Legislature(2011 - 2012)CAPITOL 120
03/18/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Attorney General | |
| HB150 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | HB 150 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 18, 2011
1:08 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Chair
Representative Steve Thompson, Vice Chair
Representative Bob Lynn
Representative Lance Pruitt
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Wes Keller
Representative Mike Chenault (alternate)
COMMITTEE CALENDAR
CONFIRMATION HEARING(S):
Attorney General
John J. Burns - Fairbanks
- CONFIRMATION(S) ADVANCED
HOUSE BILL NO. 150
"An Act relating to the protection of property of persons under
disability and minors; relating to the crime of violating a
protective order concerning certain vulnerable persons; relating
to aggravating factors at sentencing for offenses concerning a
victim 65 years or older; relating to the protection of
vulnerable adults; amending Rule 12(h), Alaska Rules of Criminal
Procedure; amending Rule 45(a), Alaska Rules of Criminal
Procedure; amending Rule 65, Alaska Rules of Civil Procedure;
amending Rule 17, Alaska Rules of Probate Procedure; amending
Rule 9, Alaska Rules of Administration; and providing for an
effective date."
- MOVED CSHB 150(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 150
SHORT TITLE: PROTECTION OF VULNERABLE ADULTS/MINORS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/09/11 (H) READ THE FIRST TIME - REFERRALS
02/09/11 (H) JUD, FIN
02/23/11 (H) JUD AT 1:00 PM CAPITOL 120
02/23/11 (H) Heard & Held
02/23/11 (H) MINUTE(JUD)
02/25/11 (H) JUD AT 1:00 PM CAPITOL 120
02/25/11 (H) Heard & Held; Assigned to Subcommittee
02/25/11 (H) MINUTE(JUD)
03/02/11 (H) JUD AT 1:00 PM CAPITOL 120
03/02/11 (H) Work Session on CS for above Bill
03/04/11 (H) JUD AT 9:00 AM CAPITOL 120
03/04/11 (H) Work Session on CS for above Bill
03/04/11 (H) JUD AT 1:30 PM CAPITOL 120
03/04/11 (H) Work Session on CS for above Bill
03/10/11 (H) JUD AT 3:00 PM CAPITOL 120
03/10/11 (H) Work Session on CS for above Bill
03/17/11 (H) JUD AT 11:00 AM CAPITOL 120
03/17/11 (H) Work Session on CS for above Bill
03/18/11 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOHN J. BURNS, Appointee
Attorney General
Fairbanks, Alaska
POSITION STATEMENT: Testified as appointee to the position of
Attorney General.
SARAH MUNSON, Staff
Representative Carl Gatto
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 150, presented the
proposed committee substitute (CS), Version I, and responded to
questions.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Responded to a question during discussion
of HB 150.
SCOTT STERLING, Supervising Attorney
Elder Fraud and Assistance
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 150.
KELLY HENRIKSEN, Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 150.
ACTION NARRATIVE
1:08:19 PM
CHAIR CARL GATTO called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Representatives Gatto, Gruenberg,
Holmes, Lynn, Pruitt, and Thompson were present at the call to
order.
^Confirmation Hearing(s):
Confirmation Hearing(s):
^Attorney General
Attorney General
1:08:31 PM
CHAIR GATTO announced that the first order of business would be
consideration of the nomination of John J. Burns as appointee to
the position of Attorney General.
1:08:49 PM
JOHN J. BURNS, Appointee, Attorney General, after providing some
personal information and outlining his educational and
employment background, said that his responsibility and
obligation as attorney general are first, foremost, and always
to uphold the constitution and enforce the laws of Alaska with
dignity and integrity and consistent with his ethical
obligations as an attorney. Upon being appointed to the
position of attorney general, he relayed, he spent time in
Anchorage, Fairbanks, and Juneau, meeting and working with
department personnel, and traveled to Bethel, Nome, and Barrow
to meet with rural leaders, judges, and law enforcement
officials, and to visit women's shelters and youth facilities,
with the intention of better understanding the needs of rural
communities and identifying how the Department of Law (DOL)
could better meet those needs. With regard to why he accepted
the appointment to the position of attorney general, he
explained that it was a combination of three factors: his
belief that each Alaskan has a moral obligation to contribute
back to his/her community and the state when his/her services
are requested or needed; his belief in his own ability to
perform the duties and responsibilities of attorney general; and
his confidence in the governor's integrity, passion, and
commitment to Alaska and Alaskans. He assured the committee
that as attorney general, his efforts would always be focused on
ensuring that both he and the Department of Law uphold the
constitution and enforce the laws of the state and do so with
dignity and integrity at all times.
1:13:20 PM
MR. BURNS relayed that as an Alaskan, he dreams that the plague
of domestic violence (DV) and sexual assault/abuse that scourges
Alaska will be eradicated and that Alaskans from all walks of
life will learn to truly understand what respect means - what it
means to respect oneself and one another; dreams that Alaska's
educational system - including parents and communities - will
focus on helping students truly learn, that students, when they
graduate, will have an enthusiasm for learning and will possess
the academic and vocational skills that will enable them to
pursue higher learning and careers, that Alaska's students will
learn to be critical thinkers - not followers - and that the
dropout rate can be permanently reversed; dreams that the
principle that made Alaska great in the first place - the spirit
of individualism and community, self reliance, adventurism,
personal responsibility, and accountability - will replace the
culture of entitlement, and that government - both state and
federal - will become facilitators, not enablers; dreams that
the rights and privileges promised Alaska under the Alaska
Statehood Act will be realized, and that the increasingly-
oppressive yoke of federal regulations will be lifted so that
Alaska, once again, may be permitted to responsibly develop its
resources; dreams that the spirit of true dialog will once again
be embraced and that Alaskans may all come to realize that it is
by listening to different points of view that one's decisions
are often improved, and that Alaskans learn to realize that
simply because someone disagrees with one's belief does not make
that person a racist or undeserving of respect and
consideration; and dreams that his tenure as attorney general -
however long it may be - is marked by integrity and a respect
and reverence for the law, and that the decisions which both he
and the Department of Law make are always made for the right
reasons, so that when he is done serving the state, he will
know, always, that he has done his very best.
1:15:49 PM
MR. BURNS, in conclusion, stated that he is honored and
privileged to have accepted the appointment of attorney general.
In response to questions, he offered his belief that the
statewide "Choose Respect" initiative is already having a
significant impact on Alaska's problems of domestic violence and
sexual assault/abuse, since one of the first steps in solving
these problems is to foster awareness; and that some of the
principal challenges and opportunities the DOL faces include the
recruitment, training, and retention of personnel in order to
maintain the high-quality workforce currently in place. In
response to another question, he explained that although he is
the governor's attorney - an at-will employee - his obligations
as attorney general are set forth in statute, and he is also, in
all aspects of his job, governed by his responsibility to uphold
the constitution and the laws of Alaska, and bound by his
ethical obligations as an attorney. Therefore, regardless of
his role with the governor, those responsibilities and
obligations usurp everything else, and so should he ever be
faced with a conflict, he relayed, he would be bound above all
else to uphold the constitution and the laws of the State of
Alaska regardless that doing so results in a short tenure as
attorney general.
REPRESENTATIVE THOMPSON asked Mr. Burns to speak about his
philosophy regarding bringing suit against the federal
government over resource development issues.
MR. BURNS opined that Alaska should be afforded the opportunity
to develop its resources responsibly, but that litigation should
be a last resort. It's important to dialog, to see if some
consensus can be reached, and to take a collaborative approach
with Alaska's peers, since many western states are affected by
many of the same issues facing Alaska. But at the same time, it
must be realized that one of the tools that Alaska has and must
be willing to use is litigation; litigation, when necessary and
when appropriate, should never by shied away from.
REPRESENTATIVE HOLMES asked Mr. Burns whether he was consulted
by the governor when the governor made his decision to not
accept the $1 million in grant funding for a health insurance
exchange under the federal government's Patient Protection and
Affordable Care Act (PPACA).
1:28:01 PM
MR. BURNS said that he was involved in analyzing the federal
district court judge's decision in Florida et al v. United
States Department of Health and Human Services and the impact of
that decision on implementation relative to Alaska, and in his
opinion, and in the opinion of the DOL at that time, because
Alaska was a party, the judge's decision - effectively serving
as an injunction [though he did not issue one] - was that an
aspect of the PPACA - the "individual mandate" - was
unconstitutional and that it could not be severed from the PPACA
in its entirety and thus the PPACA itself was therefore also
unconstitutional, and so Alaska - again, as a party to the
litigation - was bound by that decision. The judge subsequently
stayed his decision, though, and the effect of his doing so was
that the PPACA became enforceable, and so Alaska has been moving
forward with implementation and the evaluation of that
implementation. However, there is a significant difference
between implementation and funding; implementation is a legal
issue that he, as acting attorney general, is involved in,
whereas funding is a policy issue that he is not involved in.
In response to further questions, he provided additional
information regarding the PPACA and the Florida case.
MR. BURNS, in response to additional questions, offered his hope
that he would always uphold his ethical obligations, and relayed
that should he ever be faced with an ethical conundrum, he would
seek guidance from his own ethical advisers before taking
action.
REPRESENTATIVE GRUENBERG opined that the legislature and the
public needs to know whether there might be a conflicting duty
of confidentiality that would prevent Mr. Burns from telling the
legislature and the public what it should know. Representative
Gruenberg then asked Mr. Burns whether he thinks that oil
companies should have to produce on leased lands.
MR. BURNS said that it would depend on the contractual
obligations set forth in the lease. However, in general, he
opined, when deciding whether to lease land to an oil company,
one of the factors the State ought to consider is the question
of whether the oil company should also be required to develop
that leased land. In response to comments and another question,
he relayed that his responsibility would be to evaluate an
oil/gas lease and then give solid legal advice pertinent to that
particular lease, and not necessarily to simply defend the
State's position in any ensuing litigation. In response to
other comments and a further question, he assured the committee
that the DOL has an aggressive internship program, and has been
seeking to recruit, and has succeeding in recruiting, the best
and brightest law school graduates from across the nation.
REPRESENTATIVE GRUENBERG and REPRESENTATIVE PRUITT indicated
that they would be voting in favor of Mr. Burns's appointment to
the position of attorney general.
1:52:20 PM
REPRESENTATIVE THOMPSON made a motion to advance from committee
the nomination of John J. Burns to the position of Attorney
General. There being no objection, the confirmation was
advanced from the House Judiciary Standing Committee.
The committee took an at-ease from 1:52 p.m. to 1:56 p.m.
HB 150 - PROTECTION OF VULNERABLE ADULTS/MINORS
1:56:01 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 150, "An Act relating to the protection of
property of persons under disability and minors; relating to the
crime of violating a protective order concerning certain
vulnerable persons; relating to aggravating factors at
sentencing for offenses concerning a victim 65 years or older;
relating to the protection of vulnerable adults; amending Rule
12(h), Alaska Rules of Criminal Procedure; amending Rule 45(a),
Alaska Rules of Criminal Procedure; amending Rule 65, Alaska
Rules of Civil Procedure; amending Rule 17, Alaska Rules of
Probate Procedure; amending Rule 9, Alaska Rules of
Administration; and providing for an effective date."
CHAIR GATTO noted that the subcommittee on HB 150 has produced a
final report [detailing the differences between the original
bill and a proposed committee substitute included in members'
packets].
1:56:32 PM
REPRESENTATIVE THOMPSON moved to adopt the proposed committee
substitute (CS) for HB 150, Version 27-GH1722\I, Mischel,
3/17/11, as the working document.
REPRESENTATIVE HOLMES objected for the purpose of discussion.
1:58:15 PM
SARAH MUNSON, Staff, Representative Carl Gatto, Alaska State
Legislature, referring to the aforementioned final report,
explained that Version I contains a new Section 1 and a new
Section 2 that propose to change the phrase, "an elderly person
or disabled adult" to the phrase, "a vulnerable adult" in AS
08.29.200(b)(2) and AS 08.63.200(b)(2) respectively; these new
sections were added at the request of the Department of Law
(DOL) and the revisor of statutes because the phrase, "a
vulnerable adult" is what's now being used by the DOL to mean
someone [18 years of age or older] who meets certain
vulnerability criteria. Under Version I, proposed AS
13.26.207(a) now contains the words, "and other persons as
ordered by the court" in the second to last sentence after the
words, "respondent's attorney"; this change to Alaska's
temporary conservatorship statutes would allow the court to
notify those who would most need to know about the
conservatorship, such as various financial institutions.
MS. MUNSON explained that Proposed AS 13.26.209(a) underwent two
changes: first, it now contains the additional sentence, "A
petition filed on behalf of a protected person by another person
must be accompanied by proof of service of the petition on the
protected person or the person's attorney unless service would
cause an immediate threat of harm to the best interests of the
protected person and the petition includes a written explanation
of the harm."; and, second, the last sentence now reads, "The
court shall cause a copy of the protective order, any related
orders, and a scheduling order, if any, to be served on the
respondent and the protected person." These changes regarding
notification address a concern raised in the subcommittee
meeting that an ex parte protective order could be used by
someone to victimize a vulnerable adult; under these two
changes, a vulnerable adult would be notified of the ex parte
protective order unless such notification would be harmful to
him/her.
REPRESENTATIVE GRUENBERG, in response to a question regarding
Sections 1 and 2 of Version I, noted that the term, "vulnerable
adult" is defined in AS 47.24.900 as:
(16) "vulnerable adult" means a person 18 years of age
or older who, because of physical or mental
impairment, is unable to meet the person's own needs
or to seek help without assistance.
MS. MUNSON added that Section 43 of Version I is proposing to
amend that definition thus:
(16) "vulnerable adult" means a person 18 years of age
or older who, because of incapacity, mental illness,
mental deficiency, physical illness or disability,
advanced age, chronic use of drugs, chronic
intoxication, fraud, confinement, or disappearance
[PHYSICAL OR MENTAL IMPAIRMAENT], is unable to meet
the person's own needs or to seek help without
assistance.
2:06:07 PM
MS. MUNSON then explained that proposed AS 13.26.209(d) now
stipulates that notice shall additionally be provided to the
protected person; this is a conforming change regarding
notification of a hearing to extend an ex parte protective
order. In Version I's proposed AS 13.26.209(f), the first
sentence now reads, "A third party that has received actual or
legal notice of a protective order issued under this section
shall comply with the order."; the sentence that began with the
words, "A third person" now begins with the words, "A third
party"; and there is now an additional sentence that says, "As
used in this section, 'actual or legal notice' means delivery by
mail or facsimile at the most recently known place of residence
or business of the third party or registering with the
Department of Public Safety." These changes to proposed AS
13.26.209(f) were suggested by the administration, and reflect
how notice would be provided to third parties such as banks.
MS. MUNSON explained that what was formerly proposed AS
13.26.325 - pertaining to the definition of the word, "fraud" -
was changed in Version I to proposed AS 13.26.324; this change
reflects the fact that a section 325 has already been used in
AS 13.26. Furthermore, proposed AS 13.26.324(2) now more
accurately defines the word, "fraud" in part as, "offenses
against property under AS 11.46.100 - 11.46.740"; and a
conforming change to a similar definition in AS 44.21.415(g) is
being proposed via a new Section 14. Version I's proposed AS
18.65.530(a)(2) fixes a drafting error - noticed by Legislative
Legal and Research Services - via use of the word, "or" instead
of the word, "and". Proposed AS 47.24.010(e) now retains the
existing phrase, "at the earliest opportunity"; this change
ensures that law enforcement officers won't unnecessarily delay
notification.
2:13:04 PM
MS. MUNSON referred to the new subsections being added to AS
47.24.015, and explained that in Version I, proposed subsection
(h) has been rewritten such that in order to conduct an
investigation, the department must seek a subpoena - this change
addresses a concern that as originally written, subsection (h)
raised Fourth Amendment issues; that when subsection (h) was
rewritten, the language in the original bill's proposed
subsection (j) became obsolete, and so Version I no longer
contains that language and the remainder of AS 47.24.015's
proposed subsections have been relettered accordingly; that that
deletion has also resulted [in the deletion of language in the
bill reflecting an indirect court rule change to Rule 65 of the
Alaska Rules of Civil Procedure]; and that Version I's proposed
subsection (m) now uses the phrase, "maintained by any person"
rather than unnecessarily providing for a specific list of
people/entities that maintain financial records, since if the
department wants access to financial records, it doesn't matter
who is holding them.
MS. MUNSON explained that to reflect the statutory creation of
[temporary conservatorships via proposed AS 13.26.207], Version
I's proposed AS 47.24.016(a) now also references conservators;
this conforming change was also made to proposed AS 47.24.017(a)
[and to the first sentence in proposed AS 47.24.050(b)].
Furthermore, proposed AS 47.24.016(a)(1) now also references
legal separation proceedings, thereby precluding a spouse who
has initiated such a proceeding from being selected by the
department as a vulnerable adult's [surrogate decision maker].
Proposed AS 47.24.19(c), in two places, now references "person"
instead of providing for a list of specific people against whom
the department may seek an injunction preventing interference in
the provision of protective services; this change reflects the
fact that anyone who is interfering in a vulnerable adult's
receiving of protective services should be stopped.
REPRESENTATIVE GRUENBERG, in response to a question, explained
that the term, "attorney-in-fact" as used in AS 47.24 refers to
a person operating under power of attorney or some other
delegation of authority.
MS. MUNSON noted that the aforementioned conforming change
regarding conservators should also be made to the second
sentence in proposed AS 47.24.050(b) via an amendment that would
add the term, "conservator," to page 16, line 14, after the
term, "guardian,".
2:19:30 PM
MS. MUNSON went on to explain that proposed AS 47.24.900(2)(A) -
which defines the word, "abuse" in terms of an action taken with
a specific culpable mental state - now also includes the
culpable mental state of "knowing". Proposed AS 47.24.900(4)
now uses the term, "includes", rather than the term, "means", in
its definition of the term, "informed decision"; this change
ensures that being free from undue influence would be considered
a component of, rather than a strict definition of, an informed
decision.
REPRESENTATIVE LYNN questioned whether the bill - for purposes
of ensuring that vulnerable adults are making an informed
decision - addresses the issue of interpreters for those not
fluent in English.
MS. MUNSON offered her understanding that the bill does not
specifically address that issue, but ventured that arranging for
an interpreter would be part of the protective services that the
department provides to a vulnerable adult. She surmised that no
one would consider a vulnerable adult to have consented to
something that he/she didn't understand.
MS. MUNSON went on to explain that proposed AS 47.24.900(7)(B)
now also includes the term, "fraud," in its definition of the
term, "exploitation", as well as a reference to proposed AS
13.26.324(1) and (2)'s specific definition of the term, "fraud".
She noted that in order to avoid using circular logic, proposed
AS 13.24.324(3)'s aspect of the term, "fraud" was specifically
not included in the definition of that term as it's being used
in proposed AS 47.24.900(7)(B) to partly define the term,
"exploitation". Proposed 47.24.900(9) - which defines the term
"neglect" - now also includes the culpable mental state of
"knowing"; and now uses the term, "includes", rather than the
term, "means", in its definition of the phrase, "essential care
or services". This latter change addresses the possibility that
essential care and essential services aren't only food,
clothing, shelter, medical care, and supervision.
2:26:02 PM
MS. MUNSON explained that proposed AS 47.24.900(11) - which
defines the term, "protective services" - has undergone some
formatting and wording changes but not changes to meaning. One
example of a wording change is that what is now proposed
subparagraph (D) says, "staying financial transactions" instead
of, "freezing an account at a financial institution". Proposed
AS 47.24.900(15)(D) - which contains an aspect of the definition
of the phrase, "unable to consent" - now also includes the
concepts of waste or dissipation of income or assets. Proposed
AS 47.24.900(18) has been rewritten such that it now defines the
term, "fiduciary duty" to mean "the duty of a third party who
stands in a position of trust or confidence with another person,
including a vulnerable adult, to act with due regard for the
benefit and interest of that person"; this definition, she
relayed, comes from [a 1969 Alaska Supreme Court case, Paskvan
v. Mesich].
MS. MUNSON explained that proposed AS 47.24.900(21) has been
rewritten such that it now defines the term, "undue influence"
to mean, "the use by a person who stands in a position of trust
or confidence of the person's role, relationship, or authority
to wrongfully exploit the trust, dependency, or fear of a
vulnerable adult to gain control over the decision making of the
vulnerable adult, including decision making related to finances,
property, residence, and health care". This definition, in
addition to partially conforming to language used in other parts
of the bill regarding persons who stand in a position of trust
or confidence, replaces the concept of "deceptively" with the
concept of "wrongfully" in order to avoid using circular logic.
REPRESENTATIVE GRUENBERG noted that one could act wrongfully in
exerting undue influence coercively, for example, but still not
be acting deceptively, [thereby indicating that "wrongfully" is
the more inclusive term].
MS. MUNSON went on to explain that Version I's proposed direct
court rule change to Rule 12(h) of the Alaska Rules of Criminal
Procedure - regarding continuance of trial - now involves the
addition of the following language after that rule's existing
first sentence: "In deciding whether to grant the motion, the
court shall consider the victim's circumstances and the effect
the delay would have on the victim, particularly a victim of
advanced age or extreme youth. The court shall place its
findings on the record.". Similarly, Version I's proposed
direct court rule change to Rule 45(a) of the Alaska Rules of
Criminal Procedure - regarding priorities in scheduling criminal
cases - now involves the addition of the following sentence
after that rule's existing second sentence: "The court shall
consider the circumstances of the victim, particularly a victim
of advanced age or extreme youth, in setting the trial date.".
These two direct court rule changes, she indicated, would ensure
that the court considers the age of the victim without simply
giving preference to a certain group of people over others based
on age, and are necessary in order to address the problem of
some cases either being delayed or not going to trial at all
because a witness or the victim himself/herself has died as a
result of his/her advanced age.
MS. MUNSON explained that under Version I, Section 47's
subsection (c) is now proposing an amendment to uncodified law
to reflect the fact that [the last sentence of] Version I's
proposed AS 13.26.207(a) would effect an indirect court rule
amendment to Rule 77 of the Alaska Rules of Civil Procedure by
requiring a hearing within 72 hours of the filing of a petition
for the appointment of a temporary conservator. In conclusion,
she relayed that in order to ensure that the [Alaska Court
System (ACS)] has enough time to create the forms necessitated
by the enactment of HB 150, Version I is now proposing an
effective date of July 1, 2011, rather than an immediate
effective date as proposed in the original bill.
REPRESENTATIVE HOLMES removed her objection to the motion to
adopt Version I as the working document. There being no further
objection, Version I was before the committee.
2:35:45 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
add the word, "conservator," to page 16, line 14, after the
word, "guardian,". There being no objection, Amendment 1 was
adopted.
REPRESENTATIVE GRUENBERG then directed attention to language on
page 8, lines 9-10 - existing AS 44.21.415(g)(2) - defining the
term, "older Alaskan" to mean a person residing in the state who
is 60 years of age or older. Noting that AS 44.21.415
establishes the duties of the state's office of elder fraud and
assistance, he questioned whether that statute ought to be
amended such that that office could then provide assistance to
any person 60 years of age or older who is physically present in
Alaska regardless of whether he/she actually resides in Alaska.
The committee took an at-ease from 2:39 p.m. to 2:49 p.m.
REPRESENTATIVE GRUENBERG, referring to an issue raised earlier
by Representative Lynn, asked whether there were any provisions
of statute that provide the right of an interpreter to a
vulnerable adult not fluent in English.
2:53:08 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), explained that federal law requires the court to provide
interpreters to any non-English-speaking persons involved in a
court proceeding.
2:53:54 PM
SCOTT STERLING, Supervising Attorney, Elder Fraud and
Assistance, Office of Public Advocacy (OPA), Department of
Administration (DOA), in response to questions regarding AS
44.21.415 and the term, "residing" as used in its subsection
(g)(2)'s definition of "older Alaskan", explained that his
office first ascertains whether an elderly person who has been
victimized has established actual residency in Alaska, or
whether he/she was victimized while just visiting the state. If
the latter, then his office still attempts to provide what
assistance it can, but doesn't normally engage in full-fledged
representation. For example, his office will provide an older
visitor who's been victimized with a reference to law
enforcement, and will help him/her get immediate assistance from
social service agencies if needed. He mentioned that such cases
are rare, that it's more common that an Alaska resident who was
exploited while living in Alaska then moves out of state, and
it's his office's policy to then finish the [advocacy] work
begun while the victim was residing in Alaska. He noted, too,
that because the statute uses the term, "person" rather than the
term, "citizen", his office would provide assistance to an
illegal alien residing in Alaska who's been victimized, although
to date no such person has sought assistance from his office.
MR. STERLING, in response to questions regarding interpreters,
explained that when his office gets a client who requires an
interpreter, his office attempts to find a pro bono interpreter
in order to better communicate with that client, and has done so
in two instances that he is aware of. He is unaware, however,
of any specific statute, court rule, or constitutional provision
that requires an executive branch agency to provide an
interpreter to a person seeking services, though under his
ethical obligations as an attorney, he added, if he is unable to
find a pro bono interpreter, he would seek permission from his
superiors to retain one. In response to a further question, he
opined that in terms of his office's operations and provision of
services under AS 44.21.415, the current system is working
pretty well with volunteer interpreters, and relayed should he
ever need to actually retain an interpreter, he would do his
best to persuade his superiors to allow it.
REPRESENTATIVE GRUENBERG indicated a desire to research that
issue further.
REPRESENTATIVE THOMPSON - referring to the language of proposed
AS 13.26.209(f) that read, "As used in this section, 'actual or
legal notice' means delivery by mail or facsimile at the most
recently known place of residence or business of the third party
or registering with the Department of Public Safety." - asked
how registering with the Department of Public Safety (DPS)
constitutes notifying a third party about the existence of a
protective order.
3:04:01 PM
KELLY HENRIKSEN, Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law (DOL),
surmising that [the third party referred to in that provision is
primarily going to be a financial institution], explained that
the language regarding registering with the DPS refers to the
DPS's registry of protective orders, and that once a protective
order is so registered, that in itself is considered to be
providing legal notice, since financial institutions already
check that registry during the normal course of business. She
offered her belief, additionally, that such businesses could
simply set up a system of routinely checking that registry every
day.
REPRESENTATIVE GRUENBERG questioned what the impact would be of
removing the language regarding registering a protective order
with the DPS.
MR. STERLING predicted that it could prove very difficult for a
vulnerable adult from a rural area of the state to deliver
actual notice to a financial institution that doesn't have a
branch in the area. The language providing the alternative of
registering a protective order with the DPS would remedy such
situations. He acknowledged, though, that under the current
language of proposed AS 13.26.209(f), perhaps simply sending a
facsimile of the protective order to the financial institution's
nearest branch or headquarters would suffice, particularly given
that rarely are financial institutions locally owned and
operated anymore. He also mentioned that although the financial
institutions that his office deals with have uniformly been very
cooperative in attempting to stop fraudulent activity, they have
relayed that they often feel constrained by provisions of the
law that require them to honor even a nominally-valid power of
attorney. The hope is that providing for a protective order
would protect both the third party and the vulnerable adult from
the fraudulent acts of the respondent.
[Chair Gatto turned the gavel over to Vice Chair Thompson.]
VICE CHAIR THOMPSON questioned whether proposed AS 13.26.209(f)
ought to be amended such that the protective order would have to
be both delivered by mail or facsimile and registered with the
DPS.
MR. STERLING surmised that such a change might prove more
burdensome on the vulnerable adult - the victim - than would be
desirable. Again, providing that a protective order registered
with the DPS is legally noticed to a third party would give the
victim another option in situations where he/she is unable to
deliver actual notice.
[Vice Chair Thompson returned the gavel to Chair Gatto.]
MS. HENRIKSEN concurred.
[After the following motion but before adjournment, members
thanked various staff members and department personnel for their
subcommittee work on HB 150.]
3:16:58 PM
REPRESENTATIVE THOMPSON moved to report the proposed CS for
HB 150, Version 27-GH1722\I, Mischel, 3/17/11, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection,
CSHB 150(JUD) was reported from the House Judiciary Standing
Committee.
3:20:13 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:20 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB150 Supporting Documents-Letter ACoA 03-07-11.pdf |
HJUD 3/18/2011 1:00:00 PM |
HB 150 |
| John J. Burns Biography.pdf |
HJUD 3/18/2011 1:00:00 PM |
|
| John J. Burns Resume 03-02-11.pdf |
HJUD 3/18/2011 1:00:00 PM |
|
| HB150 CS Version I 03-17-11.pdf |
HJUD 3/18/2011 1:00:00 PM |
HB 150 |
| HB150 Working Group Final Report 03-18-11.pdf |
HJUD 3/18/2011 1:00:00 PM |
HB 150 |