were  convicted  of  lesser                                                           
offenses  that were  possibly defined  under federal  immigration                                                               
law as  aggravated felonies, although  they weren't at  the level                                                               
of murder, rape, or sexual abuse of  a minor.  She noted there is                                                               
a laundry  list of offenses considered  aggravated felonies under                                                               
federal immigration  law and  if the definition  of one  of those                                                               
offenses is  met, the defendant  is not eligible for  relief from                                                               
deportation.   She  highlighted that  in the  United States  if a                                                               
defendant  is convicted  of a  very serious  crime the  defendant                                                               
faces  the consequences  of the  criminal conviction,  serves the                                                               
full amount  of jail time,  is then released to  immigration, and                                                               
receives  a  hearing  with  an  immigration  judge  and  possible                                                               
deportation.                                                                                                                    
                                                                                                                                
1:37:04 PM                                                                                                                    
                                                                                                                              
MS. STOCK  reiterated that the  issue in Alaska is  not regarding                                                               
an immigrant  doing one day  less in  jail, but that  Alaska will                                                               
not recognize  [deportation as  a factor] and  will not  reduce a                                                               
sentence  by one  day in  order that  a defendant  is allowed  to                                                               
plead his/her  case before an  immigration judge.   Consequently,                                                               
after  convicted  [immigrant/non-citizen]  Alaskans  serve  their                                                               
criminal sentence they are denied  the opportunity to argue their                                                               
case before an immigration judge  and face automatic deportation,                                                               
she  opined.   She described  a possible  scenario of  a disabled                                                               
veteran receiving one day off  of his sentence by the three-judge                                                               
panel  which  then  allowed  him  to plead  his  case  before  an                                                               
immigration judge and argue that he  should not be deported.  She                                                               
noted the  judge could  still order the  veteran deported  but it                                                               
would not have been mandatory  for the immigration judge to order                                                               
him deported as it would have been  if he had spent the one extra                                                               
day in  jail.  She related  her impression that [Amendment  1] is                                                               
not  anti-immigrant but  rather  anti-Alaskan due  to the  number                                                               
families it  would break up.   In fact,  she opined that  it will                                                               
have a large negative impact on  Native Alaskans who are in mixed                                                               
families in  which one  member is  an immigrant  and one  is not.                                                               
Ms. Stock  described another  scenario, in  which a  bread winner                                                               
husband is  convicted of a  relatively minor crime, but  one that                                                               
is  considered  an aggravated  felony  under  immigration law  is                                                               
deported and leaves  his wife and children are  left destitute in                                                               
Alaska and have to  turn to the state for aid.   If the amendment                                                               
passes, immigrants will not have a  chance to [go before a three-                                                               
judge panel to plead why they should not be deported].                                                                          
                                                                                                                                
1:39:11 PM                                                                                                                    
                                                                                                                              
REPRESENTATIVE MILLETT expressed her thanks  to Ms. Stock for her                                                               
explanation and  advised the committee  to think  seriously about                                                               
Amendment 1.                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  thanked the experts who  have testified                                                               
and advised  the committee that  Ms. Stock is a  recent recipient                                                               
of a MacArthur Genius Award.                                                                                                    
                                                                                                                                
1:40:41 PM                                                                                                                  
                                                                                                                                
RUSSELL PRITCHETT,  Attorney at Law, Pritchett  & Jacobson, P.S.,                                                               
informed  the  committee he  has  practiced  immigration law  for                                                               
approximately 25  years, is  an active  member of  the Washington                                                               
and Alaska  Bar Associations,  is admitted  to the  U.S. District                                                               
Court  for  the  District  of  Alaska,  and  currently  practices                                                               
immigration law  in Washington.  He  advised he is opposed  to HB
218 [Amendment 1]  because a three-judge panel  should be allowed                                                               
to consider  the harsh collateral consequences  a deported parent                                                               
visits upon their U.S. citizen  children who remain in the United                                                               
States.   He referred to a  2010 report entitled, In  the Child's                                                             
Best  Interest,  published  by   the  University  of  California,                                                             
Berkley School of  Law, which in part found  that the deportation                                                               
of  a parent  of a  U.S. citizen  child creates  large secondary,                                                               
social, and economic affects and  negatively impacts the physical                                                               
and  mental health  of  the U.S.  citizen  children left  behind.                                                               
Most  such children  suffer  significant  behavioral changes  and                                                               
experience  disruption  in  schooling,   struggle  to  make  good                                                               
grades, or  consider dropping  out of  school.   Furthermore, Ms.                                                               
Stock  testified that  often  the deported  parent  is the  bread                                                               
winner in  the family  and that  parent's deportation  throws the                                                               
U.S. citizen  children into poverty,  which creates  a tremendous                                                               
burden on society as a whole.   Mr. Pritchett then reiterated his                                                               
opposition to HB 218 [Amendment 1].                                                                                             
                                                                                                                                
1:43:09 PM                                                                                                                    
                                                                                                                                
ARUNDEL  PRITCHETT, Staff  Attorney,  Alaska Immigration  Justice                                                               
Project, advised  she is testifying  in opposition  to [Amendment                                                               
1]  to  HB 218,  which  precludes  immigration consequences  from                                                               
being considered  at sentencing.   The aforementioned  would lead                                                               
to Alaskans being  permanently exiled from the  United States and                                                               
Alaskan families being  torn apart.  She clarified  that she used                                                               
the  term  "would"  be  permanently exiled  and  not  "could"  be                                                               
because a  non-citizen convicted  of an aggravated  felony, which                                                               
need  not be  a felony  under state  criminal law,  as Ms.  Stock                                                               
stated,  "will" be  deported.   She  then stressed  it  is not  a                                                               
discretionary matter  under federal immigration law.   Noting she                                                               
often  represents  crime  victims,  she  expressed  concern  that                                                               
victim's rights are included in  Alaska's sentencing criteria and                                                               
under  [Amendment  1] could  result  in  non-crime victims  being                                                               
exiled  from the  United  States.   She related  that  it is  not                                                               
uncommon in domestic  violence situations for the  victim not the                                                               
abuser to be  convicted of a crime following  a domestic violence                                                               
incident.      Preventing   the  consideration   of   immigration                                                               
consequences in sentencing could result  in the ultimate coup for                                                               
the  abuser of  a non-citizen  victim as  she could  not only  be                                                               
wrongfully convicted,  she opined,  but also  ultimately banished                                                               
from  the United  States with  no hope  of ever  returning.   Ms.                                                               
Pritchett  disagreed with  the  assertion  that consideration  of                                                               
immigration consequences and  sentencing unlawfully discriminates                                                               
against a  United States  citizen.  If  the aforementioned  is of                                                               
concern,   she  suggested   that   the   legislature  lower   the                                                               
presumptive minimum  sentence for certain  crimes from 1  year to                                                               
364 days,  which would allow  a state  judge to issue  a sentence                                                               
preventing designation  of a conviction  as an  aggravated felony                                                               
under federal  immigration law while being  equally applicable to                                                               
citizens and non-citizens alike.                                                                                                
                                                                                                                                
1:45:51 PM                                                                                                                    
                                                                                                                                
QUINLAN  STEINER,   Public  Defender,  Public   Defender  Agency,                                                               
Department of  Administration, stated Amendment 1  undermines the                                                               
presumptive sentencing  scheme put  in place  by statute  and the                                                               
sentencing   principles   articulated   in   the   Alaska   State                                                               
Constitution.     In   essence,   Amendment   1  eliminates   the                                                               
consideration  of  valid  sentencing  factors,  which  renders  a                                                               
sentence unfair.  The Attorney  General's memorandum is incorrect                                                               
as  it asserts  the rulings  in  [Silvera and  Perez] were  based                                                           
solely on the determination that  manifest injustice would result                                                               
by   subjecting  the   defendants   to   U.S.  immigration   law.                                                               
Furthermore, the  analysis is  the harsh  collateral consequences                                                               
which  is  significant when  reviewed  with  an equal  protection                                                               
analysis.  He opined that the  state focuses too narrowly on jail                                                               
time as  being the  assessment of  whether or  not a  sentence is                                                               
severe and does  not consider the impact of  the entire sentence.                                                               
He  explained   the  three-judge  panel  must   comply  with  all                                                               
sentencing criteria  and, by definition;  the sentences  will not                                                               
be  less severe  but will  be appropriate  for the  circumstance,                                                               
which  ultimately  promotes  uniformity.   He  described  a  case                                                               
similar   to   the   Silvera  case   wherein   harsh   collateral                                                             
consequences of  loss of medical  benefits could have  an extreme                                                               
consequence if a medical condition  is life threatening.  Denying                                                               
a  defendant the  opportunity  to  argue collateral  consequences                                                               
also  undermines  the   Alaska  State  Constitution's  principles                                                               
regarding   reformation,  deterrence,   and  protection   of  the                                                               
community, he  proffered as well  as could undermines  the health                                                               
of families.   He then stressed that just  because the collateral                                                               
consequence and  the non-statutory mitigator had  been proven and                                                               
had  been  taken  up  by  the  three-judge  panel,  it  does  not                                                               
necessarily  mean  the  defendant will  receive  departure  under                                                               
state law as the sentence as  a whole must comply with the Alaska                                                               
State  Constitutional  mandate.    The DOL's  memorandum  is  not                                                               
correct as it  implies that deportation and  its consequences are                                                               
not constitutionally  valid sentencing criteria, except  that the                                                               
impact  of  a given  sentence  and  its collateral  consequences,                                                               
specifically rehabilitation and deterrence,  is the very point of                                                               
sentencing and is  specifically articulated in case  law as being                                                               
valid  considerations.   Ultimately,  he  remarked,  there is  no                                                               
equal  protection  problem  in  the  U.S.  as  citizens  who  are                                                               
similarly  situated  and  subject  to  equally  harsh  collateral                                                               
consequences, whatever  they may be,  may obtain a referral  to a                                                               
three-judge  panel based  upon the  same  conclusion of  manifest                                                               
injustice.     He  explained  that  even   when  a  non-statutory                                                               
mitigator  is established  and there  is a  referral to  a three-                                                               
judge  panel, the  defendant must  argue the  ultimate conclusion                                                               
that  the  sentence  as  a   whole  is  manifestly  unjust.    He                                                               
reiterated  that  simply   proving  the  non-statutory  mitigator                                                               
exists and  should be considered  does not necessarily  result in                                                               
departure [from  the presumptive sentencing range],  which is the                                                               
analysis  under  state  law  sentencing  as  it  relates  to  the                                                               
constitution, he opined.                                                                                                        
                                                                                                                                
1:50:39 PM                                                                                                                    
                                                                                                                                
HEATHER  STENSON,  Staff  Attorney,  Alaska  Immigration  Justice                                                               
Project, informed  the committee  she is a  member of  the Alaska                                                               
Bar practicing  immigration law  in Anchorage.   She  related her                                                               
firm opposition  to [Amendment 1]  and agreement with  the points                                                               
previously   articulated  by   her  colleagues.     As   a  legal                                                               
professional, she conveyed that [Amendment  1] did not make sense                                                               
as  it  seeks  to  change  an  existing  careful  process.    She                                                               
explained that  to receive  other than  a presumptive  sentence a                                                               
judge  must carefully  screen a  case and  find, by  a very  high                                                               
standard,  that manifest  injustice would  result from  deviation                                                               
from a presumptive sentence and  refer it to a three-judge panel.                                                               
The series of strong procedural  safeguards is in place to ensure                                                               
that  sentences are  just.   However, excluding  consideration of                                                               
immigration status  from that process limits  the court's ability                                                               
to  do  what is  just,  she  opined.    Under immigration  law  a                                                               
conviction of a  year can be a life sentence  when a defendant is                                                               
sentenced  as  an  aggravated  felon  and  deported  because  the                                                               
defendant  would lose  his/her home  and family,  and the  family                                                               
would  lose  a  family  member; the  aforementioned  is  a  major                                                               
consequence that should be considered  in sentencing.  One of the                                                               
cases  that  started this  is  one  in  which  a man  received  a                                                               
sentence of 364  days rather than 365 days.   The 1 day reduction                                                               
meant that  he served his time  rather than serving his  time and                                                               
then being deported  and losing his entire life.   The court, she                                                               
opined,  should  be  able  to   consider  that.    However,  this                                                               
amendment eliminates the court's ability to do so.                                                                              
                                                                                                                              
1:53:08 PM                                                                                                                  
                                                                                                                                
JASON  BAUMETZ, Supervising  Staff  Attorney, Alaska  Immigration                                                               
Justice Project, noting he is a  member of the Alaska Bar with 10                                                               
years of  experience as  an immigration  attorney and  stated his                                                               
opposition to [Amendment  1].  Drawing from his  experience as an                                                               
immigration  attorney, he  opined that  it is  fair, appropriate,                                                               
and  essential that  sentencing  courts are  allowed to  consider                                                               
immigration  consequences  together  with  other  mitigating  and                                                               
aggravating factors in forming its sentencing decisions.                                                                        
                                                                                                                                
1:54:14 PM                                                                                                                    
                                                                                                                                
RICHARD ALLEN,  Director, Office  of Public  Advocacy, Department                                                               
of  Administration,  remarked  that although  previous  testimony                                                               
addressed [Amendment 1] issues, the  issue is allowing courts the                                                               
authority to evaluate  a specific case and  consider the totality                                                               
of the circumstances before rendering  a sentence.  He emphasized                                                               
that it  is important to give  judges that sort of  discretion in                                                               
these cases.                                                                                                                    
                                                                                                                                
1:55:35 PM                                                                                                                    
                                                                                                                                
ANNIE  CARPENETI,  Assistant  Attorney  General,  Legal  Services                                                               
Section, Department of Law (DOL),  clarified that although she is                                                               
not an expert in immigration  law, Assistant Attorney General Ann                                                               
Black, Office  of Special Prosecutions  & Appeals  (OSPA), (DOL),                                                               
does  know  immigration  law  and  can  answer  questions.    Ms.                                                               
Carpeneti   then  defended   Deputy  Attorney   General  2/11/14,                                                               
memorandum to  House Speaker Mike  Chenault stating it was  not a                                                               
legal memorandum,  or a treatise  on immigration law  or intended                                                               
to describe  nuances in immigration  law.  The  memorandum rather                                                               
was  to  summarize  a  proposed amendment  and  the  reasons  DOL                                                               
supports the amendment.   Ms. Carpeneti agreed with  Ms. Stock in                                                               
that a  naturalized citizen  could be convicted  of a  crime that                                                               
may result  in a de-naturalization  procedure.   She acknowledged                                                               
that  Mr. Steiner  and other  witnesses presented  good testimony                                                               
regarding Alaska's sentencing law.   Ms. Carpeneti explained that                                                               
the legislature  has adopted presumptive sentencing  ranges for a                                                               
defendant  convicted  of  a  crime in  Alaska.    Furthermore,  a                                                               
sentencing court has the authority  to increase a sentence to the                                                               
maximum range  or decrease the sentence  within the [presumptive]                                                               
range  for factors  in aggravation  and mitigation  if proven  by                                                               
clear and  convincing evidence by  the party proposing them.   If                                                               
there  are no  statutory  aggravators or  mitigators provided  in                                                               
Alaska's  law,  then defendant  has  the  ability to  prove  that                                                               
manifest injustice  will occur as a  result of a sentence  in the                                                               
presumptive range  for factors not  set out in statute,  and thus                                                               
the case should  be sent to a three-judge panel  to consider that                                                               
factor, she  opined.   The three-judge panel  has the  ability to                                                               
sentence  a defendant  to any  term authorized  in statute,  from                                                               
zero to the maximum.                                                                                                            
                                                                                                                                
1:58:42 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI  recalled  Mr.   Steiner's  testimony  that  every                                                               
criminal sentence  whether presumptive, mitigated,  or aggravated                                                               
must be based on criteria set  out in AS 12.55.005, also known as                                                               
the "chain  of criteria," that  was provided in the  Alaska State                                                               
Constitution and adopted  by the Alaska Supreme  Court many years                                                               
ago.   The  factors are  rehabilitation, deterrence  of self  and                                                               
others,  affirmation of  community  norms,  and where  necessary,                                                               
isolation of someone to protect the  public as well as a victim's                                                               
rights.    Ms.  Carpeneti  explained that  avoiding  control  and                                                               
influencing  the application  of federal  immigration law  is not                                                               
listed  in State  of  Alaska  v. Chaney,  [477  P.2d 441,  Alaska                                                             
1970], in Alaska Statute, or  the Alaska State Constitution.  She                                                               
offered  that  Amendment  1 simply  provides  that  whatever  the                                                               
federal  government  may  or  may  not do  to  a  defendant  when                                                               
sentenced under  state law  should not be  considered by  a state                                                               
sentencing court.   She then  expressed concern with  Ms. Stock's                                                               
testimony  that  under federal  law  once  a defendant  has  been                                                               
convicted as an aggravated felon,  the defendant will be deported                                                               
and there is little discretion.   Drawing from conversations with                                                               
Ms.  Black and  others, Ms.  Carpeneti opined  there is  actually                                                               
much discretion  within the Department  of Justice as  to whether                                                               
or not it  deports a defendant.  She then  referred to memorandum                                                               
DOL received  from an Immigration  and Customs  Enforcement (ICE)                                                               
attorney that  lists various factors ICE  attorneys consider when                                                               
deciding whether to initiate  deportation proceedings involving a                                                               
person who  has been  convicted of an  aggravated felony.   These                                                               
factors  include  specific  emphasis   on  serving  in  the  U.S.                                                               
military, whether  an illness is  involved, and  "various items".                                                               
Unfortunately,  she  shared,  even   though  ICE  attorneys  have                                                               
provided DOL  with advice, the  ICE attorneys do not  testify and                                                               
will not  be put on  the record regarding factors  they consider.                                                               
She  mentioned  that  DOL  has  memorandums  from  ICE  attorneys                                                               
available [for the committee] that may be helpful.                                                                              
                                                                                                                                
2:01:31 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI reiterated  that [the  factors used  to determine]                                                               
whether  or   not  the  federal  government   will  exercise  its                                                               
discretion  to determine  if a  deportable  defendant should,  or                                                               
should not, be  deported is not in the  Alaska State Constitution                                                               
or Alaska  Statutes.   Alaska's sentencing  laws are  designed to                                                               
promote  reasonable uniformity  in sentencing  for criminal  acts                                                               
that are  similar, and  whether or not  a defendant  performing a                                                               
[criminal] act similar to a  deportable defendant is difficult to                                                               
predict.    As Ms.  Stock  testified,  federal law  dealing  with                                                               
immigration   status  is   very  complicated.     Ms.   Carpeneti                                                               
emphasized that  the committee should seriously  consider whether                                                               
attorneys in  DOL who are  district attorneys and not  experts in                                                               
immigration law  should be dealing  with these issues.   Criminal                                                               
attorneys in DOL  enforce the laws and  sentences the legislature                                                               
establishes   under  Alaska   Statute   and   the  Alaska   State                                                               
Constitution.   She  then expressed  concern with  safety issues.                                                               
In Silvera, a non-citizen, was  convicted of stabbing a person in                                                             
the face, sent to a three-judge  panel, and sentenced to 364 days                                                               
to avoid being  classified as an aggravated felon.   The issue is                                                               
not  that  Mr.  Silvera  received   one  day  less  when  another                                                               
defendant  would have  been  sentenced within  the  range of  1-3                                                               
years,  the  issue  is  the  lack of  any  period  of  supervised                                                               
probation.   The fact  that Mr. Silvera  was not  supervised, she                                                               
opined, is a question of  public safety that should be addressed.                                                               
Ms. Carpeneti informed the committee  of a current case on appeal                                                               
wherein  the sentencing  court did  not send  the case  of a  man                                                               
convicted of attempted  sexual abuse of a minor  to a three-judge                                                               
panel.    The  defendant  claimed   at  sentencing  that  he  was                                                               
potentially deportable  and should  be sentenced  to a  period of                                                               
time that  would avoid  any period  of supervision,  sex offender                                                               
treatment,  or  various [programs]  the  state  [offers] to  help                                                               
defendants who  are transitioning into  life after a  sentence is                                                               
served, she related.                                                                                                            
                                                                                                                                
2:04:57 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI   stated  her  agreement   with  Ms.   Stock  that                                                               
immigration law  is very  complex, which  she believes  makes the                                                               
case for  Amendment 1 in that  criminal courts should not  try to                                                               
determine if a sentence within  the presumptive range would raise                                                               
issues of federal deportation rather  state law should be applied                                                               
in  a  neutral manner  and  not  factor  in [deportation].    Ms.                                                               
Carpeneti  stated  her  disagreement  with  a  local  newspaper's                                                               
description of [Amendment  1] as an anti-immigration  law and she                                                               
explained that [Amendment  1] is intended to  apply these factors                                                               
as  neutral  for  every  person  when  sentencing  for  the  same                                                               
criminal act.                                                                                                                   
                                                                                                                                
2:05:50 PM                                                                                                                  
                                                                                                                                
REPRESENTATIVE LYNN  related his  great confidence in  the advice                                                               
he has  received from DOL over  the years.  He  acknowledged that                                                               
everyone isn't an  expert on all areas [of law],  but opined that                                                               
DOL has resources  available to call upon  for immigration issues                                                               
or any other issue.                                                                                                             
                                                                                                                                
2:06:45 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG recalled  Ms. Carpeneti's  comment that                                                               
immigration  is "a  very  specific and  specialized  area of  the                                                               
law."                                                                                                                           
                                                                                                                                
2:07:03 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI clarified  that  her  words were,  "it  is a  very                                                               
complicated  area.     In  further  response   to  Representative                                                               
Gruenberg, advised that  DOL does not have a  dedicated expert in                                                               
immigration law,  but Ms. Black  has spent a  lot of time  in the                                                               
last several years dealing with such issues.                                                                                    
                                                                                                                                
2:07:49 PM                                                                                                                  
                                                                                                                                
REPRESENTATIVE   GRUENBERG  questioned   whether  Ms.   Carpeneti                                                               
believes one  person would  be enough  to handle  the anticipated                                                               
case load  with Amendment 1 or  would more staff be  necessary to                                                               
handle immigration  cases.  He  then pointed  out that HB  218 is                                                               
not  referred to  the House  Finance  Committee.   Representative                                                               
Gruenberg clarified  that he is  asking whether DOL  could handle                                                               
the  additional   sentencing,  as   potentially  there   will  be                                                               
significant  appellate  and  constitutional  questions  with  the                                                               
passage of Amendment 1.                                                                                                         
                                                                                                                                
MS. CARPENETI  stated she has  incredible faith in  the attorneys                                                               
in  the  Office of  Special  Prosecutions  & Appeals  (OSPA)  and                                                               
advised she does not have the answer to resource issues.                                                                        
                                                                                                                                
CHAIR  KELLER related  his understanding  the Ms.  Carpeneti said                                                               
DOL has the personnel to handle the analysis of this bill.                                                                      
                                                                                                                                
2:10:26 PM                                                                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG,  referring  to the  testimony  of  Ms.                                                               
Benson and Ms.  Stock's allegations of erroneous  legal advice in                                                               
the memorandum,  queried if Ms.  Carpeneti would like  to respond                                                               
to Ms.  Benson and Ms.  Stock's specific allegation of  the House                                                               
Judiciary  Standing Committee  being  unintentionally mislead  by                                                               
the 2/11/14 memorandum from Deputy Attorney General Svobodny.                                                                   
                                                                                                                                
MS.  CARPENETI  responded that  Ms.  Stock  and Ms.  Benson  were                                                               
criticizing the  memorandum as if  it were a nuanced  legal brief                                                               
dealing  with  legal  issues,  although  it  was  simply  a  memo                                                               
describing  a bill,  an amendment,  and a  concern DOL  has about                                                               
sentencing.   She opined that  DOL's OSPA attorneys  could answer                                                               
all of the questions raised by  Ms. Stock and [Ms. Benson] as the                                                               
issue is  simply whether  or not  the possibility  of deportation                                                               
should be a consideration for  state court judges when sentencing                                                               
defendants  for  the  commission  of  crimes.    In  response  to                                                               
Representative Gruenberg,  Ms. Carpeneti  advised that  Ms. Black                                                               
is very familiar with the Padilla case and is online.                                                                       
                                                                                                                                
2:12:27 PM                                                                                                                  
                                                                                                                                
REPRESENTATIVE FOSTER  queried if  Ms. Carpeneti  had a  sense of                                                               
how many additional cases would come forth due to [Amendment 1].                                                                
                                                                                                                                
MS.  CARPENETI opined  that after  any  litigation regarding  the                                                               
validity  of  the  law  that  is  passed  would  result  in  less                                                               
litigation.  She deferred to Ms. Black.                                                                                         
                                                                                                                                
2:13:15 PM                                                                                                                    
                                                                                                                              
CHAIR KELLER  interjected that  it appeared odd  to him  that the                                                               
legislature is discussing subservience  to an immigration judge's                                                               
decision on  deportation that is  future.  He questioned  why the                                                               
aforementioned  even  has  to be  taken  into  consideration  and                                                               
whether  it's   tied  into  manifest  injustice.     Is  manifest                                                               
injustice a gateway  to the three-judge panel for  more than just                                                               
immigration.                                                                                                                    
                                                                                                                                
MS.  CARPENETI responded  there are  various factors  not in  the                                                               
statutory mitigators  that a  defendant can  raise to  the three-                                                               
judge panel  if a  defendant has proven  to the  sentencing court                                                               
that manifest  injustice would occur  from a sentence  within the                                                               
presumptive range.                                                                                                              
                                                                                                                                
2:15:24 PM                                                                                                                    
                                                                                                                                
ANN BLACK,  Assistant Attorney General,  Appeals Unit,  Office of                                                               
Special Prosecutions  & Appeals (OSPA), Department  of Law (DOL),                                                               
stated  she has  30  plus years  of  legal experience,  including                                                               
practicing law  in the Alaska  state courts, federal  courts with                                                               
district  courts,  and  federal  circuit  courts  of  appeals  in                                                               
federal  habeas  [corpus]  claims.    She  related  that  she  is                                                               
[admitted to  practice before] the  United States  Supreme Court,                                                               
and   prior   that  a   former   Judge   Advocate  General   with                                                               
approximately 10 years  in the military courts.   She agreed with                                                               
Ms.  Carpeneti   that  the   Deputy  Attorney   General  Svobodny                                                               
memorandum is not a comprehensive  treatise with regard to Alaska                                                               
constitutional   law,  Alaska   criminal  law   or  federal   and                                                               
immigration  law.     Furthermore,  it  in  no   way  covers  the                                                               
complexities of  federal immigration  law.   She opined  that the                                                               
legislation  is  designed  to  address  the  fact  that  Alaska's                                                               
criminal  sentencing judges  and district  attorneys do  not have                                                               
the  expertise  [in  immigration  law] of  Ms.  Stock  and  prior                                                               
witnesses.    Alaska's  criminal judges  are  making  assumptions                                                               
about federal law  and the state's district attorneys  are not in                                                               
a  position  to  adequately   educate  Alaska's  criminal  judges                                                               
regarding the actual consequences  and intricacies of immigration                                                               
law, she further opined.                                                                                                        
                                                                                                                                
2:17:44 PM                                                                                                                  
                                                                                                                                
MS. BLACK remarked that the panel  of three state judges is asked                                                               
to  answer  extremely  weighty  policy  questions  and  determine                                                               
important decisions while  "dabbing" in an area  of [federal] law                                                               
in  which they  lack sufficient  knowledge.   With regard  to the                                                               
Padilla  case,  Ms. Carpeneti  took  exception  with Ms.  Stock's                                                             
interpretation  because,  while  the   quotes  she  read  to  the                                                               
[committee]  are quotes  from the  case, they  were taken  out of                                                               
context and omit the fact that  the U.S. Supreme Court in Padilla                                                             
decided  the  ability  of a  sentencing  judge  to  intentionally                                                               
control  the  outcome  of  an  immigration  proceeding  based  on                                                               
criminal conduct  does not exist.   In Padilla, she  pointed out,                                                             
the Supreme  Court went out of  its way to say  that while judges                                                               
previously [controlled  the outcome of an  immigration proceeding                                                               
based  on  criminal conduct]  Congress  determined  it no  longer                                                               
wanted judges doing that.   Within the federal context, the claim                                                               
that  federal law  permits judges  to impose  a sentence  for the                                                               
purpose of affecting deportation  is not accurate, she explained,                                                               
as   every  federal   court  that   has   addressed  the   issue,                                                               
specifically the following Courts of  Appeal: 2nd, 5th, 8th, 9th,                                                               
10th, 11th, and  D.C. circuits, have all held  that attempting to                                                               
assist  a defendant  avoid deportation  is not  proper sentencing                                                               
criteria.    Ms.  Black explained  [Amendment  1]  provides  that                                                               
Alaska  is  indifferent  to  the  federal  government  as  Alaska                                                               
applies its  sentencing and criminal justice  criteria regardless                                                               
of what the  federal government's policy is, will be,  or may be.                                                               
To that extent,  she noted, [Amendment 1] is  not regarding being                                                               
subservient to  the federal government, but  is instead regarding                                                               
independence from the federal government.                                                                                       
                                                                                                                                
2:20:41 PM                                                                                                                    
                                                                                                                                
MS.  BLACK said  prior discussions  regarding certain  defendants                                                               
automatically being deported is  problematic because "it" started                                                               
too far down the system in  order for defendants like Mr. Silvera                                                               
or Mr. Perez  to be considered deportable  under federal statutes                                                               
as they  would have to meet  the criteria of having  committed an                                                               
aggravated felony because they committed  a crime of violence for                                                               
which  a sentence  of  one year  or  more is  imposed.   In  both                                                               
Silvera and  Perez, the defendants  requested a  shorter sentence                                                           
than  a [U.S.]  citizen  would  have received  so  they would  no                                                               
longer be qualified  as deportable, and therefore  would not face                                                               
federal  immigration judges.   She  noted  disagreement with  the                                                               
earlier  remarks that  this isn't  about "people  getting out  of                                                               
jail  earlier,"  and  proffered  that  the  prior  discussion  is                                                               
regarding  defendants  pleading  their cases  before  three-judge                                                               
panels  and requesting  the  judges not  impose  what the  Alaska                                                               
Legislature  determined should  be  presumptively  imposed.   The                                                               
aforementioned is  desired in order that  federal immigration law                                                               
dictates their sentences.  Ms.  Black recalled a prior suggestion                                                               
wherein the legislature changes  the [preemptive sentences] by at                                                               
least  one  day in  order  that  sentences  fall outside  of  the                                                               
federal  definition of  a  crime of  violence  and an  aggravated                                                               
felony.  In  essence, such a suggestion is  requesting the Alaska                                                               
Legislature  allow   the  federal  government  to   dictate  what                                                               
appropriate  [state]  sentences  should  be,  she  opined.    She                                                               
submitted  that it  is  not an  appropriate  consideration for  a                                                               
three-judge panel or for the state legislature.                                                                                 
                                                                                                                                
2:23:08 PM                                                                                                                    
                                                                                                                                
MS.  BLACK   explained  that   rehabilitating  a   defendant,  or                                                               
protecting the  public from future  misconduct of  the defendant,                                                               
or adequately  expressing Alaskan  citizen's condemnation  of the                                                               
defendant's behavior.   She stated  that this  legislation treats                                                               
all  defendants equally  in Alaska's  criminal courts,  such that                                                               
they  all   will  be   afforded  the   same  benefits   and  same                                                               
consequences.   The consequences defendants  may or may  not face                                                               
in the  federal system  should not  be relevant  as to  whether a                                                               
particular state sentence  will be effective in  terms of things.                                                               
Under State  of Alaska  v. Chaney, [477  P.2d 441,  Alaska 1970],                                                             
the  Alaska  Statutes, and  the  Alaska  State Constitution,  the                                                               
sentencing  courts  are  requested  to  decide  effectiveness  of                                                               
sentences and  this legislation ensures uniformity  which reduces                                                               
guesswork.    Currently,  she  opined,  the  state's  three-judge                                                               
panels are  operating blindly and the  state's district attorneys                                                               
cannot   provide  them   full   well-rounded  [immigration   law]                                                               
guidance.    Although  DOL  has  requested  assistance  from  ICE                                                               
attorneys and enforcement officers,  the department has been told                                                               
that "we  cannot make  advisory opinions and  we cannot  tell you                                                               
what will  be the consequence."   Over the past three  years, Ms.                                                               
Black conveyed,  she has been  in contact with ICE  officials who                                                               
tell her  "I don't  understand why  your state  sentencing courts                                                               
are worried about imposing a sentence  that may or may not result                                                               
in deportation.   The way our system operates is  we presume that                                                               
states will  impose sentences based  on state concerns  and state                                                               
criteria  without  regard  to  the   federal  government."    She                                                               
explained that only after the  state has completely concluded its                                                               
interest  in  a  defendant  will ICE  attorneys  and  immigration                                                               
officials  begin their  process with  the defendant.   The  state                                                               
[criminal]  system and  the federal  immigration  system are  two                                                               
very independent  systems and  just because  one system  takes up                                                               
its work  after another does  not make one system  subservient or                                                               
dependent on the other system.   Thus, [Amendment 1] ensures that                                                               
Alaskan courts  are independent of  federal immigration  law, she                                                               
opined.                                                                                                                         
                                                                                                                                
2:25:27 PM                                                                                                                  
                                                                                                                                
MS. BLACK  related that this  legislation protects the  rights of                                                               
crime  victims as  it ensures  victims  that Alaska's  sentencing                                                               
courts  will not  treat  their victimization  as  less worthy  of                                                               
redress  just because  the assailant  is not  a U.S.  citizen and                                                               
subject to  deportation.   She noted  that [Amendment  1] fosters                                                               
rehabilitation as Alaska's courts  consistently turn to suspended                                                               
impositions of  sentences, which  works as  both the  "carrot and                                                               
the  stick"  to   ensure  that  a  released   defendant  is  held                                                               
accountable   in    attending   and   complying    with   ordered                                                               
rehabilitative  treatment  and  also conforms  its  behavior  [to                                                               
society's standards].   Under the federal  system, suspended time                                                               
is figured  into whether or  not a  person has committed  a crime                                                               
for which  a sentence of  a year or more  has been imposed.   Ms.                                                               
Black explained that whether a  state's definition of a crime and                                                               
a state's sentence  for a crime qualifies as a  crime of violence                                                               
and potentially  an aggravated  felony are "terms  of art."   The                                                               
federal government  does not rely  on Alaska's definitions  as it                                                               
defines a crime  of violence in an extremely specified  way.  For                                                               
instance,  there  is  federal  case law  that  includes  the  9th                                                               
Circuit in  which a  person can  shoot a gun  at a  building they                                                               
know to be occupied and that  action is not considered a crime of                                                               
violence  under the  federal immigration  code, she  noted.   Ms.                                                               
Black describes [immigration law] as  a complex system with often                                                               
counter-intuitive  "terms of  art" of  which Alaska's  judges are                                                               
not  experts.   She offered  that the  state should  not ask  its                                                               
judges to divert state resources  by diverting judge's dockets to                                                               
determine whether it is appropriate  for an offender to remain in                                                               
the   country.     Alaska's  judges   are  taxed   with  deciding                                                               
appropriate [state] sentences to  ensure offenders will no longer                                                               
re-offend or  pose a  threat to  the public  and ensure  that the                                                               
rights of Alaskan victims are protected, she further opined.                                                                    
                                                                                                                                
2:28:37 PM                                                                                                                  
                                                                                                                                
MS. BLACK  posited that  many of the  comments in  the memorandum                                                               
had already been vetted by  the National Association of Attorneys                                                               
General (NAAG) for their legal  accuracy.  Furthermore, while the                                                               
memorandum [was never  intended to] constitute a  treaties, it is                                                               
not  inaccurate and  does not  present an  incorrect view  of the                                                               
law.   In  response  to  Chair Keller,  Ms.  Black confirmed  her                                                               
availability and stated she has  performed extensive research and                                                               
briefing with  regard to the  interplay of  Alaska constitutional                                                               
and criminal law as well as federal law.                                                                                        
                                                                                                                                
2:30:34 PM                                                                                                                  
                                                                                                                                
CHAIR KELLER announced that HB 218 would be set aside.                                                                          
                                                                                                                                
2:30:37 PM                                                                                                                    
The committee took an at-ease from 2:30 to 2:35 p.m.                                                                            
[Chair Keller passed the gavel to Vice Chair Lynn]                                                                              
                                                                                                                                
2:35:36 PM                                                                                                                  
                                                                                                                              
VICE CHAIR LYNN  announced that the next order  of business would                                                               
be HOUSE BILL NO. 284, "An  Act relating to an interstate compact                                                               
on a balanced federal budget."                                                                                                  
                                                                                                                                

Document Name Date/Time Subjects
HB 218~DOC Response to Perez Assault of State Witness Question.pdf HJUD 2/21/2014 1:00:00 PM
HB 218
HB 218 Northwest Immigrant Right Project Letter of Opposition to Amendment A.2.pdf HJUD 2/21/2014 1:00:00 PM
HB 218
HB 284 Corrected Sectional Analysis.pdf HJUD 2/21/2014 1:00:00 PM
HB 284
HB 284 One Page Overview.pdf HJUD 2/21/2014 1:00:00 PM
HB 284
HB 284 Feb. 21 Goldwater Presentation.pdf HJUD 2/21/2014 1:00:00 PM
HB 284