03/07/2017 03:00 PM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB127 | |
| HB112 | |
| HB1 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 127 | TELECONFERENCED | |
| *+ | HB 112 | TELECONFERENCED | |
| += | HB 1 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 7, 2017
3:03 p.m.
MEMBERS PRESENT
Representative Jonathan Kreiss-Tomkins, Chair
Representative Gabrielle LeDoux, Vice Chair
Representative Chris Tuck
Representative Adam Wool
Representative Chris Birch
Representative DeLena Johnson
Representative Gary Knopp
MEMBERS ABSENT
Representative Andy Josephson (alternate)
Representative Chuck Kopp (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 127
"An Act relating to a permanent fund dividend for an individual
whose conviction has been vacated, reversed, or dismissed; and
relating to the calculation of the value of the permanent fund
dividend by including payment to individuals eligible for a
permanent fund dividend because of a conviction that has been
vacated, reversed, or dismissed."
- MOVED HB 127 OUT OF COMMITTEE
HOUSE BILL NO. 112
"An Act relating to sexual assault by a peace officer against a
person who is a victim, witness, or perpetrator of a crime."
- HEARD & HELD
HOUSE BILL NO. 1
"An Act relating to absentee voting, voting, and voter
registration; relating to early voting locations at which
persons may vote absentee ballots; and providing for an
effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 127
SHORT TITLE: CRIM. CONV. OVERTURNED: RECEIVE PAST PFD
SPONSOR(s): REPRESENTATIVE(s) KAWASAKI
02/15/17 (H) READ THE FIRST TIME - REFERRALS
02/15/17 (H) STA, FIN
02/28/17 (H) STA AT 3:00 PM GRUENBERG 120
02/28/17 (H) Scheduled but Not Heard
02/28/17 (H) STA AT 5:30 PM GRUENBERG 120
02/28/17 (H) Heard & Held
02/28/17 (H) MINUTE(STA)
03/07/17 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 112
SHORT TITLE: SEXUAL ASSAULT BY PEACE OFFICERS
SPONSOR(s): REPRESENTATIVE(s) CLAMAN
02/08/17 (H) READ THE FIRST TIME - REFERRALS
02/08/17 (H) STA, JUD
03/07/17 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 1
SHORT TITLE: ELECTION REGISTRATION AND VOTING
SPONSOR(s): REPRESENTATIVE(s) TUCK
01/18/17 (H) PREFILE RELEASED 1/9/17
01/18/17 (H) READ THE FIRST TIME - REFERRALS
01/18/17 (H) STA, JUD
02/23/17 (H) STA AT 3:00 PM GRUENBERG 120
02/23/17 (H) Heard & Held
02/23/17 (H) MINUTE(STA)
02/28/17 (H) STA AT 3:00 PM GRUENBERG 120
02/28/17 (H) Heard & Held
02/28/17 (H) MINUTE(STA)
03/07/17 (H) STA AT 3:00 PM GRUENBERG 120
WITNESS REGISTER
FRANK TURNEY
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 127.
MARVIN ROBERTS
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 127.
NATASHA SINGH, General Council
Tanana Chiefs Conference (TCC)
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 127.
BILL OBERLY, Executive Director
Alaska Innocence Project
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 127.
REPRESENTATIVE SCOTT KAWASAKI
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions on HB 127, as prime
sponsor.
SARAH RACE, Director
Permanent Fund Dividend Division (PFDD)
Department of Revenue (DOR)
Juneau, Alaska
POSITION STATEMENT: Answered questions at the hearing on HB
127.
REPRESENTATIVE MATT CLAMAN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 112, as prime sponsor.
OWEN PHILLIPS, Staff
Representative Matt Claman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided information on HB 112, on behalf
of Representative Claman, prime sponsor.
HILARY MARTIN, Attorney
Legislative Legal Counsel
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
112.
TERRA BURNS
Community United for Safety Protection (CUSP)
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
112.
KENDRA KLOESTER, Staff
Representative Chris Tuck
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the proposed committee substitute
(CS) for HB 1 on behalf of Representative Tuck, prime sponsor of
HB 1.
JOSIE BAHNKE, Director
Division of Elections (DOE)
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
1.
ACTION NARRATIVE
3:03:47 PM
CHAIR JONATHAN KREISS-TOMKINS called the House State Affairs
Standing Committee meeting to order at 3:03 p.m.
Representatives Tuck, Wool, Birch, Johnson, Knopp and Kriess-
Tomkins were present at the call to order. Representative
LeDoux arrived as the meeting was in progress.
HB 127-CRIM. CONV. OVERTURNED: RECEIVE PAST PFD
3:04:48 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be HOUSE BILL NO. 127, "An Act relating to a permanent
fund dividend for an individual whose conviction has been
vacated, reversed, or dismissed; and relating to the calculation
of the value of the permanent fund dividend by including payment
to individuals eligible for a permanent fund dividend because of
a conviction that has been vacated, reversed, or dismissed."
CHAIR KREISS-TOMKINS opened public testimony on HB 127.
3:05:31 PM
FRANK TURNEY testified that he supports HB 127. He stated that
there are a number of criminal convictions overturned due to
newly discovered facts, suggesting a miscarriage of justice. He
said that those wrongly convicted have suffered punishment as a
result. He asserted that "the Fairbanks Four" should be
compensated with the permanent fund dividend (PFD) payments for
the 18 years of incarceration as should others whose convictions
have been overturned. He offered that wrongly convicted people
face many hurdles when re-entering society, such as finding
employment and housing, and needing psychological counseling.
He opined that compensating these people would not remove the
long years of incarceration but would help them "get back on
their feet" and have a normal life. He mentioned that other
states have set forth compensations for those who have been
wrongly convicted and whose convictions have been overturned.
He said that he spent nine years incarcerated in Oregon, after
which he worked on a governor's task force and on a county
community corrections advisory committee.
3:07:59 PM
MARVIN ROBERTS stated that he is from Canton, Alaska, and is one
of the Fairbanks Four. He relayed that in 1997, he and three
others were wrongly arrested and subsequently wrongly convicted
for crimes that they did not commit. He said that "after 18
years, we were finally given back our lives," but were not given
any compensation and are starting out with nothing. He said
that they find themselves struggling without job experience,
education, or money for professional counseling. He mentioned
that he is working two jobs, which limits time with his family.
He maintained that they were not allowed to file for PFDs in
prison during the 18 years. He attested that he would have
remained in Alaska during those 18 years and would have filed
for all his dividends. He stated that the money would benefit
the four of them immensely.
3:10:10 PM
REPRESENTATIVE TUCK thanked Mr. Roberts for his letter to the
committee [included in the committee packet] and for his
testimony.
CHAIR KREISS-TOMKINS wished Mr. Roberts the best as he
transitions back into society.
3:10:33 PM
REPRESENTATIVE WOOL asked Mr. Roberts if he was ever offered a
PFD application during his years of incarceration.
MR. ROBERTS replied that he was not offered a PFD application.
3:11:19 PM
NATASHA SINGH, General Council, Tanana Chiefs Conference (TCC),
stated that 14 months ago TCC celebrated the release from
incarceration of the four men known as the Fairbanks Four -
Marvin Roberts, George Frese, Eugene Vent, and Kevin Pease. She
relayed that these men maintained their innocence for 19 years
and were vindicated after a five-week [hearing]. She said that
they were released in exchange for signing an agreement
releasing the State of Alaska from any civil liability related
to the prosecution or investigation of their cases; therefore,
they cannot seek compensation through the court processes
available to most people.
MS. SINGH mentioned that the Fairbanks Four literally left
prison with the shirts on their backs, and the state did not
provide these men with assistance in transitioning back into the
"real world." She added that despite one's proven innocence,
re-entry into society is profoundly difficult for the wrongfully
convicted. She maintained that the failure to compensate them
adds insult to injury and opined that society has an obligation
to compensate the wrongfully convicted.
MS. SINGH offered that for Alaska to guarantee true justice to
innocent Alaskan men and women who are falsely incriminated,
wrongfully convicted, or victimized by the Alaska criminal
justice system, many areas of that system must be examined and
rehabilitated. She mentioned that there are charging and
sentencing disparities regarding both rural and urban Alaska
Natives and to all Alaskans. She stated that prosecutorial
misconduct and the mechanism for accountability of state
officials need to be codified with real and meaningful sanctions
available. She added that TCC will be seeking criminal justice
reforms and statutory changes. She mentioned eye witness
identification and access to post conviction deoxyribonucleic
acid (DNA) testing as two areas in need of reform.
MS. SINGH relayed that she has personally witnessed Marvin,
George, Eugene, and Kevin re-integrate themselves into the
community of Fairbanks and try to make something of themselves.
She maintained that they truly are doing it on their own. She
expressed her belief that they are heroes who have her respect
and the respect of the executive board of TCC.
3:15:41 PM
BILL OBERLY, Executive Director, Alaska Innocence Project,
stated that the proposed legislation would correct an error made
by the court and subsequently by the Permanent Fund Dividend
Division (PFDD). He asserted that the men and women whose
convictions have been vacated deserve the proposed statute. He
proclaimed, "The money is there, and it is the right thing to do
to give it to them. It is their money, in fact, wrongfully
taken from them." He contended that it is the right thing to do
morally, as they already have had years taken from their lives,
and it is the right thing to do legally, since they should not
have been in prison, and the PFD should not have been denied
them. He asserted that HB 127 would correct that error. He
added that this money could not be put to a better use. A
person released after wrongful incarceration receives no help
for his/her transition and no help to return to society. He
urged the committee to pass HB 127 out of committee. He
reiterated that these four men are truly heroes in that despite
being wronged terribly, they approach each day with a positive
attitude and continue to struggle each day in the face of many
barriers.
3:18:06 PM
REPRESENTATIVE KNOPP asked if HB 127 is the right vehicle for
compensation. He asked why someone, who knew his/her conviction
was going to be overturned, would give up his/her right to civil
litigation. He offered that the PFD money represents such a
small component of the compensation truly due them because of
wrongful conviction.
MR. OBERLY replied that he would attempt to explain the
situation by relating what the presiding judge said after
completion of the [five-week] hearing: The judge shared that he
had not listened to any testimony from the first three trials or
reviewed the two dozen motions and additional testimony
submitted during reconsideration of the case. He said that it
would take about six months to hear all the testimony and rule
on all the motions. He stated that he would be allowed six
months to decide on the case, but that six-month period would
not start until the review of evidence was completed. He
relayed that if he has not made a decision by the end of the
six-month period, he would no longer be compensated for his
work, but he stated that he would not be rushed into a decision
and had no problem working without pay. Through his statements,
the judge relayed to the men and those in the courtroom that it
could be a year or more before his decision.
MR. OBERLY said that at that time, three of the men had been
wrongfully imprisoned for 18 years - Mr. Roberts was out on
parole. He said they were told they could "get out tomorrow and
spend their first Christmas with their family in 18 years." He
attested that it was a difficult decision but said that if it
were him, he would not want to spend another day in prison.
MR. OBERLY emphasized that HB 127 is totally independent of the
larger issue of compensation. The proposed legislation would
give them money that was wrongfully taken from them because they
were wrongfully imprisoned. He contended that it is their
money; they are entitled to it; and it should never have been
taken from them.
3:23:01 PM
CHAIR KREISS-TOMKINS closed public testimony on HB 127.
3:23:38 PM
REPRESENTATIVE KNOPP asked how much of the PFD money [for the
Fairbanks Four] was received by the Department of Corrections
(DOC) and if it would be more appropriate to repay it from DOC's
budget rather than PFDD.
3:24:08 PM
REPRESENTATIVE SCOTT KAWASAKI, Alaska State Legislature, as
prime sponsor of HB 127, explained that PFD criminal funds -
funds that are withheld from someone incarcerated or having a
felony conviction - are paid predominately to DOC and to a
lesser extent to the Violent Crimes Compensation Board (VCCB),
the Alaska Council of Domestic Violence and Sexual Assault
(CDVSA), the Office of Victims' Rights (OVR), and non-profit
victims' rights organizations.
REPRESENTATIVE KNOPP asked if it would be more appropriate to
repay the funds from the DOC budget or the Alaska Court System
budget, since otherwise PFDD would be paying the amount twice.
REPRESENTATIVE KAWASAKI replied that under HB 127, the source of
funding would be the Reserve for Prior Year Dividend Liabilities
- a fund reserved for PFDs denied in error and subsequently
awarded. He said the fund currently has $233,000.
3:25:51 PM
REPRESENTATIVE JOHNSON asked how the money would be paid to the
four men and if there is enough money in the fund to do so.
REPRESENTATIVE KAWASAKI reiterated that the balance in the
reserve is about $233,000, and if the Fairbanks Four applied
under the proposed legislation, they could receive up to
$103,000 for the 18 years. He maintained that it is very
difficult to predict the number of cases that would be
applicable under HB 127, but staff has estimated the following:
two in 2011; two in 2012; zero in 2013; two in 2014; and 13 in
2015, which includes the Fairbanks Four. He mentioned that
prior to 2011, there were about two to three cases per year that
could potentially take advantage of HB 127 if passed.
3:28:52 PM
REPRESENTATIVE JOHNSON expressed her concern that there would
not be enough money in the reserve fund for all the potential
cases. She stated that another concern is whether the state has
a responsibility to solicit potential applicants under HB 127.
REPRESENTATIVE KAWASAKI answered that Department of Law (DOL)
staff informed him that if HB 127 passes, ignorance is not a
valid argument for neglecting to apply for the PFDs, and the
state has no responsibility to solicit applications.
REPRESENTATIVE JOHNSON stated her belief that there should be a
fiscal note attached to HB 127.
REPRESENTATIVE KAWASAKI commented that the proposed legislation
is scheduled for the House Finance Standing Committee, and the
fiscal note will be reviewed in that committee.
3:31:30 PM
CHAIR KREISS-TOMKINS asked for more information regarding the
sufficiency of funds in the PFDD reserve fund for payouts, if HB
127 passes.
3:31:50 PM
SARAH RACE, Director, Permanent Fund Dividend Division (PFDD),
Department of Revenue (DOR), stated that the amount set aside
for the reserve account is calculated every year based on the
available amount for calculating the per individual dividend.
She explained that PFDD does an analysis that considers not only
prior year liabilities but the potential number of individuals
turning 18 for whom their parents or sponsors did not apply.
She said that regarding the proposed legislation, PFDD may
either create another reserve account or may increase the amount
available in the Reserve for Prior Year Dividend Liabilities.
3:32:59 PM
REPRESENTATIVE LEDOUX asked how the 120-day filing period in the
proposed legislation was derived. She opined that it is a very
short window.
REPRESENTATIVE KAWASAKI suggested that the longer the filing
period, the larger the potential payout.
REPRESENTATIVE LEDOUX agreed that with a longer filing period,
more people who are entitled to the payout would know that they
are entitled to it. She expressed her concern that with the
120-day filing period, the Fairbanks Four may be the only people
who would apply for the payment under the proposed legislation.
REPRESENTATIVE KAWASAKI said he is not sure if there are other
people following the progress of HB 127 as closely as the
Fairbanks Four.
3:34:41 PM
REPRESENTATIVE BIRCH asked if there are any conditions or
provisions of the settlement agreement [signed by the Fairbanks
Four] that would preclude payment under the proposed
legislation.
REPRESENTATIVE KAWASAKI referred to the Alaska Superior Court
settlement document, which lists eight stipulations of the
agreement. He said that with the [signed] document, they agreed
not to sue the state.
REPRESENTATIVE BIRCH referred to the sponsor statement and asked
Representative Kawasaki if he truly believes the PFD is a
defining characteristic of what it means to be an Alaskan.
REPRESENTATIVE KAWASAKI conceded that the language in the
sponsor statement might have been "a little bit over the top."
He said he didn't think the PFD was the defining characteristic
of being an Alaskan.
3:36:32 PM
REPRESENTATIVE KNOPP asked if everyone who has had his/her
conviction overturned or dismissed since the first payment year
of 1982 would be eligible to apply for their PFDs under HB 127.
MS. RACE responded, "That is correct."
REPRESENTATIVE KNOPP suggested that the state has no idea of the
number of people who would be affected by HB 127 or the length
of incarceration per person, and he asked, "What happens when
this fund runs dry?" He asked how the annual recalculation of
the reserve was performed. He also asked for an explanation of
payments reserved for those who did not receive their PFDs as
juveniles because their parent didn't apply.
MS. RACE answered that every year PFDD calculates the amount of
money to be put into the reserve account. That amount is
deducted from the money that becomes available for paying
dividends, thus reducing the individual dividend amount. She
said that after the first year under HB 127, PFDD would have a
better idea of the amount that should be put into the reserve.
MS. RACE, responding to Representative Knopp's second question,
said that individuals turning 18 may apply up until their
twenty-first birthday for any PFDs that may have been missed on
their behalf. For these individuals, eligibility must be
determined for the years of application.
3:38:53 PM
REPRESENTATIVE WOOL, paraphrasing the testimony of Deputy
Commissioner Jerry Burnett, Department of Revenue, during the
House State Affairs Standing Committee meeting of 2/28/17, said
that if an incarcerated person applied for his/her PFD every
year, then was released because of an overturned conviction,
he/she could appeal previous PFD denials. Representative Wool
asked Ms. Race if many prisoners apply for PFDs. He asked if
they are given the opportunity and access to a computer.
MS. RACE replied that PFDD does receive applications from
incarcerated individuals, and correctional facilities do request
applications for prisoners.
REPRESENTATIVE WOOL expressed his understanding that those who
are incarcerated are not eligible for a PFD. He asked why an
incarcerated person would receive an application if ineligible,
and if some get applications, why wouldn't all of them be given
applications.
MS. RACE responded that many ineligible people apply for PFDs,
and PFDD encourages these applications, because that gives PFDD
the opportunity to determine eligibility.
REPRESENTATIVE WOOL suggested that he may be mistaken in his
assumption that anyone in a long-term correctional facility is
ineligible for a PFD.
MS. RACE said eligibility, regarding incarcerated individuals,
depends on timing. She stated that one criterion of
ineligibility is that during the qualifying year, an individual
has been sentenced because of a conviction of a felony. If a
person is both sentenced and incarcerated in the same year,
he/she may be ineligible for that year's PFD. If incarcerated
for more years, then the ineligibility would be extended for
those years.
3:42:43 PM
CHAIR KREISS-TOMKINS relayed that if someone was incarcerated
for a felony but knew he/she was innocent, it would be in that
person's best interest to apply every year until evidence might
vindicate him/her. This would allow retroactive eligibility
upon appeal of PFD denials and subsequent payments.
MS. RACE responded, "That is correct." She said that in this
scenario, the applicant would have received a denial letter for
every year of application, and the denial letter would have
explained the reasons for denial. She confirmed that at the
time the conviction was overturned, the person could appeal each
year of PFD denial.
3:43:43 PM
REPRESENTATIVE JOHNSON asked if anyone eligible for the PFD
under HB 127 would be paid a PFD for any period spent out of
state.
MS. RACE answered that in that situation, the inmate would still
be in the state's custody.
REPRESENTATIVE LEDOUX asked for clarification regarding the
scenario of someone in prison filing a PFD application every
year believing that he/she will ultimately be exonerated, and
the applications are denied. She asked if there is a time limit
to appeal a PFD denial. She suggested that either the appeals
would be denied because the person is still incarcerated, or the
time would have expired for most of the years by the time the
person has been exonerated. She offered that in that case,
applying for a PFD for all those years would not put the person
at any advantage.
MS. RACE confirmed that an individual has 30 days from the date
of receipt of a PFD denial letter to start the appeal process.
She added, however, that an additional regulation gives an
individual, who is in the situation described by Representative
LeDoux, 60 days from the time of an overturned conviction to
begin the PFD appeal process.
REPRESENTATIVE LEDOUX asked if any of the 21 potential
recipients of PFDs under HB 127 might have already appealed
under the regulation cited by Ms. Race.
REPRESENTATIVE KAWASAKI responded that he did not know the
answer.
REPRESENTATIVE LEDOUX asked how many people have taken advantage
of the regulation - that is, were exonerated and then re-
appealed their PFD denials.
3:48:58 PM
MS. RACE replied that she didn't have that number but could try
to find out from the Dividend Enforcement, Review and Appeals
Unit.
REPRESENTATIVE LEDOUX asked the sponsor to reconsider the 120-
day period for PFD application under HB 127. She questioned
whether that was an appropriate amount of time considering
minors are given three years to apply after turning 18, if
applications were not filed in their behalf.
CHAIR KREISS-TOMKINS asked if anyone has been reimbursed for
PFDs after being exonerated.
MS. RACE responded that she is not aware of any such occurrence
but could research the question.
3:50:27 PM
REPRESENTATIVE WOOL said that he fully appreciates the
unreasonable expectation for someone in prison taking on the
responsibility of requesting and completing a PFD application
year after year, only to be denied. He offered that with the
individual's involvement in all the legal processes necessary
for having his/her conviction overturned and the many issues
flooding his/her life after exoneration and release, finding the
PFD denial letters and pursuing the PFD appeal process
understandably might be delayed. He opined that the proposed
legislation is needed, and he agreed that the 120-day period is
too short.
3:52:05 PM
REPRESENTATIVE BIRCH said, "Somebody that isn't here is the
person who ... started it all, and that's the deceased person."
He cited one stipulation of the settlement agreement [signed by
the Fairbanks Four] and said, "The petitioners stipulate and
agree that the original jury verdicts and the judgements of
conviction were properly and validly entered based on the proof
beyond reasonable doubt." He agreed with Representative Wool's
assessment of the difficulty of filing for PFDs while in prison,
and he stated that HB 127 would be an appropriate remedy
[regarding the wrongfully convicted]. He reiterated, "We
shouldn't lose sight of the fact that ... there is somebody
that's not here ... a young man that was lost in some crime,
some time ago in the past."
3:53:57 PM
REPRESENTATIVE TUCK moved to report HB 127 out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, HB 127 was reported out of the House
State Affairs Standing Committee.
HB 112-SEXUAL ASSAULT BY PEACE OFFICERS
3:54:30 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 112, "An Act relating to sexual assault
by a peace officer against a person who is a victim, witness, or
perpetrator of a crime."
3:54:46 PM
REPRESENTATIVE MATT CLAMAN, Alaska State Legislature, as prime
sponsor of HB 112, paraphrased from paragraph one of the sponsor
statement, which read as follows [original punctuation
provided]:
House Bill 112 adds specific language to AS 11.41.425
and AS 11.41.427 criminalizing sexual penetration and
sexual contact with victims, witnesses, or defendants
under active investigation by a law enforcement
officer, effectively clearing up a gray area in the
law. Current law criminalizes police sexual misconduct
through two mechanisms: 1. coercion- it is considered
sexual assault if an individual is coerced into sexual
contact or intercourse by threat of arrest, or, 2. in
custody-it is considered sexual assault for law
enforcement to have sexual contact with a person who
is in their custody or apparent custody. Neither of
these instances addresses the use of sexual contact as
an investigative tool. There have been reports of law
enforcement officers engaging in sexual contact prior
to arrest, especially in instance of undercover
operations, without repercussion.
REPRESENTATIVE CLAMAN concluded by saying that passing HB 112
would clarify a gray area regarding misconduct to protect both
law enforcement officers and the public.
3:55:57 PM
OWEN PHILLIPS, Staff, Representative Matt Claman, Alaska State
Legislature, on behalf of Representative Claman, prime sponsor
of HB 112, paraphrased from paragraph four of the sponsor
statement, which read as follows [original punctuation
provided]:
The goal in passing House Bill 112 is clarifying a
gray area regarding misconduct to protect law
enforcement and the public alike. This bill serves to
protect potential victims of sexual assault, and
provide clear guidelines to law enforcement to ensure
integrity and public confidence.
MR. PHILLIPS went on to say that currently Alaska law does not
explicitly prohibit the use of sexual contact as an
investigative tool. He stated that a research study at the
University of Alaska Fairbanks (UAF) demonstrated that a quarter
of the study's 40 participants, comprised of current and former
sex workers, had been sexually assaulted by law enforcement
officers. He referred to the Community United for Safety and
Protection (CUSP) report, titled "Expanding Protection for
Sexual Assault Victims A Report in Support of AK House Bill 112
2/23/17," which details some of those assaults.
MR. PHILLIPS expressed his belief that there is strong support
for HB 112 and paraphrased from paragraph three of the sponsor
statement, which read as follows [original punctuation
provided]:
In addition, a Hays Research Group survey of 900
Alaskans showed that 92.9% were unaware that police
were allowed to have sex during prostitution stings
and 90.2% felt that it should be against the law for
law enforcement to have sexual contact with people
they are investigating.
4:00:36 PM
REPRESENTATIVE LEDOUX referred to the results of the UAF survey
described in paragraph two of the sponsor statement, which read
as follows [original punctuation provided]:
A research study at the University of Alaska Fairbanks
surveyed a diverse group 40 people who had worked in
Alaska's sex trade. Of those individuals, 26% said
they had been sexually assaulted by a law enforcement
officer. 60% of those who had been coerced or
manipulated, and 50% of those who had been forced had
been sexually assaulted by an officer.
REPRESENTATIVE LEDOUX asked if those who have been sexually
assaulted by a law enforcement officer are "covered" under
current law.
4:01:50 PM
HILARY MARTIN, Attorney, Legislative Legal Counsel, Legislative
Legal Services, Legislative Affairs Agency, answered that past
instances of sexual assault are covered under the law as it read
when the acts were committed. She added that HB 112 would apply
to offenses that occurred on or after the effective date of the
proposed legislation.
REPRESENTATIVE LEDOUX requested an explanation of the statistics
in paragraph two of the sponsor statement and asked if all the
individuals represented by the percentages are covered under
current law.
REPRESENTATIVE CLAMAN responded that it is a challenge to
determine consensual versus coercive conduct in a sex worker
population. He offered that the intent of HB 112 is to provide
protection in instances where consent is a more complicated
issue, rather than to address more violent sexual assaults.
REPRESENTATIVE LEDOUX offered that she does not understand what
paragraph two [of the sponsor statement] has to do with the
proposed legislation.
4:04:08 PM
TERRA BURNS, Community United for Safety Protection (CUSP),
stated that she conducted the UAF research cited in the sponsor
statement. She relayed that a quarter of those surveyed had
been sexually assaulted by a police officer, and those surveyed
used their own definition of sexual assault rather than a legal
definition. She said that about 30 percent of the sex workers
surveyed met the legal definition of a sex trafficking victim
due to being victims of force, fraud, or coercion within the
industry. Of those 30 percent, 60 percent reported being
sexually assaulted by a peace officer.
REPRESENTATIVE LEDOUX asked what definition of sexual assault
the survey used.
MS. BURNS answered that the survey respondents used their own
definition, and no legal definition was given to them. She
relayed two of the questions asked: "Have you had an officer
collect a freebie from you during a prostitution sting
operation?" and "Have you been sexually assaulted by a peace
officer?" She asserted that there was a strong correlation
between the two questions regarding the answers given.
4:05:59 PM
REPRESENTATIVE KNOPP referred to paragraph three in the sponsor
statement and asked for verification that 10 percent of the 900
people surveyed thought it was acceptable for law enforcement
officers to have sexual contact with individuals under
investigation.
MS. BURNS replied that 6.4 percent of those surveyed said that
[sexual contact in these instances] should not be illegal, and
3.5 percent said they did not know or refused to answer.
4:07:26 PM
REPRESENTATIVE WOOL referred to the title of the bill, which
read, "An Act relating to sexual assault by a peace officer
against a person who is a victim, witness, or perpetrator of a
crime." He asked if HB 112 refers to any crime or just sex
crimes.
REPRESENTATIVE CLAMAN answered that HB 112 refers to any crime.
He gave as an example the Alaska Supreme Court case of 2014
[State of Alaska v. Public Safety Employees Association], which
is described in the Alaska Dispatch News article, titled
"Supreme Court: Trooper shouldn't have been fired for sex with
domestic violence victim" and included in the committee packet.
He explained that this case involved a trooper who responded to
a domestic violence incident. The trooper returned the next
morning, out of uniform, to talk to the victim, and he had
sexual intercourse with her at that time.
REPRESENTATIVE WOOL posed the hypothetical situation: A liquor
store is robbed, and the clerk is a witness to the crime. The
police officer investigating the crime takes the clerk's witness
account. The investigation is open for six months or longer.
The officer happens to go into the liquor store six months later
and strikes up a conversation with the witness of the crime.
The case is still unresolved. He decides to date the witness as
a private citizen. Representative Wool asked if under HB 112,
it would be illegal for that police officer to have a
relationship with the witness.
REPRESENTATIVE CLAMAN said that he and his staff are exploring
options for addressing situations such as presented by
Representative Wool, both regarding active investigations and
dormant investigations. He expressed his belief that there is a
gray area regarding the point at which an investigation is
dormant. He said that the concern is regarding police officers
using their positions of influence to engage in sexual relations
at a time when they are still actively involved in the
investigation.
4:10:26 PM
REPRESENTATIVE LEDOUX asked if HB 112 would apply to
investigations of traffic accidents.
REPRESENTATIVE CLAMAN pointed out that Section 1 and Section 2
of HB 112 reference "a crime under investigation," and he stated
that a traffic accident is not a crime.
REPRESENTATIVE LEDOUX mentioned that "reckless driving" is a
crime. She expressed her concern that the proposed legislation
be limited to truly egregious situations as opposed to more
routine situations.
REPRESENTATIVE CLAMAN responded that it was for that reason HB
112 specifically refers to criminal situations in which police
are involved, as opposed to civil situations.
REPRESENTATIVE LEDOUX offered the situation in which a police
officer was investigating a vehicular assault. She conceded
that while a police officer asking for a "freebie" was "a pretty
tacky thing to be doing," asking a witness for a date weeks
after the event "doesn't sound all that awful."
REPRESENTATIVE CLAMAN responded that Representative LeDoux
raised good points. He said that there are many issues
regarding employment place conduct and using positions of power
and authority inappropriately. He opined that in the scenario
described by Representative LeDoux, most people would agree that
a public safety officer asking a witness out two weeks after the
investigation would be too soon and would be considered using a
position of authority inappropriately. He added that he did not
know police departments' views on this.
4:14:57 PM
REPRESENTATIVE WOOL asked if it is appropriate for a police
officer, in the course of an investigation, to have sex with a
prostitute to prove that he/she is a prostitute.
REPRESENTATIVE CLAMAN answered that this is a gray area in the
statute as it is currently written, and he attested that the
intent of the proposed legislation is to make this clearly
illegal.
REPRESENTATIVE WOOL asked if it is legal for a police officer to
use drugs in the course of a drug sting operation. He added
that he was not aware that it was legal for a police officer to
engage in sex with a prostitute in the interest of making an
arrest.
REPRESENTATIVE CLAMAN said that his office has yet to receive a
clear answer regarding the use of drugs by undercover officers.
He maintained that the intent of HB 112 is to address just the
one issue - sexual assault by a peace officer.
4:17:12 PM
REPRESENTATIVE KNOPP referred to Representative LeDoux's
question about a car accident, and he maintained that until
charges are actually filed, there is no crime, only a suspicion.
He opined that a police officer should exercise discretion
regarding relationships with anyone involved in the accident, if
it is still being actively investigated. He asked if an
incident is a crime, if charges have not yet been filed.
REPRESENTATIVE CLAMAN maintained that the existence of a crime
is not dependent on charges filed. He offered that there are
many incidents that everyone would consider a crime and for
which no charges have been filed.
4:19:44 PM
REPRESENTATIVE WOOL referred to his scenario regarding the
liquor store robbery. He suggested that over the course of an
investigation, a relationship could develop between the police
officer and the witness that is not exploitive or coercive, like
a patient developing a relationship with his/her caregiver over
time. He stated that under HB 112, the police officer would be
committing a crime. He commented that although the intent of HB
112 is to prevent crimes against sex workers, it could apply to
situations that are "more nuanced."
REPRESENTATIVE CLAMAN suggested that the liquor store
investigation might conclude quickly.
REPRESENTATIVE WOOL agreed, but he suggested that it "seems kind
of silly" for the police officer to have to wait for someone to
be arrested to ask the witness out.
REPRESENTATIVE CLAMAN responded that his staff is reviewing
issues such as have been presented.
4:21:48 PM
REPRESENTATIVE LEDOUX asked for someone from Legislative Legal
and Research Services to give an opinion on whether a "gray
area" exists in current statute [relating to the legality of
sexual contact by a law enforcement officer with the victim,
witness, or defendant under active investigation by the law
enforcement officer].
4:22:23 PM
MS. MARTIN answered that she believes there are unanswered
questions regarding active sting operations. She referred to
the example of an undercover drug sting operation and said that
law enforcement officers are not usually arrested for buying
drugs during the operations. She maintained that the crime of
prostitution does not require the act to be committed, but only
the offering of [prostitution] services.
REPRESENTATIVE LEDOUX asked why HB 112 would apply only to
police officers and not district attorneys. She suggested that
district attorneys could conceivably date witnesses.
REPRESENTATIVE CLAMAN replied that the concerns that led to the
introduction of HB 112 involved police officers. He stated that
his office has not received any reports of similar issues with
prosecutors. He added that if his staff receives information
suggesting a similar problem regarding prosecutors, it could be
added to the proposed legislation.
4:25:13 PM
REPRESENTATIVE LEDOUX asked why HB 112 would be limited to
investigations. She added that when someone has been charged,
the investigation is theoretically over, but a trial could last
a long time.
REPRESENTATIVE CLAMAN responded that limiting the application of
HB 112 to investigations was an attempt to exclude dormant
investigations.
4:26:54 PM
REPRESENTATIVE TUCK asked if HB 112 would apply to
Transportation Security Administration (TSA) agents.
REPRESENTATIVE CLAMAN answered that it is not entirely clear if
TSA officers would be investigating crimes.
4:27:42 PM
REPRESENTATIVE BIRCH expressed his support for HB 112. He
related an incident occurring in Anchorage involving a rogue
police officer, Anthony Rollins, which cost the city $5-10
million in legal fees. Representative Birch relayed that the
officer was found in a compromising position in a police
facility by a supervisor, who then walked out. He asked if HB
112 would make that kind of engagement clearly illegal.
REPRESENTATIVE CLAMAN mentioned that Mr. Rollins was charged and
convicted with first degree and possibly second degree sexual
assault, which are crimes under current statutes. He said that
HB 112 would address third and fourth degree sexual assaults so
would not have affected that case. He agreed with
Representative Birch that HB 112 would provide additional tools
for sexual assault convictions.
4:30:02 PM
REPRESENTATIVE KNOPP stated that he supports HB 112. He
asserted that HB 112 would make the law "black and white" for
police officers regarding contact with a witness, perpetrator,
or victim during the active investigation of a crime.
4:30:58 PM
REPRESENTATIVE JOHNSON stated that she supports the proposed
legislation as it relates to sex workers. She suggested that
committee discussion has identified the need for additional
language to clarify the statutes as they relate to other
situations.
REPRESENTATIVE CLAMAN agreed and suggested that perhaps using
the phrase "active investigation" would narrow down the scope of
the proposed legislation so that it better addresses the
scenarios presented by committee members.
4:33:03 PM
REPRESENTATIVE LEDOUX stated that she supports the intent of HB
112. She said that she has a problem with "just the
investigation" portion of it. She said, "I can't imagine that
it would be okay for a law enforcement officer to have sex,
consensual or not, with somebody who's actually been charged and
is on trial." She added, "Maybe the investigation is over, but
there's a trial ...." She suggested that situation might
constitute an unintended loophole.
REPRESENTATIVE CLAMAN conceded that the committee has posed good
questions, and he said his staff will be consulting with
Legislative Legal and Research Services on the issues raised.
[HB 112 was held over.]
HB 1-ELECTION REGISTRATION AND VOTING
4:34:52 PM
CHAIR KREISS-TOMKINS announced that the final order of business
would be HOUSE BILL NO. 1, "An Act relating to absentee voting,
voting, and voter registration; relating to early voting
locations at which persons may vote absentee ballots; and
providing for an effective date."
4:35:45 PM
KENDRA KLOESTER, Staff, Representative Chris Tuck, Alaska State
Legislature, on behalf of Representative Tuck, prime sponsor of
HB 1, provided the committee with a sectional analysis of the
proposed committee substitute (CS) for HB 1, labeled 30-
LS0070\D, Bullard, 3/6/17 [hereafter referred to as Version D].
She reported the following: Section 1, which relates to same-
day voter registration, would remain unchanged; Section 2, which
relates to electronic signature and options for individuals with
no Division of Motor Vehicle (DMV) licenses, would remain
unchanged; and Section 3, which requires same-day voting
registrants to vote on a questioned ballot, also would remain
unchanged.
MS. KLOESTER relayed that Sections 4-7 would be new sections in
HB 1 to make conforming changes to the sections of Chapter 15
related to same-day voter registration. She explained that
Section 8 would change the term "absentee voting" to "early
voting" to provide more clarity for the public regarding the
voting terms - absentee-in-person voting, absentee voting, and
early voting - and to promote understanding of the early voting
process.
MS. KLOESTER said that Section 9 would be a new section
requiring a voter, who registers and votes a questioned ballot,
to sign a declaration of residency with the understanding that
falsification of information on the voter registration is
considered a Class A misdemeanor. She stated that Sections 10
and 11 would address the requirements for submitting the
declaration described in Section 9. She mentioned that Section
12-15 would change the terminology from "absentee voting" to
"early voting".
MS. KLOESTER stated that Section 16, included in the original
version of HB 1, would provide on the absentee ballot an option
for the applicant to automatically receive an absentee ballot
every year. She added that Version D would include language
that an applicant could be taken off the list of recurring
ballot mailings if his/her address became "bad."
MS. KLOESTER relayed the following: Section 17 would make
conforming changes for voter registration; Section 18 would
address the definition of electronic signature; Section 19 would
clarify "early" versus "absentee voting" language; and Section
20 would amend AS 29.26.050 to add a new subsection (d) related
to same-day voter registration. She explained that Section 21
would repeal AS 29.26.050(a)(3) due to the proposed addition of
subsection (d) by Section 20. She said that Sections 22 and 23,
providing an effective date and transitional language, would
remain unchanged.
4:42:05 PM
REPRESENTATIVE BIRCH asked to what extent Version D has been
coordinated with the Office of the Lieutenant Governor.
MS. KLOESTER replied that she has been working with Director
Josie Bahnke and other staff in the Division of Elections (DOE).
She offered that Ms. Bahnke could provide information about
communication with Lieutenant Governor Byron Mallott and his
staff regarding Version D. She added that before introduction
of HB 1, Representative Tuck's staff met with the lieutenant
governor, his staff, Claire Richardson, and the Alaska Native
Claims Settlement Act (ANCSA) Regional Association to review the
changes and provide updates.
4:43:36 PM
JOSIE BAHNKE, Director, Division of Elections (DOE), Office of
the Lieutenant Governor, responded that the lieutenant governor
has been briefed on HB 1. She added that DOE staff has not had
the opportunity to fully analyze Version D and attended this
hearing to better understand it. She asserted that after
briefly reviewing Version D, she has identified some significant
and interrelated administrative and drafting issues but added
that her staff will continue working with Representative Tuck's
Office to resolve these issues.
4:45:10 PM
REPRESENTATIVE KNOPP said that he has issues with same-day
registration, and he asked if same-day registration would mean a
person could vote the same day as he/she registered to vote.
MS. BAHNKE answered affirmatively and added that currently one
must register 30 days before voting in an election.
REPRESENTATIVE KNOPP stated that he is not comfortable with
requiring only an affidavit declaring residency for same-day
voting. He asked if the proposed legislation could require
documentation to demonstrate residency, such as a current
utility bill, a bank statement, a local paycheck, or a
government check. He added that he would prefer a six-month
residency requirement for voting eligibility in a district, as
that would give the voter more familiarity with the candidates
and issues.
MS. KLOESTER replied that there are states that require a person
to show a utility bill or identification to register to vote on
the same day. She suggested that Representative Tuck's staff
could explore that possibility with Representative Knopp's staff
and DOE.
4:48:31 PM
REPRESENTATIVE TUCK, as prime sponsor of HB 1, reminded the
committee members that a person must be a resident 30 days
before the election to vote, and that would not change under the
proposed legislation. He stated that he is open to changes to
the proposed legislation regarding how and when residency is
established for voter registration.
4:49:08 PM
The committee took an at-ease from 4:49 p.m. to 4:50 p.m.
4:50:27 PM
CHAIR KREISS-TOMKINS stated that HB 1 was held over.
4:51:33 PM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 4:51
p.m.