Legislature(2013 - 2014)CAPITOL 120

04/04/2014 01:00 PM House JUDICIARY


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01:09:50 PM Start
01:10:18 PM Confirmation Hearing(s)|| Board of Governors of the Alaska Bar
01:16:28 PM SB187
01:42:57 PM HB282
02:15:59 PM SB64
03:26:54 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 187 CONFIDENTIAL INFORMATION: MISCONDUCT, RLS TELECONFERENCED
Heard & Held
+= SB 64 OMNIBUS CRIME/CORRECTIONS/RECIDIVISM BILL TELECONFERENCED
Heard & Held
+ Confirmation Hearing: TELECONFERENCED
-Board of Governors of the Alaska Bar Association
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 282 LANDLORD AND TENANT ACT TELECONFERENCED
Heard & Held
        SB 187-CONFIDENTIAL INFORMATION: MISCONDUCT, RLS                                                                    
                                                                                                                                
1:16:28 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER announced  that the next order of  business would be                                                               
CS FOR  SENATE BILL NO.  187(JUD)(title am), "An Act  relating to                                                               
the  crime of  misconduct involving  confidential information  in                                                               
the  first degree;  amending Rule  16, Alaska  Rules of  Criminal                                                               
Procedure; amending  Rule 8, Alaska  Child in Need of  Aid Rules;                                                               
and providing for an effective date."                                                                                           
                                                                                                                                
[Before the committee was CSSB 187(JUD)(title am).]                                                                             
                                                                                                                                
1:16:44 PM                                                                                                                    
                                                                                                                                
RYNNIEVA  MOSS,   Staff,  Senator  John  Coghill,   Alaska  State                                                               
Legislature,  directed attention  to a  proposed House  committee                                                               
substitute (HCS) for committee substitute  (CS) for SB 187, found                                                               
in the committee packet.  Ms. Moss  said SB 187 was the result of                                                               
an incident  last year in  Alaska in  which the videotaping  of a                                                               
confidential interview  of a  sexual abuse case  ended up  in the                                                               
hands  of  relatives  and  was   subsequently  broadcast  on  the                                                               
Internet.   The proposed legislation would  amend Alaska Statutes                                                               
and  three  court  rules.     Firstly,  AS  11.76.113  Misconduct                                                               
involving confidential information in  the first degree, would be                                                               
amended  to  add  an  offense  for  a  person  who  publishes  or                                                               
distributes  an audio  or video  recording of  an interview  of a                                                               
child  for  a  criminal  or child  protection  investigation,  or                                                               
records  of  a  medical  examination  of  a  victim  or  a  minor                                                               
conducted for  the purposes of  an investigation under  AS 11.41,                                                               
or a child protection  investigation, including photographs taken                                                               
during the  examination.   Exceptions in  proposed section  2 are                                                               
for publishing  or distributing with  a court order, with  a rule                                                               
of court, or a state or federal  law.  There is also an exception                                                               
for   training   law   enforcement,   prosecutors,   or   defense                                                               
counselors, if the  minor or victim's identity is  concealed.  In                                                               
addition, this  information could be  utilized with a  release of                                                               
consent  from  an adult  victim,  an  emancipated minor,  or  the                                                               
minor's parent or  guardian if the parent or guardian  is not the                                                               
perpetrator.                                                                                                                    
                                                                                                                                
MS.  MOSS continued  to  proposed section  3,  which amends  rule                                                               
16(d)(3) of Alaska Rules of  Criminal Code, to include this crime                                                               
as  evidence  that cannot  be  in  the  physical custody  of  the                                                               
defendant.                                                                                                                      
                                                                                                                                
1:19:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN  moved to adopt the  proposed House committee                                                               
substitute  (HCS)  for  CSSB   187(JUD)(title  am),  Version  28-                                                               
LS1145\P, Strasbaugh, 4/3/14, as the  work draft.  There being no                                                               
objection, Version P was before the committee.                                                                                  
                                                                                                                                
MS. MOSS directed attention to page  4 of the work draft, stating                                                               
that section 3  of the proposed legislation  emphasizes that when                                                               
defendants  do not  have counsel  they have  physical custody  of                                                               
this   [confidential]  information,   but  if   they  share   the                                                               
information, it is  punishable by contempt of  court and requires                                                               
that the court inform the  defendant that sharing the information                                                               
constitutes a criminal offense.                                                                                                 
                                                                                                                                
MS. MOSS explained that section 4  adds to court rule 16(d), that                                                               
when  evidence is  submitted  to  the court,  it  must  be in  an                                                               
envelope sealed and marked "confidential."   She advised that the                                                               
sponsor has worked closely with  the Department of Law (DOL), the                                                               
Public Defender  Agency, (PDA), the Department  of Administration                                                               
(DOA), and the  Office of Public Advocacy (OPA),  DOA, on section                                                               
5, which  amends Direct  Court Rule  Amendment, Rule  (8), Alaska                                                               
Child in  Need of Aid Rules  (CINA).  The purpose  of this change                                                               
is to ensure that the information  is confidential and out of the                                                               
reach  of the  defendant,  but  to also  have  access to  medical                                                               
records when  medical records are  needed for  medical treatment.                                                               
For example,  in a child abuse  case where a child  is physically                                                               
injured  by  a  parent  and  medical records  are  needed  for  a                                                               
physician  to treat  the child.   Section  5 also  "mirrors" rule                                                               
(16), by  informing the "pro  se parent" that if  the information                                                               
is shared  with anyone, that  would constitute a  criminal crime,                                                               
and  allows for  confidential filing  in an  envelope sealed  and                                                               
marked "confidential."                                                                                                          
                                                                                                                                
MS.  MOSS further  explained the  proposed legislation  addresses                                                               
evidence  for  crimes  under  AS  11.41.410-11.41.450  which  are                                                               
sexual assault in  the first, second, third,  and fourth degrees,                                                               
sexual abuse of  a minor in the first, second,  third, and fourth                                                               
degrees, and  incest.  She  directed attention to  the conceptual                                                               
amendment which  addressed the  language of the  bill on  page 4,                                                               
line 30.                                                                                                                        
                                                                                                                                
1:22:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN  moved to adopt  Conceptual Amendment  [1] to                                                               
Version   P,  which   read  as   follows  [original   punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     Page 4, line 30, after the word "records"                                                                                  
     Insert:                                                                                                                    
     "that are also evidence under AS 11.41.410-11.41.450"                                                                    
                                                                                                                                
      Page 4, line 31-Page 5, line 1, after the words "AS                                                                       
     47.10.011 or AS 47.14.300":                                                                                                
     Delete:                                                                                                                    
      "that is also evidence for an investigation under AS                                                                      
     11.41.410-11.41.450"                                                                                                       
                                                                                                                                
1:23:18 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER objected for the purpose of discussion.                                                                            
                                                                                                                                
MS. MOSS stated  Conceptual Amendment 1 was  suggested by Quinlan                                                               
Steiner, director of the Public  Defender Agency, for the purpose                                                               
of clarifying  that the  video and  audio recordings  and medical                                                               
records  are  only  connected  to  investigations  involving  the                                                               
aforementioned crimes.                                                                                                          
                                                                                                                                
REPRESENTATIVE  LEDOUX read  from the  proposed HCS,  on page  4,                                                               
beginning on line [14] as follows:                                                                                              
                                                                                                                                
     The  clerk   shall  inform   the  defendant   ...  that                                                                    
     violation of  the order issued under  this paragraph is                                                                    
     punishable   as  contempt   of  court   and  may   also                                                                    
     constitute a criminal [offense].                                                                                           
                                                                                                                                
REPRESENTATIVE  LEDOUX   questioned  why   not  say,   "and  also                                                               
constitutes a criminal [offense]."                                                                                              
                                                                                                                                
1:26:17 PM                                                                                                                    
                                                                                                                                
EMILY  WRIGHT,  Assistant   Attorney  General,  Child  Protection                                                               
Section, Civil Division(Juneau), Department  of Law, advised that                                                               
this language  is covered  under the  criminal rule  of procedure                                                               
16(d)(3).   She observed  the term "may"  leaves the  question of                                                               
criminality  up to  a jury  thus "this  is an  advisement that  a                                                               
judge would be giving to ... a defendant."                                                                                      
                                                                                                                                
REPRESENTATIVE LEDOUX  further questioned  whether a  judge would                                                               
tell  a defendant,  "this may  constituent a  crime [instead  of]                                                               
this is a crime."                                                                                                               
                                                                                                                                
MS. MOSS cautioned that the  language is permissive because there                                                               
could  be a  situation that  arises in  which the  evidence "gets                                                               
into somebody else's hands through no action of the defendant."                                                                 
                                                                                                                                
CHAIR  KELLER  clarified  for  the record  that  he  removed  his                                                               
objection  to Conceptual  Amendment 1.   There  being no  further                                                               
objection, Conceptual Amendment 1 was adopted.                                                                                  
                                                                                                                                
REPRESENTATIVE LEDOUX returned attention  to page 4, lines 14-17,                                                               
and pointed  out that "may"  is not  used in the  admonishment to                                                               
the   defendant  regarding   a  contempt   of  court,   which  is                                                               
inconsistent with the admonishment regarding a criminal offense.                                                                
                                                                                                                                
MS. MOSS  said the sponsor  is open  to discussion on  a possible                                                               
change.                                                                                                                         
                                                                                                                                
CHAIR KELLER opined that it is best to leave the word "may."                                                                    
                                                                                                                                
1:31:44 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section, Central  Office, Criminal  Division, Department  of Law,                                                               
stated that  the proposed change  is to  a court rule  which does                                                               
not set  out elements of  the offense  of any crime.   Therefore,                                                               
conduct  that is  covered  under subparagraph  (D),  page 4,  may                                                               
include other  conduct than  that which  is prohibited  under the                                                               
proposed  new  crime.    She  advised that  using  "may"  is  the                                                               
cautious  approach  and ensures  that  the  person is  forewarned                                                               
about the seriousness of his/her conduct.                                                                                       
                                                                                                                                
REPRESENTATIVE LEDOUX accepted the opinion from DOL.                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG  further  discussed the  parameters  of                                                               
court rules.  He concurred with Ms. Carpeneti.                                                                                  
                                                                                                                                
REPRESENTATIVE  LEDOUX then  asked  for details  on the  incident                                                               
that prompted SB 187.                                                                                                           
                                                                                                                                
MS. MOSS said the attorney gave  the videotape to a relative, who                                                               
gave it  to another  relative who was  upset about  the situation                                                               
and posted it on the Internet.                                                                                                  
                                                                                                                                
1:34:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  surmised  the proposed  new  crime  is                                                               
directed at the following two  sets of circumstances:  A document                                                               
in the  hands of a prosecutor  or defense attorney in  a criminal                                                               
case "gets out," or in a Child in  Need of Aid (CINA) case.  From                                                               
his experience practicing  family law, he asked  whether a family                                                               
law  case, such  as  a  custody case,  could  be  covered by  the                                                               
proposed bill.  He suggested  a provision that would state, "That                                                               
if somebody releases  this in violation of a custody  order or an                                                               
order involving  child visitation ...  something like that,  in a                                                               
private context  also."   Representative Gruenberg  observed that                                                               
this situation can come up in a private custody dispute.                                                                        
                                                                                                                                
MS.  MOSS said  the  proposed  bill as  written  only applies  to                                                               
evidence  in  the  aforementioned  criminal cases.    In  further                                                               
response  to  Representative  Gruenberg, she  said  the  proposed                                                               
legislation  applies  to  CINA  cases  when  there  are  criminal                                                               
charges.                                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out  there is a  provision that                                                               
the  attorney  cannot  share certain  information  with  his  own                                                               
client.                                                                                                                         
                                                                                                                                
MS. MOSS directed  attention to page 3, lines 2-4  which read [in                                                               
part]:                                                                                                                          
                                                                                                                                
     The  materials listed  in this  paragraph shall  not be                                                                    
     provided to  the defendant, but the  information in the                                                                    
     materials  may  be shared  with  the  defendant to  the                                                                    
     extent necessary to prepare the defense of the case                                                                        
                                                                                                                                
MS.  MOSS  concluded  that the  defendant  cannot  have  physical                                                               
custody of the materials.                                                                                                       
                                                                                                                                
1:37:14 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG questioned  whether this restriction may                                                               
be permissible  under the  Alaska Bar Rules  of the  Alaska Court                                                               
System.  He  then directed attention to page 5,  lines 27-28, and                                                               
asked whether the sponsor would  consider a change from "treating                                                               
physician"  to "health  care professional"  in order  to be  more                                                               
inclusive.                                                                                                                      
                                                                                                                                
MS.   MOSS  responded   to  Representative   Gruenberg's  earlier                                                               
question  saying that  the  proposed  legislation includes  child                                                               
protection  investigations, but  does not  include child  custody                                                               
investigations, thus that  distinction may require clarification.                                                               
Returning to  "treating physician"  on page  5, lines  27-28, she                                                               
agreed with the point raised by Representative Gruenberg.                                                                       
                                                                                                                                
1:40:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT read from page 5, lines 26-28 as follows:                                                                
                                                                                                                                
     Notwithstanding another provision  of this section, the                                                                    
     legal custodian  of a  child may  provide records  of a                                                                    
     medical examination of a child  to the child's treating                                                                    
     physician ....                                                                                                             
                                                                                                                                
REPRESENTATIVE  MILLETT  asked  whether  the  treating  physician                                                               
"could be anybody -  it could be the ER ... -  that is a licensed                                                               
medical professional."                                                                                                          
                                                                                                                                
MS. MOSS expressed  her belief the possibilities  include a nurse                                                               
or someone in a health clinic, or a dentist.                                                                                    
                                                                                                                                
REPRESENTATIVE  MILLETT  asked  whether  medical  testimony  from                                                               
nurses,   physician   assistants   (PAs),   or   advanced   nurse                                                               
practitioners (ANPs)  has been used  in previous cases or  if all                                                               
testimony  pertaining to  child abuse  in  CINA cases  is from  a                                                               
medical doctor (MD).   She expressed her  understanding that this                                                               
testimony was required to come from none other than an MD.                                                                      
                                                                                                                                
MS. MOSS was unsure.                                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG,  speaking from  his experience  in many                                                               
cases, said that if a child appears  to be the victim of rape, an                                                               
advanced nurse practitioner becomes involved.                                                                                   
                                                                                                                                
REPRESENTATIVE MILLETT related  that advanced nurse practitioners                                                               
conduct  rape kit  tests.    She stressed  that  her question  is                                                               
whether testimony  from an MD is  required in a child  abuse case                                                               
that does not involve rape.                                                                                                     
                                                                                                                                
1:42:01 PM                                                                                                                    
                                                                                                                                
[SB 187 was heard and held.]                                                                                                    
                                                                                                                                

Document Name Date/Time Subjects
SB 64 Document~DOC Response to March 28 H Judiciary Questions.pdf HJUD 4/4/2014 1:00:00 PM
SB 64
SB 187 Sponsor Statement.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
SB 187~Explanation of Changes.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
CSSB 187 (JUD) Sectional Analysis.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
SB 187~Explanation of Changes.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
CSSB 187 (JUD) Revised Fiscal Note~DOC.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
CSSB 187 (JUD) Revised Fiscal Note~OPA.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
CSSB 187 (JUD) Revised Fiscal Note~LAW.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
CSSB 187 (JUD) Revised Fiscal Note~PDA.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
CSSB 187 (JUD) Revised Fiscal Note~OPA.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
SB 187 Support Document~Rule 37.5 Access to Court Records.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
SB 187 Support Document~CINA Rule 8.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
SB 187 Support Document~AK Forensic Child Interview Roundtable.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
SB 187 Support Document~AK Criminal Procedure Rule 16(d).pdf HJUD 4/4/2014 1:00:00 PM
SB 187
SB 187 Support Document~AK Children's Justice Act Task Force.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
SB 64 Proposed Amendment L.9.pdf HJUD 4/4/2014 1:00:00 PM
SB 64
SB 64 Proposed Amendment L.21.pdf HJUD 4/4/2014 1:00:00 PM
SB 64
SB 64 Support Letter Cook Inlet Tribal Council.pdf HJUD 4/4/2014 1:00:00 PM
SB 64
SB 64 Opposition Letter~Babette Miller.pdf HJUD 4/4/2014 1:00:00 PM
SB 64
SB 64 Proposed Amendment L.18.pdf HJUD 4/4/2014 1:00:00 PM
SB 64
HCSCSSB 187 (JUD) ver. P Draft.pdf HJUD 4/4/2014 1:00:00 PM
SB 187
SB 64 Proposed Amendment L.15 (Unlawful Evasion).pdf HJUD 4/4/2014 1:00:00 PM
SB 64
SB 64 Proposed Amendment L.24.pdf HJUD 4/4/2014 1:00:00 PM
SB 64
SB 64 Proposed Amendment L.28.pdf HJUD 4/4/2014 1:00:00 PM
SB 64
HCSCSSB 187 (JUD) Conceptual Amendment.pdf HJUD 4/4/2014 1:00:00 PM
SB 187