Legislature(2013 - 2014)CAPITOL 120

04/14/2014 01:00 PM House JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
--Delayed to 1:30 p.m. Today--
+= HB 315 JURY NULLIFICATION TELECONFERENCED
Heard & Held
+ SB 170 AFFIRMATIVE DEFENSE TO PROSTITUTION TELECONFERENCED
Heard & Held
+ HB 370 AWCB CONTROLLED SUBSTANCE PRESCRIPTIONS TELECONFERENCED
Moved CSHB 370(L&C) Out of Committee
+= SB 173 SYNTHETIC DRUGS TELECONFERENCED
Heard & Held
+ SB 128 ELECTRONIC BULLYING TELECONFERENCED
Moved HCS CSSB 128(JUD) Out of Committee
+ SCR 2 ACQUIRE TONGASS NATIONAL FOREST LAND TELECONFERENCED
Scheduled But Not Heard
+ HB 254 POWERS OF ATTORNEY TELECONFERENCED
<Bill Hearing Canceled>
+ Bills Previously Heard/Scheduled TELECONFERENCED
                   SB 128-ELECTRONIC BULLYING                                                                               
                                                                                                                                
3:05:06 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER announced  that the next order of  business would be                                                               
CS FOR  SENATE BILL NO. 128(JUD),  "An Act relating to  the crime                                                               
of harassment."                                                                                                                 
                                                                                                                                
3:06:04 PM                                                                                                                    
                                                                                                                                
EDRA MORLEDGE, Staff, Senator Kevin  Meyer, speaking on behalf of                                                               
Senator  Meyer,  prime sponsor  of  CSSB  128[JUD], informed  the                                                               
committee the  bill is aimed  at reducing  electronic harassment,                                                               
which  is  otherwise  known  as   cyberbullying.    The  proposed                                                               
legislation would  make this  offense a  class B  misdemeanor and                                                               
inserts  a  new  paragraph   into  Alaska's  existing  harassment                                                               
statute.   The  current  language  of the  bill  (Version G)  was                                                               
drafted by the sponsor, the  Department of Law (DOL), Legislative                                                               
Legal and Research Services, Legislative  Affairs Agency, and the                                                               
Senate  Judiciary   Standing  Committee.     The   bill  protects                                                               
individuals  under the  age  of 18  years  because, although  the                                                               
current  statute under  education  requires  school districts  to                                                               
establish  policies   and  procedures  for  bullying   on  school                                                               
grounds, electronic  bullying occurs outside of  school in social                                                               
media sites, and through texts and email.                                                                                       
                                                                                                                                
3:07:40 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER directed attention to page 2, line 5, which read:                                                                  
                                                                                                                                
       ... manner that causes severe mental or emotional                                                                        
     injury or places the person in ...                                                                                         
                                                                                                                                
CHAIR  KELLER  expressed  his   belief  that  the  aforementioned                                                               
condition  would  be  hard  to  define,  and  he  suggested  that                                                               
removing the words "causes severe  mental or emotional injury or"                                                               
would strengthen the bill.                                                                                                      
                                                                                                                                
MS.  MORLEDGE  said the  sponsor  is  amenable to  the  suggested                                                               
change.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  LEDOUX asked  why the  legislation is  limited to                                                               
protecting persons under  18 years of age.   Also, she questioned                                                               
why something  that "would  cause a  reasonable fear  of physical                                                               
injury" is not assault regardless of a person's age.                                                                            
                                                                                                                                
MS.  MORLEDGE  explained that  the  intent  of  the bill  was  to                                                               
protect school-age  children because they are  more vulnerable to                                                               
harassment.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  LEDOUX  restated  her point  that  threatening  a                                                               
person  to cause  a  fear  of physical  injury  is assault  under                                                               
existing statutes.                                                                                                              
                                                                                                                                
MS. MORLEDGE deferred to the drafter of the bill.                                                                               
                                                                                                                                
3:10:35 PM                                                                                                                    
                                                                                                                                
KATHLEEN   STRASBAUGH,  Attorney,   Legislative  Legal   Counsel,                                                               
Legislative  Legal  and  Research Services,  Legislative  Affairs                                                               
Agency,  responded that  existing  statute states  that a  person                                                               
commits the crime of assault in  the fourth degree if by words or                                                               
other  contact, the  person recklessly  places another  person in                                                               
fear  of imminent  physical injury.   She  directed attention  to                                                               
page 1, line 4 of the proposed legislation which read:                                                                          
                                                                                                                                
       (a) person commits the crime of harassment in the                                                                        
        second degree if, with intent to harass or annoy                                                                        
     another person, that person                                                                                                
                                                                                                                                
MS.  STRASBAUGH pointed  out there  are  two differences  between                                                               
existing statute  and the proposed statute:  The first difference                                                               
is the  intent to "annoy" rather  than the intent to  injure, and                                                               
the  second is  the threat  of "physical  injury," not  "imminent                                                               
physical injury."  She stated  that the second difference relates                                                               
to the fact  that imminent does not apply  to electronic bullying                                                               
because the  words or other  conduct does  not take place  in the                                                               
presence of a person.                                                                                                           
                                                                                                                                
3:12:04 PM                                                                                                                    
                                                                                                                                
MS.  STRASBAUGH,  in  response  to  Chair  Keller  regarding  his                                                               
suggestion to  remove "causes severe  mental or  emotional injury                                                               
or"  said that  is a  policy choice.   As  to whether  the change                                                               
would  cause difficulties  for the  prosecution, she  deferred to                                                               
DOL.                                                                                                                            
                                                                                                                                
3:12:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG, after  being  told  by Ms.  Strasbaugh                                                               
that the existing  statute covering assault in  the fourth degree                                                               
is AS  11.41.230, noted that  assault in  the fourth degree  is a                                                               
class A  misdemeanor, and second  degree harassment is a  class B                                                               
misdemeanor,  which is  up  to  90 days  in  jail.   He  directed                                                               
attention to page 2, lines 3-5 which read:                                                                                      
                                                                                                                                
     (7)  repeatedly   sends  or  publishes   an  electronic                                                                    
     communication  that  insults,  taunts,  challenges,  or                                                                    
     intimidates a person under 18  years of age in a manner                                                                    
     that places  the person in reasonable  fear of physical                                                                    
     injury.                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked whether each  communication would                                                               
be a separate  offense or "if you're sending  a communication, or                                                               
publish it, you must do it repeatedly."                                                                                         
                                                                                                                                
MS. STRASBAUGH said  she was hesitant to make an  assertion as to                                                               
how each case would be handled.                                                                                                 
                                                                                                                                
3:14:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  informed  the committee  the  Rule  of                                                               
Lenity directs that if a statute  can be interpreted two ways and                                                               
in a criminal  case the court will interpret the  law in the most                                                               
lenient  way from  the defendant's  point of  view.   He gave  an                                                               
example in which 50 calls were interpreted as one offense.                                                                      
                                                                                                                                
MS. STRASBAUGH  surmised a series  of taunts or insults  would be                                                               
taken to authorities  when it reached "the pain  threshold."  She                                                               
encouraged the  committee to  ask the  prosecuting agency  how it                                                               
would prosecute the posited case.                                                                                               
                                                                                                                                
MS. MORLEDGE pointed out on page  1, line 10, the word "repeated"                                                               
is currently  used for  telephone calls and  thus was  the source                                                               
for  the  new  language,  "repeated   sending  of  an  electronic                                                               
message."                                                                                                                       
                                                                                                                                
3:17:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN  questioned the  use of  "inconvenient hours"                                                               
on page  1, line 10.   He observed that  some of the  language in                                                               
the bill is "very, very, vague."                                                                                                
                                                                                                                                
MS. MORLEDGE restated her point  that the aforementioned language                                                               
is  from  the  existing  statute and  the  proposed  bill  simply                                                               
inserts electronic communication and using consistent language.                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG referred  to occupations  which require                                                               
workers  to have  "thick  skin."   He asked  whether  there is  a                                                               
definition in the Alaska Statutes  of "severe mental or emotional                                                               
...."                                                                                                                           
                                                                                                                                
3:21:18 PM                                                                                                                    
                                                                                                                                
RICHARD  SVOBODNY,  Deputy   Attorney  General,  Central  Office,                                                               
Criminal  Division,  Department  of   Law,  stated  it  would  be                                                               
difficult  to  prove  the  language  removed  by  Chair  Keller's                                                               
proposed  amendment  [text  provided  above].   He  said  if  the                                                               
language stays  in, the answer  is up to  the jury.   In criminal                                                               
law  definitions, there  is  no definition  of  the terms  severe                                                               
mental or emotional  injury to help the jury; in  fact, the court                                                               
will tell  the jury "use  ... your ordinary understanding  of the                                                               
language."   Mr. Svobodny said  this would probably  cause debate                                                               
in the jury room.  This  type of question, along with the meaning                                                               
of "repeated" would be  up to the jury.  He gave  an example of a                                                               
previous  ruling  establishing  that  three  threats  of  serious                                                               
physical  injury to  a  person satisfied  the  term "repeated"  -                                                               
which is used in the crime of assault  in the third degree - as a                                                               
matter  of law.   In  response to  Representative Gruenberg,  Mr.                                                               
Svobodny said the  offense of terroristic threatening  is still a                                                               
law, but the  language has been changed and  the repeated threats                                                               
to cause  serious physical injury  have been moved to  assault in                                                               
the third degree.                                                                                                               
                                                                                                                                
REPRESENTATIVE LEDOUX stated one  of her concerns about including                                                               
the  language  "causes severe  mental  or  emotional injury,"  is                                                               
regarding  the  "eggshell" plaintiff.    Some  actions that  most                                                               
people  would  tolerate  may  cause   injury  to  those  who  are                                                               
emotionally  or mentally  fragile.   She said  this situation  is                                                               
common in  tort cases and courts  have ruled that a  defendant is                                                               
liable for an eggshell plaintiff.                                                                                               
                                                                                                                                
3:25:29 PM                                                                                                                    
                                                                                                                                
MR. SVOBODNY  said the  position of  DOL is  that if  a defendant                                                               
injures  a victim  with a  disease,  their injury  could lead  to                                                               
charges  of more  serious assault;  this  is a  position that  is                                                               
consistent  with other  provisions of  law, that  "you take  your                                                               
victim as you find them."                                                                                                       
                                                                                                                                
REPRESENTATIVE LEDOUX  cautioned that  the "causes  severe mental                                                               
or emotional injury" section is  troublesome because there should                                                               
not be a  prior restraint on the freedom of  speech, and she said                                                               
she supported the removal of this language.                                                                                     
                                                                                                                                
3:27:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN  moved to adopt the  proposed House committee                                                               
substitute   (HCS)  for   CSSB  128(JUD),   Version  28-LS1001\H,                                                               
Strasbaugh, 4/12/14,  as the  working document.   There  being no                                                               
objection, Version H was before the committee.                                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG stated he was  not waiving any rights to                                                               
offer an amendment.                                                                                                             
                                                                                                                                
3:28:30 PM                                                                                                                    
                                                                                                                                
CHAIR  KELLER, after  ascertaining  that no  one  else wished  to                                                               
testify, closed public testimony.                                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG  commented that  many terms in  the bill                                                               
are construed  according to  "common ordinary  usage."   He urged                                                               
for the  committee to review  related court decisions  and warned                                                               
that more information on definitions is needed.                                                                                 
                                                                                                                                
3:29:43 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER reopened public testimony.                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG pointed out  the use of "repeatedly" and                                                               
"repeated"  in the  new and  existing language  of the  bill, and                                                               
asked how courts interpret the term.                                                                                            
                                                                                                                                
3:30:58 PM                                                                                                                    
                                                                                                                                
QUINLAN  STEINER,  Director,   Central  Office,  Public  Defender                                                               
Agency,  was unsure  of the  definitive answer  to Representative                                                               
Gruenberg's  question;  however,  he expressed  his  belief  that                                                               
repeated is "more than once."                                                                                                   
                                                                                                                                
REPRESENTATIVE   GRUENBERG  requested   further  testimony   from                                                               
agencies on this point.                                                                                                         
                                                                                                                                
CHAIR KELLER  said his  hope is  that the  committee will  make a                                                               
decision on the bill at this hearing.                                                                                           
                                                                                                                                
3:31:51 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER again closed public testimony.                                                                                     
                                                                                                                                
3:32:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN moved  to report the proposed  HCS for [CSSB]                                                               
128(JUD),  Version  28-LS1001\H,   Strasbaugh,  4/12/14,  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal notes.                                                                                                                   
                                                                                                                                
3:32:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PRUITT objected.  Although  he said he agreed with                                                               
the  motion,  he questioned  whether  a  class B  misdemeanor  is                                                               
appropriate  in the  case of  an  adult who  intimidates a  young                                                               
child.  He then removed his objection.                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG inquired  as  to  whether the  proposed                                                               
bill is void for vagueness.   One prosecutor may decide to divide                                                               
ten  calls into  two  counts and  another may  not;  the bill  is                                                               
silent on this  matter, and he asked Mr. Svobodny  if DOL has any                                                               
charging guidelines related to the bill.                                                                                        
                                                                                                                                
MR. SVOBODNY said  DOL does not have guidelines on  the number of                                                               
calls  that  are needed  to  establish  "repeated."   This  issue                                                               
arises  across  all  criminal cases  and  charges  are  sometimes                                                               
determined by,  for example, the  number of pills, or  the number                                                               
of bad checks.                                                                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG  observed that the  existing legislation                                                               
has not been struck down.                                                                                                       
                                                                                                                                
REPRESENTATIVE  PRUITT further  asked  whether  DOL is  confident                                                               
that the proposed legislation can be enforced.                                                                                  
                                                                                                                                
MR. SVOBODNY said he is very comfortable with the bill.                                                                         
                                                                                                                                
REPRESENTATIVE PRUITT restated that he removed his objection.                                                                   
                                                                                                                                
3:38:46 PM                                                                                                                    
                                                                                                                                
There being no further objection,  HCS CSSB 128(JUD) was reported                                                               
from the House Judiciary Standing Committee.                                                                                    
                                                                                                                                

Document Name Date/Time Subjects
HB 315 Opposition Letter~ANDVSA.pdf HJUD 4/14/2014 1:00:00 PM
HB 315
HB 315 Support Letter~Lance Roberts.pdf HJUD 4/14/2014 1:00:00 PM
HB 315
HB 315 Support Letter~Mike Prax.pdf HJUD 4/14/2014 1:00:00 PM
HB 315
HB370 Sectional Analysis.pdf HJUD 4/14/2014 1:00:00 PM
HB 370
HB370 Supporting Documents-Health Partners Opiate Drug Screens.pdf HJUD 4/14/2014 1:00:00 PM
HB 370
HB 370 Support Document~National Council on Compensation Insurance.pdf HJUD 4/14/2014 1:00:00 PM
HB 370
SCR 2 Questions and Answers Posed by (S) Judiciary.PDF HJUD 4/14/2014 1:00:00 PM
SCR 2
SCR 2 Support Document~Report by Alaska Timber Jobs Task Force.PDF HJUD 4/14/2014 1:00:00 PM
SCR 2
SCR 2 Support-Opposition.pdf HJUD 4/14/2014 1:00:00 PM
SCR 2
SCR 2 Opposition Letter~Eric Lee.pdf HJUD 4/14/2014 1:00:00 PM
SCR 2
HCSCSSB 128 (JUD) ver. H Draft.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Leg. Legal Memo~Harassment of vulnerable adults.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Leg. Legal Memo~Legal Issues.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Support Document~Cyberbullying Fact Sheet.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Support Document~Misc. News Articles.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
SB 128 Support Letter~AK Nurses Association.pdf HJUD 4/14/2014 1:00:00 PM
SB 128
CSSB 173 Fiscal Note~PDA Updated.pdf HJUD 4/14/2014 1:00:00 PM
SB 173