Legislature(2005 - 2006)CAPITOL 106
04/21/2005 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HJR12 | |
| HB86 | |
| HB34 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 146 | TELECONFERENCED | |
| += | SB 141 | TELECONFERENCED | |
| += | HB 238 | TELECONFERENCED | |
| += | HJR 12 | TELECONFERENCED | |
| += | HB 34 | TELECONFERENCED | |
| += | HB 86 | TELECONFERENCED | |
HB 34-EXPUNGEMENT OF SET ASIDES 9:35:47 AM CHAIR SEATON announced that the last order of business was HOUSE BILL NO. 34, "An Act relating to the expungement of records relating to conviction set asides granted after suspended imposition of sentence." 9:36:03 AM REPRESENTATIVE GRUENBERG moved to adopt the committee substitute (CS) for HB 34, Version 24-LS0240\I, Luckhaupt, 4/18/05, as a work draft. There being no objection, Version I was before the committee. 9:36:25 AM LINDA SYLVESTER, Staff to Representative Bruce Weyhrauch, Alaska State Legislature, on behalf of Representative Weyhrauch, sponsor, reviewed the changes to the bill shown in Version I. 9:38:27 AM MS. SYLVESTER explained that one change is the court would not automatically be issuing expungements; a person would petition for one and judges would follow concrete guidelines. 9:39:38 AM CHAIR SEATON moved Amendment 1 to Version I, which read as follows [original punctuation provided]: Page 1, Line 7, Following, "expungement." DELETE: "The court may issue the order if the person has proven by a preponderance of the evidence that the person is not likely to reoffend." INSERT: "No sooner than one year following the date of the set aside of the suspended imposition of sentence, and if the person has not been charged with a crime, the court may issue the order of expungement." MS. SYLVESTER reviewed Amendment 1. 9:41:19 AM REPRESENTATIVE LYNN objected to Amendment 1. He stated that he has a philosophical problem with any amendment that would increase the already broad language of the bill. 9:41:57 AM REPRESENTATIVE ELKINS told Representative Lynn that he will support [Amendment 1] for one reason: He indicated that people [with old criminal records - for example a charge of driving under the influence (DUI) they may have received a few decades in the past] are being pulled off state ferries and tug boats, [by the Canadian government while in Canadian waters] and being flown home, leaving the ferries and tugs without sufficient crew. He said, "It takes about a year to get through the Canadian government to get it cleaned up," and [Amendment 1] would eliminate that [problem]. 9:42:59 AM REPRESENTATIVE GARDNER reminded her fellow committee members that the crimes being considered are not violent crimes, but rather minor offenses, and there would be reason to believe that the person is not likely to reoffend. 9:43:18 AM CHAIR SEATON added, "It's only those crimes ... [that] went to court and [for which] there was a suspended imposition of sentence ...." 9:44:25 AM REPRESENTATIVE LYNN removed his objection and said he probably would not object to any further amendments in order to speed the committee process; however, he may object to the bill. 9:45:31 AM CHAIR SEATON asked if there was any further objection to Amendment 1. There being none, Amendment 1 was adopted. 9:45:58 AM DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System, stated that he has worked extensively with the sponsor's staff to create a variety of options that are procedurally consistent with what the court can and cannot do. He said the change [manifested through Amendment 1] was recommended by at least a couple judges who were uncomfortable with the language "unlikely to reoffend in the future". 9:47:42 AM REPRESENTATIVE GRUENBERG, regarding the adopted Amendment 1, said he wants it to be clear that the language "no sooner than one year" will allow a judge in an individual case to say, "I won't consider an expungement order sooner than two years from the date of the imposition of sentence ...." 9:48:22 AM MR. WOOLIVER responded that that's how he read that language. 9:48:31 AM CHAIR SEATON asked if "no sooner than" means that folks who had a suspended imposition sentence in the past could come to the court to ask for an expungement of their set aside. 9:48:54 AM MR. WOOLIVER responded, "As I read the current language, it's not limited to people who recently received a set aside." 9:49:35 AM CHAIR SEATON [moved] Amendment 2, which read as follows [original punctuation provided]: Page 2, Line 10, DELETE: "arrest, adjudication" Page 1, Line 14, DELETE: "arrest, adjudication" 9:50:17 AM MS. SYLVESTER said, "The intention is not to do a surgical strike of every record of the court process." 9:50:46 AM CHAIR SEATON noted that the language to be deleted on line 10 actually read, "arrested" and "adjudged", which is different than how the sponsor's amendment read. REPRESENTATIVE GRUENBERG said the first part of Amendment 2 should delete: "previously arrested, been adjudged," so that the sentence reads: "Upon entry of such an order, the applicant shall be deemed not to have been convicted, or received a suspended imposition of sentence, or a set aside." CHAIR SEATON asked Mr. Wooliver to comment. 9:52:55 AM MR. WOOLIVER said it's not hard to seal or make confidential a court file; however, "names do show up in countless other places that are ... all but impossible to go back and remove." He said all court proceedings are recorded on a CD ROM. There is an arraignment list for the day which is not searchable by name, but is searchable by date; so, if a person is arraigned, his/her name will show up. He explained, "It's very difficult, bordering on impossible, to go back later and then try to delete any reference to you for your arraignment, for your bail hearing, for your change of plea hearing. You'll just be one name amongst hundreds on a CD. That's the type of thing we can't make confidential." 9:53:41 AM CHAIR SEATON said he thinks the part of the language the committee is addressing immediately is regarding whether the applicant shall be deemed as not convicted, not regarding record deletion. MR. WOOLIVER responded, "They're related, though." CHAIR SEATON said what he wants to know is if Mr. Wooliver recommends that the language read "previously convicted" or "has not been convicted". MR. WOOLIVER replied that he does not have a position on that. 9:54:22 AM CHAIR SEATON announced that Amendment 2 would be conceptual and now read as follows: Page 1, Line 10 Delete: "previously arrested, been adjudged," CHAIR SEATON, in response to a comment from Representative Gruenberg, said, "I don't see any objection other than this to adopting the amendment." He announced that [Conceptual] Amendment 2 was adopted. 9:55:40 AM CHAIR SEATON moved Amendment 3 [previously part of the original Amendment 2 from the sponsor], which now read as follows: Page 1, Line 14 Delete: "arrest, adjudication" 9:57:14 AM MR. WOOLIVER remarked that his previous comments were more applicable to [what was the second part of Amendment 2 and is now Amendment 3]. He continued: This deals with the types of records the court can either seal or make confidential. As I explained earlier, there are just some records that, by the nature of the way they are gathered, can't be made confidential or sealed, and others that are relatively simple. The record of the conviction or files on those types of things we can easily make confidential. Every other reference to the names and records relating to arrest and arraignment and bail review are things that are not the types of things you search anyway on the Internet or any other place, but as a practical matter they're all but impossible to delete. MR. WOOLIVER, in response to a question from Chair Seaton, said the aforementioned is true at least for the court system. He said he knows the Department of Public Safety has "other issues." 9:57:49 AM CHAIR SEATON asked if there was any objection to Amendment 3. 9:58:24 AM REPRESENTATIVE GRUENBERG objected to Amendment 3 for discussion purposes. He said he would like to know if Joanna Stewart from the Department of Public Safety would like to comment on Amendment 3 [but it was ascertained that she did not]. 9:59:35 AM REPRESENTATIVE GRUENBERG [withdrew his objection to Amendment 3]. 9:59:47 AM CHAIR SEATON announced that, there being no further objection, Amendment 3 was adopted. 10:00:00 AM REPRESENTATIVE GRUENBERG asked if the court system would have had any problem with the language "previously arrested, been adjudged," if the committee had not deleted it in Conceptual Amendment 2. 10:01:01 AM MR. WOOLIVER responded, "Actually, that section doesn't really apply to us, it's just a policy call that you'll make as to what you will allow this person to report to the world." 10:01:19 AM REPRESENTATIVE GRUENBERG moved to reconsider the committee's action on Amendment 2. 10:01:29 AM MR. WOOLIVER interjected, "Just reading this again ..., I may have misspoken. There may be other reasons - other aspects about whether someone has been previously arrested in other contexts - that I'm not thinking of right now. So, I'm not sure what the impact of ... changing that amendment would be, frankly." 10:01:51 AM REPRESENTATIVE GRUENBERG concluded that he would not make a motion. [His motion to reconsider the committee's adoption of Amendment 2 was treated as withdrawn.] 10:02:11 AM CHAIR SEATON told Representative Gruenberg he thinks its important to be specific when allowing people to be deemed as not having been arrested; it should pertain to an individual crime, not be blanketed for all crimes. 10:02:28 AM REPRESENTATIVE GRUENBERG said he thinks that's an excellent point. He suggested there should be language in the bill to reflect that concern. 10:03:02 AM REPRESENTATIVE GRUENBERG moved Conceptual Amendment 4, as follows: Page 1, line 11: Between "set aside" and "." Insert "for that crime" CHAIR SEATON asked if there was any objection to Conceptual Amendment 4. There being none, Conceptual Amendment 4 was adopted. He explained that since the amendment is conceptual, it "could be conformed throughout, if there's another place." 10:03:49 AM CHAIR SEATON directed attention to the sponsor's Amendment 3, which he said would now be named Amendment 5. He moved Amendment 5, which read as follows [original punctuation provided]: Page 2, Line 5, INSERT: APPLICABILITY: The amendment to AS 12.55.085(e) made by sec. 1 of this Act allowing the sealing of certain records only applies when a conviction, suspension of imposition of sentence, and the set aside under AS 12.55.085 have all occurred after the effective date of this ACT. 10:04:55 AM REPRESENTATIVE GRUENBERG objected. He explained as follows: It was at my request that that second section was eliminated from the original bill. And the reason it's been (indisc.). This deals with the cost involved. And the thing is that agencies are concerned that if we make it retroactive, it's going to be very expensive. We don't, at this point, know what the additional expense is going to be, and we don't know ... where the cutoff date should be and how this should work. And it may vary by agency. REPRESENTATIVE GRUENBERG stated his preference that "the reach of this bill should be dealt with in [the House Finance Committee] after the agencies have worked up their fiscal notes, and that the House State Affairs Standing Committee should ask the House Finance Committee to address [Amendment 5]. 10:06:33 AM CHAIR SEATON proffered that the committee's intent is not to ask the court system or the Department of Public Safety to dig through records of previous acts that were set aside, but to allow the person who had the set aside to consider that [conviction] expunged and be able to honestly answer that they were not convicted [on a job application, for example]. 10:08:05 AM MR. WOOLIVER stated that without the amendment, anyone who has had a set aside "now more than a year in the past" can come petition the court to have his/her record expunged. With the amendment, only those who have been convicted since the effective date would have that option available to them. Retroactivity would be a public policy call for the legislature to make, while for the court system and others in criminal justice agencies, it would be an issue of how difficult it would be to go back and expunge records from the past. 10:09:36 AM CHAIR SEATON indicated that he read [Amendment 5] differently. He stated, "It doesn't say that expungement won't be there, it means that you won't have to go back and change the record." He suggested that the bill possibly needs to be in two sections. The first would read: "Upon entry of such an order the applicant shall be deemed not to have been previously convicted or received a suspended imposition of sentence, or a set aside for that crime." The second would have to do with allowing the sealing of record. He added, "Or ... maybe we should be requiring the sealing of record." He offered further details. 10:11:23 AM MR. WOOLIVER responded that if that's the goal, he's not sure [Amendment 5] accomplishes it. 10:11:37 AM CHAIR SEATON reiterated that two issues are currently combined in one paragraph in Section 1. He said he would like to hold the bill and get a committee substitute drawn up with two sections. 10:12:44 AM REPRESENTATIVE GRUENBERG observed that the only committee that would really take the time with HB 34 is the House State Affairs Standing Committee. He offered to be on a subcommittee to deal with the issue. CHAIR SEATON said he would serve on the subcommittee with Representative Gruenberg. 10:13:19 AM CHAIR SEATON stated his understanding for the record that Amendment 5 was withdrawn. 10:13:51 AM REPRESENTATIVE GRUENBERG [moved] Amendment 6 [originally the sponsor's Amendment 4], which read as follows [original punctuation provided]: Page 1, Line 13, following "cost of" DELETE: "sealing the records" INSERT: "making the records confidential" Page 2, Line 2, following "electronic records are" DELETE: "sealed" INSERT: "confidential. Nothing in this section affects or prevents the use of an offenders [sic] prior conviction, including an expunged conviction, in a later criminal prosecution." REPRESENTATIVE GRUENBERG stated that there's a great difference in the court system between making a record confidential and sealing the record. In the former, the record is stamped "confidential"; in the latter, the record is place in an envelope under seal and can only be opened if a judge issues an order. If a person reoffends, he said, the question is whether the district attorney can look at the record, for example, when it would be helpful to use the fact of the prior conviction. He offered further details. Under [Version I], the record would be sealed. Amendment 6 would allow the confidential record to be used in a subsequent criminal prosecution. REPRESENTATIVE GRUENBERG noted that there was a typographical error: The word "offenders" should read "offender's". 10:17:04 AM REPRESENTATIVE LYNN said he would support Amendment 6. 10:17:13 AM MR. WOOLIVER confirmed that Representative Gruenberg's explanation was accurate. In response to a question from Chair Seaton, he said deciding whether or not to adopt Amendment 6 would be a policy call for the committee to make. He recapped Representative Gruenberg's explanation of sealed versus confidential. 10:18:09 AM CHAIR SEATON said he wants to ensure that the court system would have access for future court action, but "really no one else does." 10:18:42 AM MR. WOOLIVER confirmed that's correct. 10:19:02 AM CHAIR SEATON offered his recollection that he had objected to Amendment 6 and he removed his objection. 10:19:29 AM REPRESENTATIVE GRUENBERG moved an amendment to Amendment 6 to change "offenders" to "offender's". CHAIR SEATON asked if there was any objection to the amendment to Amendment 6. None was stated and the amendment to Amendment 6 was treated as adopted. 10:19:43 AM CHAIR SEATON asked if there was any objection to Amendment 6, as amended. There being none, Amendment 6, as amended, was adopted. CHAIR SEATON announced that HB 34 was heard and held.
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