03/17/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR18 | |
| HB366 | |
| HB369 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 366 | TELECONFERENCED | |
| *+ | HB 369 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HJR 18 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 17, 2014
1:20 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Charisse Millett
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
Representative Bob Lynn, Vice Chair
Representative Neal Foster
Representative Gabrielle LeDoux
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 18
Proposing amendments to the Constitution of the State of Alaska
relating to the office of attorney general.
- MOVED HJR 18 OUT OF COMMITTEE
HOUSE BILL NO. 366
"An Act relating to reporting an involuntary mental health
commitment to the National Instant Criminal Background Check
System; and relating to relief from disabilities of a record of
involuntary commitment and an adjudication of mental illness or
mental incompetence."
- MOVED CSHB 366(STA) OUT OF COMMITTEE
HOUSE BILL NO. 369
"An Act relating to limited immunity from criminal prosecution
for a person who seeks medical assistance for a person
experiencing a drug overdose."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HJR 18
SHORT TITLE: CONST. AM: ELECTED ATTORNEY GENERAL
SPONSOR(s): REPRESENTATIVE(s) STOLTZE
01/21/14 (H) PREFILE RELEASED 1/10/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) STA, JUD, FIN
02/04/14 (H) STA AT 8:00 AM CAPITOL 106
02/04/14 (H) Heard & Held
02/04/14 (H) MINUTE(STA)
02/11/14 (H) STA AT 8:00 AM CAPITOL 106
02/11/14 (H) Moved Out of Committee
02/11/14 (H) MINUTE(STA)
02/12/14 (H) STA RPT 2DP 2NR 2AM
02/12/14 (H) DP: GATTIS, KELLER
02/12/14 (H) NR: KREISS-TOMKINS, LYNN
02/12/14 (H) AM: ISAACSON, HUGHES
02/19/14 (H) JUD AT 1:00 PM CAPITOL 120
02/19/14 (H) Heard & Held
02/19/14 (H) MINUTE(JUD)
02/28/14 (H) JUD AT 1:00 PM CAPITOL 120
02/28/14 (H) Heard & Held
02/28/14 (H) MINUTE(JUD)
03/03/14 (H) JUD AT 1:00 PM CAPITOL 120
03/03/14 (H) Heard & Held
03/03/14 (H) MINUTE(JUD)
03/12/14 (H) JUD AT 1:00 PM CAPITOL 120
03/12/14 (H) -- MEETING CANCELED --
03/14/14 (H) JUD AT 1:00 PM CAPITOL 120
03/14/14 (H) Heard & Held
03/14/14 (H) MINUTE(JUD)
03/17/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 366
SHORT TITLE: INVOLUNTARY COMMITMENT
SPONSOR(s): REPRESENTATIVE(s) PRUITT
02/26/14 (H) READ THE FIRST TIME - REFERRALS
02/26/14 (H) STA, JUD
03/11/14 (H) STA AT 8:00 AM CAPITOL 106
03/11/14 (H) Moved CSHB 366(STA) Out of Committee
03/11/14 (H) MINUTE(STA)
03/12/14 (H) STA RPT CS(STA) NT 2DP 3NR 1AM
03/12/14 (H) DP: KELLER, KREISS-TOMKINS
03/12/14 (H) NR: GATTIS, HUGHES, LYNN
03/12/14 (H) AM: ISAACSON
03/17/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 369
SHORT TITLE: IMMUNITY FOR DRUG RELATED OFFENSE
SPONSOR(s): REPRESENTATIVE(s) PRUITT
02/26/14 (H) READ THE FIRST TIME - REFERRALS
02/26/14 (H) JUD
03/17/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
MORGAN HOPSON, Staff
Representative Lance Pruitt
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of the prime sponsor,
Representative Lance Pruitt, presented a technical overview of
HB 366.
NANCY MEADE, General Counsel
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding HB 366.
JAKE McGUIGAN, Director
Government Relations and State Affairs
National Shooting Sports Foundation (NSSF), Inc.
Newtown, Connecticut
POSITION STATEMENT: Testified in support of HB 366.
KATHLEEN STRASBAUGH, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 366.
MIKE COONS
Palmer, Alaska
POSITION STATEMENT: Requested clarification of veterans' issues
regarding HB 366.
DARYL NELSON
MindFreedom Alaska, Affiliate
MindFreedom International
Chugiak, Alaska
POSITION STATEMENT: Testified in opposition to HB 366.
BONNIE NELSON
MindFreedom Alaska, Affiliate
MindFreedom International
Chugiak, Alaska
POSITION STATEMENT: Testified in opposition to HB 366.
MORGAN HOPSON, Staff
Representative Lance Pruitt
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of the prime sponsor,
Representative Lance Pruitt, presented an overview of HB 369.
KATHLEEN STRASBAUGH, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 369.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 369.
ACTION NARRATIVE
1:20:16 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:20 p.m. Representatives Millett, Pruitt,
Gruenberg and Keller were present at the call to order.
Representative Lynn arrived as the meeting was in progress.
HJR 18-CONST. AM: ELECTED ATTORNEY GENERAL
1:21:10 PM
CHAIR KELLER announced that the first order of business would be
HJR 18, Proposing amendments to the Constitution of the State of
Alaska relating to the office of attorney general.
1:22:02 PM
REPRESENTATIVE PRUITT moved to report HJR 18 out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE GRUENBERG objected and then removed his
objection.
1:22:46 PM
There being no further objection, HJR 18 was reported from the
House Judiciary Standing Committee.
1:22:55 PM
The committee took an at-ease from 1:22 p.m. to 1:25 p.m.
HB 366-INVOLUNTARY COMMITMENT
1:25:05 PM
CHAIR KELLER announced that the next order of business would be
HB 366, "An Act relating to reporting an involuntary mental
health commitment to the National Instant Criminal Background
Check System; and relating to relief from disabilities of a
record of involuntary commitment and an adjudication of mental
illness or mental incompetence."
1:25:10 PM
REPRESENTATIVE MILLETT moved to adopt [CSHB 366(STA)] as the
working document.
CHAIR KELLER objected.
1:25:45 PM
REPRESENTATIVE PRUITT, speaking as the prime sponsor, advised
that HB 366 was requested by the National Shooting Sports
Foundation (NSSF), which includes entities such as Smith &
Wesson, Ruger, and other gun manufacturers typically identified
with guns. House Bill 366 communicates information of an
individual who has been adjudicated with a 30-day involuntary
commitment to the National Instant Criminal Background Check
System (NICS) database. The database is used by a Federal
Firearms Licensee (FFL) when performing background checks. He
explained that the database informs the FFL of three things:
yes, no, or need more time of which is the 3-day waiting period
when further investigation is required. He further explained
that the information passed on to the database is very minimal
and does not include [diagnostic or clinical treatment
information] regarding the 30-day involuntary commitment, but
does offer the individual's name, date of birth, and social
security number, if the information is available. He said there
is a provision for [relief from legal disability], which offers
the individual the ability to remove his/her name from the
[NICS] database after a period of time, several considerations,
and a judge's determination. He stated that HB 366 is not anti-
gun legislation nor targeted against individuals with mental
health concerns: It is a pragmatic approach to concerns people
have related to gun sales. The National Rifle Association of
America (NRA) and President [Barack Obama] indicated, after the
recent event at Sandy Hook, that [legislatures] should put
additional effort into determining which individuals have mental
challenges and offering individuals with mental challenges the
services they need. Therefore, additional checks are necessary
to establish that gun ownership is placed in the right hands, he
opined.
1:29:56 PM
MORGAN HOPSON, Staff, Representative Lance Pruitt, Alaska State
Legislature, informed the committee that in 2013 the FFL made
over 90,000 inquiries to the database. She explained that an
inquiry is noted each time an individual attempts to purchase a
firearm; the FFL's check the NICS database to determine if there
is a reason to deny, proceed, or delay the decision to sell a
firearm to that individual. Alaska has the second highest
amount of inquiries in the nation, in the amount of
approximately 127 inquiries per 1,000 Alaskans each year.
However, currently, there is only one Alaskan name in the NICS
database that is precluded from gun [ownership] under federal
law for mental health reasons. In comparison, Texas has several
hundred thousand people in the NICS database. Ms. Hopson
conveyed that each member's packet contains a map entitled
"Where Does Your State Stand" which depicts the number of mental
health records provided to NICS from each state. She explained
that although it is federal law, Alaska is one of very few
states that does not report certain persons for mental health
reason. When an individual is adjudicated in the courts their
name, date of birth, social security number, and state driver's
license, if known, is reported to the courts, she explained.
1:31:38 PM
MS. HOPSON noted that she and Nancy Meade, Alaska Court System,
worked together in determining that it would be an easy process
for [the court] reporting and ensuring that all of the
aforementioned information, if known, was critical because in
many of these cases the information is not available. Under HB
366, subsequent to an individual being adjudicated for mental
health reasons, he/she is involuntarily committed and at that
point the courts transfer these records "immediately." She
opined that due to the essence of the issue, the sponsor
specifically included the word "immediately." She noted that
other states have "looser" reporting requirements than Alaska.
For instance, Minnesota has a 3-business day reporting
requirement, while others require reporting within 30 days. The
federal term is different and probably not as up-to-date as the
terms used in the Alaska State Statute for persons with mental
health issues. Individuals who are precluded are already
precluded under federal law, Alaska has not set up a reporting
system for that to take place. Within the 90,000 inquiries a
year, there are persons with very serious mental health issues
to whom FFLs should not be selling firearms as it is an
increased liability to the FFLs and to Alaskans as well. There
is a very strict process within which an individual's name could
be removed from the list. Ms. Hopson stated they had reviewed
other states with an appeal process and spoke with NRA people
who had reviewed this process in other states, in order to
determine that the appeal process is very accessible to people
while offering a very high level of scrutiny to their mental
health at that time.
1:33:49 PM
REPRESENTATIVE MILLETT surmised that information is precluded
for individuals who have not committed a crime but have been
adjudicated to a mental health facility for 30 days by a parent
and/or guardian ad litem.
MS. HOPSON responded that if a family member or someone brought
to the attention of the court system that an individual should
be evaluated, subsequent to the judge adjudicating [an
involuntary commitment], the person's name would be forwarded.
REPRESENTATIVE MILLETT further surmised that an individual who
is picked up, taken to Providence for a mental health screening,
and is held for 24 hours are not included in HB 366.
MS. HOPSON responded, "That is correct."
1:35:28 PM
REPRESENTATIVE MILLETT remarked that she understands the
liability for gun manufacturers. With regard to the mass
shootings that have happened, she inquired as to how many [of
the perpetrators/shooters in the mass shootings] had been
adjudicated and should have been on NICS database. She recalled
that most of the shooters [in the mass shootings] shouldn't have
owned guns as they were under the age of 18 and had stolen the
guns. She queried whether HB 366 is fixing a problem. She also
queried whether there is any other reason than the gun
manufacturers that would support the adoption of HB 366.
MS. HOPSON responded that according to Legislative Legal and
Research Services, HB 366 would not have prevented Sandy Hook as
the individual did not go through an FFL to purchase weapons.
However, HB 366 would have prevented the shooting at Virginia
Tech wherein the individual should have been in the database.
This proposed legislation would have prevented the 2004 shooting
of two Alabama police officers by Farron Barksdale who passed a
background check and purchased a rifle even though he had been
involuntarily committed multiple times. This legislation, HB
366, would have also prevented the 1998 killing of two police
officers at the U.S. Capitol by Russell Eugene Weston Jr. who
had passed a background check, but should have been flagged.
Another incident that could've been prevented by HB 366 is the
2011 shooting spree in which Jared Lee Loughner killed 6 and
wounded 13, including Congresswoman Gabrielle "Gabby" Giffords.
She opined that there are multiple shooting incidents HB 366
would have prevented.
1:38:01 PM
CHAIR KELLER referring to Section 3, page 3, [lines 9-18] and
questioned if the terms "sealing" and "expunging" are used in
Sections 4 and 5.
MS. HOPSON responded she does not believe Sections 4 and 5
address sealing or expunging.
1:38:36 PM
CHAIR KELLER clarified that Section 3 is similar to a reviser's
bill as it could be taken out and it would make no difference to
HB 366. He recalled that [AS 47.30.851] Relief from legal
disability or record was discussed in the House State Affairs
Standing Committee and Ms. Hopson and the court agreed to
provide information for changing Section 3 to be consistent with
existing law. Although it's an option for the courts to expunge
or seal records, currently the courts do not expunge records.
He explained that the driver in HB 366 is that records
definitely cannot be expunged from NICS as it is a federal
database and Alaska does not have control over federal
information. He related his understanding that the Alaska State
Legislature could require expungement of Alaska's court files as
the legislature gave [the court] the option in the past; HB 366
removes expungement and goes to the sealing of records.
1:41:55 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System (ACS), in
response to Representative Gruenberg, explained the court has
two levels of privacy for court records: expunging and sealing.
One is confidential records and the other is sealing, which is
much more restrictive, she explained. The court does not have a
means of expunging. Although the court would expunge records if
the legislature told it to do so, the definition of expunge is
not in the Alaska Rules of Court, she noted. She concluded that
expunge would mean the absolute destruction of the record
whether by burning or shredding. In further response to
Representative Gruenberg, Ms. Meade reiterated that the court
system does not expunge records.
1:43:27 PM
REPRESENTATIVE GRUENBERG surmised then that someone could review
a record marked confidential.
1:43:37 PM
MS. MEADE responded that the court has very distinct definitions
of sealed versus confidential. She explained that confidential
records are accessible by the judge, parties to the case,
attorneys to the case, and court personnel for case processing
purposes only. They are kept in a florescent envelope and are
never handed across the counter to someone and are kept off of
CourtView. She further explained that sealed records are more
restrictive as they are only accessible to the judge and to an
individual with a written court order, not to the judge's
administrative assistant, not to court clerks, no one can touch
those.
1:45:01 PM
CHAIR KELLER opened public testimony.
1:45:10 PM
JAKE McGUIGAN, Director, Government Relations and State Affairs,
National Shooting Sports Foundation (NSSF), Inc., advised that
the National Shooting Sports Foundation (NSSF) is the trade
association for the firearms industry and represent over 10,000
manufacturers, retailers, and distributors nationwide and over
50 members are based in Alaska. He explained that the FixNICS
initiative is a nationwide campaign by NSSF to ensure that
mental health records are utilized in the National Instant
Criminal Background Check System (NICS). He related that the
intention is not to expand categories of prohibited individuals
but rather to include in NICS individuals who have been
involuntarily committed. He submitted that under federal law,
involuntarily committed individuals are prohibited from owning a
firearm. With regard to events that could have been prevented,
Virginia Tech is one of the highest profile events in which the
individual [shooter] would have been in system and unable to
purchase a firearm. In a more recent incident, the Navy yard
shooter had some "situations" in Rhode Island, which is a state
that does not share mental health records with NICS. He related
that the National Shooting Sports Foundation's lobbyists and
consultants, in roughly 12 states, have had a great amount of
success in both the last and this legislative session. Most
recently, the South Dakota governor signed the FixNICS bill into
law. He described programs offered by NSSF, such as Project
Child Safe that focuses on the safe storage of firearms; Don't
Lie for the Other Guy that attempts to stop store purchases of
firearms by prohibited individuals; and the FixNICS campaign
unveiled last year. To be clear, he said, NSSF does not want to
discourage anyone from seeking treatment for any mental health
issues, from seeing a psychiatrist, or actually seeking mental
health assistance. The focus of NSSF is solely to include
individuals that have gone through the process of being
involuntarily committed in the NICS system. Another important
part for NSSF, as well as the National Rifle Association (NRA),
is that an individual's rights are appropriately restored, which
Representative Pruitt and the Alaska Court System made clear in
HB 366, he noted. He emphasized that NSSF does not intend to
thwart an individual who has obtained the appropriate treatment
and gone through the process from having their rights restored.
1:50:12 PM
REPRESENTATIVE GRUENBERG asked whether Mr. McGuigan is an
attorney. He then asked if HB 366 is based upon other state
laws, model acts, or uniform acts.
MR. McGUIGAN responded that he is not an attorney. In further
response to Representative Gruenberg, he explained that HB 366
has been used in other states and each piece is crafted for the
specific state. The NSSF usually uses the legislation that
passed in Mississippi and Louisiana. [The proposed legislation,
HB 366, in Alaska does not contain all of the categories the
NSSF would have liked to be included as it only includes
involuntarily commitment; there are other prohibitive categories
that could be included in the legislation.
1:51:48 PM
REPRESENTATIVE GRUENBERG asked whether there are significant
differences in the legislation that passed in Mississippi and
Louisiana. He also asked about [the basis of] South Dakota's
legislation.
REPRESENTATIVE PRUITT advised that South Dakota's legislation,
which passed last weekend, was based on other examples.
MS. HOPSON responded that the sponsor reviewed several different
states, including Hawaii which passed more recently and more
closely mirrors Alaska Statutes and the manner in which Alaska
drafts legislation. The sponsor also looked at Colorado, she
noted.
1:53:20 PM
REPRESENTATIVE GRUENBERG referred to Section 4, AS 47.30.851(d),
page 4, lines [16-18], which read:
A decision to grant or deny relief under this section
may be appealed as provided in AS 22.05.010. In
reviewing the decision of the superior court, the
standard of review may be de novo.
REPRESENTATIVE GRUENBERG stated the aforementioned language is
not in any other statute in Alaska and further stated that the
Supreme Court does not take evidence and does not do de novo.
Therefore, the use of the term "may" is ambiguous so he is
inclined to strike that sentence, he opined.
MS. HOPSON related that the language was included per the
suggestion of other states that had implemented this
legislation. However, Legislative Legal Counsel, Kathleen
Strasbaugh, mentioned that it is not a practice in Alaska, which
is explained in her memorandum dated February 24, 2014.
MS. MEADE specified that she did not have an opinion regarding
the sentence as she understood from Ms. Hopson that it was
necessary to meet federal requirements and was included for
other reasons. Ms. Meade did not object or ask for a change to
the sentence and does not have any particular insight with
regard to it, she opined.
1:58:16 PM
REPRESENTATIVE MILLETT, in response to Chair Keller, read from
page 3 of Ms. Strasbaugh's, 2/24/14 memorandum:
7. De Novo Judicial Review of a Denial: The State
provides for de novo judicial review of relief
application denials that includes the following
principals:
a. If relief is denied, the applicant may
petition the State court of appropriate jurisdiction
to review the denial, including the record of the
denying court, board, commission or other lawful
authority.
b. In cases of denial by a lawful authority other
than a State court the reviewing court has discretion
to receive additional evidence necessary to conduct an
adequate review.
c. Judicial review is de novo in that the
reviewing court may, but is not required to, give
deference to the decision of the lawful authority that
denied the application for relief.
1:59:12 PM
REPRESENTATIVE GRUENBERG stated he would like to review any
federal requirements because the word "may" is ambiguous as it
could be directory or discretionary.
1:59:35 PM
The committee took a brief at-ease.
1:59:47 PM
CHAIR KELLER related that Representative Gruenberg has indicated
that the language in Section 4 on page 4, lines 18-19, may
require a court rule change. He further related that
Representative Gruenberg questions of whether the standard of
review may be de novo. He recalled that Representative
Gruenberg also inquired as to the federal requirements [the
issue] addresses.
2:01:33 PM
KATHLEEN STRASBAUGH, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, referring to her 2/14/14 memorandum, related her
understanding, after reviewing the federal statute, that a full
hearing would be required at some point. She acknowledged there
are those who do not agree, but the legislation is drafted so
that it does not order the court to apply a particular standard
of review, and thus the court "may" apply that standard of
review. She noted that from time to time the court does use
that terminology to address legal matters and occasionally takes
a closer look at the factual determinations of the lower court
than it might otherwise. The legislation, she said, was not
designed to force the court to apply a particular standard of
review, and therefore she does not believe it requires a court
rule change. Furthermore, she opined she was not certain a
court rule would be effective to do that.
2:02:47 PM
REPRESENTATIVE MILLETT surmised that language used, "may" is
used rather than "shall," provides the court an option and does
not require a rule change.
MS. STRASBAUGH noted her agreement with Representative Millett's
understanding.
2:03:12 PM
REPRESENTATIVE GRUENBERG related his understanding that in a de
novo situation there would be a complete new hearing in front of
either the Supreme Court or a special master. He said he would
be surprised if federal or state law would require the Supreme
Court to conduct any kind of a hearing as that would be
"totally" unique, except for cases before the U.S. Supreme Court
in disputes between states, mainly boundary disputes, for which
the Supreme Court appoints a special master. He recalled that
occasionally an election dispute in this state [goes before the
Supreme Court].
MS. MEADE clarified that there is a standard of review of de
novo review and the Supreme Court does not conduct a full new
trial with witnesses taking oaths and testimony. She noted that
it exists as a way for an appellate court to review the record
of the lower court without giving deference to the lower court's
opinion. She advised that after reading [the language] she
thought the Supreme Court could then review it without giving
deference to the judge's determinations of fact and make their
own decision in that regard. In echoing Representative Millett,
she said she read it as discretionary due to the use of the term
"may" and did not view it as anything that would require a
change to practices.
2:05:00 PM
REPRESENTATIVE GRUENBERG stated he had not read it as Ms. Meade
presented it, although that is probably the way it was intended.
Usually when requesting an appellate court to review something
without deference to the lower court, the appellate court would
be provided more direction. He said he could see why a federal
law advising a state that it may provide either way, but when
Alaska provides new law at the state level it should be more
specific.
2:06:19 PM
MIKE COONS, speaking for himself, related his understanding that
the NICS check is performed through Alaska NICS and not through
the federal system. He then questioned how an individual's name
would be removed from the NICS [database] when the individual is
no longer a threat to themselves, others, or the public
interest. Turning to another issue, he noted that the Veteran's
Affairs (VA) is currently putting people's names into NICS
because they are being treated for post-traumatic stress
disorder (PTSD), a brain injury sustained in combat, or have
been prescribed antidepressants, yet they have never been
committed or adjudicated. He asked whether HB 366 could put a
stop to the VA's actions for veterans in Alaska.
2:08:36 PM
REPRESENTATIVE PRUITT responded "No," Alaska is not set up to do
its own reporting. Although some states do have their own
system, Alaska uses the Federal Bureau of Investigation (FBI),
he noted. In response to the second issue, the district
attorney (DA) does not randomly place information into the NICS
database. As a matter of fact there is only one record from
Alaska and no one knows how it got there, he opined. He then
reiterated that the only way for information to be communicated
to the NICS database is through an adjudication of a 30-day
involuntary commitment and the process includes a high threshold
of time in front of a judge and a specific process.
2:10:46 PM
DARYL NELSON, MindFreedom Alaska, MindFreedom International,
related his opposition to HB 366 and any background checks or
approval for people who are disabled or mentally ill of any
kind. He commended Representative Millett for HB 69, last year,
and stated he supports that bill. He said he is against
Representative Kerttula wherein the government can dictate what
is best for an individual. He opined that individuals with
disabilities are in danger of losing their civil rights because
they may decide to live on the street, they may not want to be
in a nursing home or assisted living home. The judge's
decisions in the mental health court system are based upon
psychiatric doctor's [evaluations] and medications, he opined.
He further opined that judges listen to the psychiatric doctors,
who, in most cases, are listening to and driven by the drug
companies. He remarked that psychiatric doctors are "being
bought off by the drug companies and that is dangerous." He
related that he has cerebral palsy and suffered a brain injury,
which affects the motor functions of his body, and therefore he
is considered a possible a danger to himself. In that regard,
he said he has always been afraid of losing his civil rights as
it wouldn't take much if it wasn't for the support he receives
from his family. Mr. Nelson related his belief that HB 366 is
moving in the wrong direction and he is [not] against federal
banning of mental health laws, he said. He advised that he is a
member of the Repeal all Mental Health Laws and that there are a
number of members of MindFreedom Alaska all over the state and
nation.
2:15:11 PM
CHAIR KELLER clarified that HB 366 does not restrict firearms.
2:15:23 PM
REPRESENTATIVE MILLETT responded that she had some of the same
concerns as Mr. Nelson, but after reading through the bill and
the legal opinion she understood that only if Mr. Nelson is
committed to some type of psychiatric facility with a 30-day
involuntary commitment would he fall under HB 366 as individuals
with disabilities would not fall under this category. She
reiterated that an individual with a traumatic brain injury,
mental or physical disability would not fall under HB 366 and
their civil liberties would not be taken away. House Bill 366
protects individuals that are not disabled, but suffer from
psychiatric problems, she opined.
2:17:09 PM
BONNIE NELSON, MindFreedom Alaska, MindFreedom International,
stated she is Darryl Nelson's mother and they have worked
extensively with The Law Project for Psychiatric Rights
(PsychRights) as well as other international organizations and
protection and advocacy centers, such as the Disability Law
Center (DLC), and in other states as well. She voiced her
disagreement with Representative Millett's comment. She said
she has been advocating for approximately 33 years due to her
son's brain injury and due to the stigma, discrimination, and
labels he has not deserved. She noted that she suffers from
multiple disabilities and has also been discriminated against.
She related that her son now has a college degree, has worked as
an advocate for five years with the Alaska Public Interest
Research Group (AKPIRG), and has worked as a coordinator for
several years with Access Alaska. She opined that brain
injuries are defined as a mental defect in some of the laws,
such as the Alaska Mental Health Trust [Authority]. Many
individuals want to live on the street, but individuals who are
blind, deaf, own a service animal, or are in a wheelchair are
forced into nursing homes or assisted living homes and told they
are a danger to themselves. She opined there is a separate
tracking system in civil and mental health courts as individuals
do not have the same due process rights criminals are afforded
in criminal court. She further opined that judges only listen
to the expert testimony of a doctor and do not listen to family
members. Furthermore, she said that individuals cannot choose
their advocate or doctor who will be called before the judge to
offer expert testimony. She expressed that when an individual
is adjudicated for an evaluation of 30-days, that individual can
lose his/her right to own a gun. She remarked that James B.
Gottstein, President, PsychRights, told her that even though his
30-day commitment was 30 years ago he still thinks he cannot own
a gun. She related that she and Mr. Nelson, who has never been
a psychiatric patient or in the mental health system but has a
brain injury, attempted to buy a gun and [the form] asks if the
individual has ever been committed and have to answer "yes" or
"no," which determines whether or not one can buy a gun. She
pointed out that the word "criminal" is in the title of the
National Instant Criminal Background Check System database and
there are individuals who are determined to be a danger to
themselves that have never broken the law or done anything
criminal, and are usually the victims. She opined that
individuals want to live on the street because there is a long
waiting period for public housing and, she noted, if they live
with someone the individual's name is removed from the list.
She remarked that when an individual is committed they are put
on Medicaid because the system wants to get paid, nursing homes
and even community-based care wants to get paid on the waiver
system. "Follow the money," she urged. She stated that she and
Mr. Nelson are opposed to the United States federal law, and
suggested the Alaska State Legislature should rethink HB 366.
She remarked that the 33 states not imposing this legislation
are doing a very good thing by saying this is a state's rights
issue. She expressed that [18] U.S.C. § 922(g)(4) should be
changed because it is wrong to say someone does not have rights,
particularly since people with disabilities are the most in
danger of being a victim, not a criminal. Rather, the
legislature should be encouraging people with disabilities to
protect themselves from criminals, she opined
2:22:26 PM
MS. NELSON stated there is no statistical reporting that people
diagnosed with mental illness are any more violent or criminal
than the average population as evidenced from the Bazelon Center
for Mental Health Law, which works on behalf of people with
mental illness. She reiterated previous testimony and opined
that [the discussion is] state's rights, civil liberties, right
to live, and right to protect yourself issues. Veterans with
post-traumatic stress disorder (PTSD) who receive a 30-day
commitment should not receive a lifetime sentence of never
owning a gun, and also lose their Second Amendment rights, she
opined.
2:24:07 PM
The committee took a brief at-ease.
2:26:04 PM
CHAIR KELLER closed public testimony.
2:26:23 PM
REPRESENTATIVE GRUENBERG questioned why HB 366 language is
limited to involuntary mental health commitments. He posed a
scenario wherein an individual concerned about the involuntary
commitment issue decides to commit themselves so they cannot be
reported. On the other hand, he said, it could be a pressure
for an individual to commit themselves voluntarily in order to
not be in the data base. He inquired as to why the involuntary
aspect of the commitment is a determining factor.
REPRESENTATIVE PRUITT pointed out that the authority regarding a
30-day [involuntary] commitment can be found in AS 47.30.730,
Procedure For 30-Day Commitment; Petition For Commitment, and AS
47.30.735 is the 30-day Commitment hearing. He responded that
if an individual voluntarily decides to commit themselves and
the state placed their information [on NICS], the individual
would not have been given the opportunity to move through the
judicial process. Involuntary commitment requires the
involvement of the judicial process and seven different pieces
must be addressed in the petition [before the matter] moves to
hearing. He relayed that he would be uncomfortable with a
process in which an individual does not go through the judicial
process and the individual's name is sent to NICS. Although he
acknowledged it was possible for an individual to go around the
system, he said he felt more comfortable with language requiring
the judicial process. He then explained that the petition must
be signed by two mental health professionals, one of which must
be a physician, who have examined the respondent. The petition
must allege that the respondent is mentally ill and is likely to
cause harm to self or to others. There are six additional
pieces required in the petition and the involuntary commitment
aspect of HB 366 is not addressing an individual who may have
some challenges, a brain injury, or someone on the streets with
mental concerns. He opined that the petition is very detailed
and it must be shown to the judge that the individual can either
harm themselves, or harm others. He described the seven
requirements as high thresholds for sending the matter forward
to the judge. He acknowledged that the National Instant
Criminal Background Check System includes the term "Criminal,"
but pointed out this is a federal law that was written over 20
years ago and it would literally take an act of Congress to
change the name of the system, he opined.
2:31:42 PM
REPRESENTATIVE MILLETT inquired as to how many involuntary
commitments have taken place for Alaskans over the age of 18
during the last 10 years.
MS. MEADE responded there are a fairly high number of 3-day
evaluations which are specifically excluded by HB 366. The 30-
day involuntary commitment petitions filed per year total
approximately 200-250 and a little under half of those petitions
are granted. Ms. Meade emphasized there is a strict process
that judges go through in following certain requirements that
must be met before petitions are granted.
2:33:38 PM
REPRESENTATIVE GRUENBERG referred to the language on page 4,
line 11, which requires the court to find the relevant facts by
a preponderance of the evidence. The language is written in the
passive tense rather than the active tense, which is normally
used. Furthermore, the language does not specifically indicate
who has the burden of proof, although he assumed the state would
bring these actions and would have the burden of proof.
REPRESENTATIVE PRUITT responded that Representative Gruenberg
was referring to Section 4, AS 47.30.851, Relief from legal
disability, wherein the burden of proof would be on the
defendant and further responded that Section 4 is the [remedy]
aspect of HB 366.
2:35:11 PM
REPRESENTATIVE GRUENBERG asked whether there was similar
language in the initial petition or in the law regarding who has
the burden of proof initially.
MS. MEADE responded she is not certain whether the statute
specifies what the burden of proof is, although it does specify
all the findings the court must make.
2:36:02 PM
REPRESENTATIVE MILLETT moved to report CSHB 366(STA) out of
committee with individual recommendations and the accompanying
fiscal notes.
2:36:15 PM
REPRESENTATIVE GRUENBERG objected, noting he had asked for a
reasonable amount of time to review issues.
CHAIR KELLER related his understanding that the questions
Representative Gruenberg raised have been answered.
2:36:57 PM
REPRESENTATIVE GRUENBERG noted the first issue he raised was on
page 4, lines 18-19, regarding the drafting and stated that he
may the only person on his side of the aisle to look at these
issues.
CHAIR KELLER expressed that he had given Representative
Gruenberg more than ample and equal time today and his questions
had been thoroughly answered. Chair Keller then asked
Representative Gruenberg to withdraw his objection.
REPRESENTATIVE GRUENBERG responded that he has asked for the
courtesy and did not see any prejudice; HB 366 could be taken up
on Wednesday.
2:37:54 PM
REPRESENTATIVE LYNN conveyed that it does not make a difference
if a member is in the majority or the minority as the members
leave their party affiliation at the door. He noted that
Representative Gruenberg had stated several times that he is the
only member of the minority and Representative Lynn did not feel
those comments were appropriate to the committee's actions.
CHAIR KELLER noted that the committee is run so there is ample
time for discussion and debate. He then stated that there are
the votes to move the bill. Furthermore, in light of the fact
there are other bills pending, he requested the roll be called.
2:38:57 PM
REPRESENTATIVE GRUENBERG removed his objection. There being no
further objection, CSHB 366(STA) was reported from the House
Judiciary Standing Committee.
2:39:16 PM
The committee took a brief at-ease.
HB 369-IMMUNITY FOR DRUG RELATED OFFENSE
2:41:00 PM
CHAIR KELLER announced that the last order of business would be
HB 369, "An Act relating to limited immunity from criminal
prosecution for a person who seeks medical assistance for a
person experiencing a drug overdose."
2:41:07 PM
REPRESENTATIVE PRUITT, speaking as prime sponsor, stated that
HB 369 is a form of limited criminal immunity for a person
seeking medical assistance for an individual experiencing a drug
overdose. Fourteen states have implemented a form of limited
immunity. Legislative Legal and Research Services has offered
an analysis that was performed in Washington that indicates what
could come about from HB 369. He opined that this legislation
focuses on public health rather than whether an individual
suffering from an overdose should go jail. As an example, he
related a situation in Washington in which two friends drove
around with another friend in the backseat who had overdosed on
an opiate. The two friends, who were fearful of legal
repercussions, were hoping their friend who overdosed would just
come out of it, but the friend ended up dying while in a very
close proximity to a hospital. Representative Pruitt noted that
in Washington during an overdose scenario police officers are
unlikely to actually arrest the individual or his/her friends.
However, he contended, most people in that situation are
concerned about the legal aspects of such a situation. The
intent of HB 369 is to create a situation in which an individual
does not have to decide between whether or not he/she will go to
jail by helping someone who is overdosing, but rather allows the
individual to make a good faith effort to assist the individual
wo his overdosing. To be clear, he said, HB 369 does not mean a
drug dealer/trafficker receives a "get out of jail free" card as
that will not happen. Also, the legislation does not allow an
individual to use this immunity multiple times as the goal is to
help people get their lives back on track without being worried
they have to make the choice between their friend dying or going
to jail.
2:46:53 PM
MORGAN HOPSON, Staff, Representative Lance Pruitt, Alaska State
Legislature, clarified the sponsor's intent with CSHB 369,
Version 28-LS1515\N, Strausbaugh, 3/14/14, is not to grant
immunity to persons who have the intention to distribute or
manufacture. The committee substitute specifically lists
immunity against certain possession charges. She highlighted
that prior to the State of Washington's law going into effect,
drug users were polled and approximately 50 percent said they
would call in regardless of their fear of legal ramifications.
After the law was passed, 88 percent of drug users said they
would call in. In the State of Washington, the idea was to
create assurances to drug users that they could call in. The
main focuses of HB 366 are saving the life of the individual
overdosing, treating the individual at the hospital, and
referring them for treatment. She explained that the sponsor
would like a good consensus on the appropriate threshold as far
as using HB 369 for immunity for persons who have possession,
but are not distributing or manufacturing.
2:49:23 PM
REPRESENTATIVE MILLETT recalled that during police ride alongs
she observed individuals who were left alone after a drug
overdose by other individuals were also using or had possession
of a small quantity of drugs and did not want a legal problem
from helping the individual overdosing. Drawing from
conversations with users, she surmised that an overdose that is
rock bottom and they turn their lives around as it is not
something that is pleasant to go through. She characterized
HB 369 as a safety net for people addicted to drugs as it may
keep them from dying. She noted her appreciation for HB 369,
particularly since the bill as the drug culture in Alaska is
changing to a young person's game and the legislation may save
lives.
2:52:00 PM
REPRESENTATIVE LYNN remarked that he has no patience with drug
abuse in all varieties and would prefer to see stronger [drug]
laws rather than weaker. Having said that, he related that he
is pro-life and the state cannot allow someone to not be
admitted for treatment for fear of being prosecuted. He related
his understanding that HB 369 is a one-time "get out of jail
free" card before an individual goes to jail. He then
emphasized that first it is important to save their lives and
HB 369 is a step in the right direction.
2:53:37 PM
REPRESENTATIVE PRUITT, in response to Chair Keller, confirmed
that the committee substitute is a work in progress in order to
ascertain that HB 369 is tight enough that individuals cannot
take advantage of it. Version N is the version Kathleen
Strasbaugh, Legislative Legal and Research Services, and Anne
Carpeneti, Department of Law (DOL), agreed upon, he related.
2:54:29 PM
KATHLEEN STRASBAUGH, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, deferred to the sponsor as to whether the draft achieves
the sponsor's objectives. She noted that she worked with the
Department of Law and does not know if other issues need to be
discussed.
2:54:55 PM
REPRESENTATIVE GRUENBERG related his understanding that Section
2 of most legislation involving criminal laws is regarding
applicability as it applies to offenses occurring before, on, or
after the effective date of the act. He requested clarification
on the matter.
MS. STRASBAUGH responded there is language in HB 369 specifying
an immunity rather than a defense. Section 2 is a general
formulation that Legislative Legal Services placed in the bill
itself to show how it applies, she explained.
2:56:05 PM
REPRESENTATIVE GRUENBERG suggested that rather than having a
"general" paragraph in most of the criminal laws, there should
be language in Title 12 that specifies unless a bill reads
otherwise, the change occurs on or after the effective date of
the act. He pondered whether the committee should explore
including that language in a general section in the Code of
Criminal Procedure as it appears regularly in most of these
criminal [bills].
2:57:35 PM
The committee took an at-ease from 2:57 p.m. to 3:00 p.m.
3:01:09 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), responding
to Representative Gruenberg's suggestion, stated that it is
currently contained in Title 1. She explained that generally,
unless there is an effective date and a clear indication of
legislative intent to have a law be retrospective, that new
bills are already perspective. She offered to locate the
statute and provide it to the committee.
3:01:56 PM
REPRESENTATIVE GRUENBERG noted that it appears to be the current
practice, and if that is answered by the general retrospective
statute then the committee should be striking Section 2 and not
including Section 2 in the bills at all.
MS. CARPENETI responded that it could be the Department of Law's
legislative section that is looking to include Section 2 in
bills, especially in criminal law to clarify the legislature's
intent regarding whether or not something should be prospective
or retrospective.
3:03:34 PM
CHAIR KELLER announced that HB 369 would be set aside.
3:04:17 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:04 p.m.