02/11/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB211 | |
| SB247 | |
| SB226 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 211 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 226 | TELECONFERENCED | |
| += | SB 247 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 11, 2008
1:33 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Charlie Huggins, Vice Chair
Senator Lesil McGuire
Senator Bill Wielechowski
Senator Gene Therriault
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 211
"An Act relating to an aggravating factor at sentencing for
crimes directed at a victim because of the victim's
homelessness."
HEARD AND HELD
SENATE BILL NO. 226
"An Act relating to litigation brought by a vexatious litigant;
amending Rules 3, 4, 12, and 41, Alaska Rules of Civil
Procedure; and providing for an effective date."
MOVED SB 226 OUT OF COMMITTEE
SENATE BILL NO. 247
"An Act relating to missing persons and unidentified human
remains."
MOVED CSSB 247(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 211
SHORT TITLE: AGGRAVATING FACTOR: HOMELESSNESS
SPONSOR(s): SENATOR(s) DAVIS
01/16/08 (S) PREFILE RELEASED 1/4/08
01/16/08 (S) READ THE FIRST TIME - REFERRALS
01/16/08 (S) JUD
02/01/08 (S) JUD AT 1:30 PM BELTZ 211
02/01/08 (S) -- MEETING CANCELED --
02/11/08 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 226
SHORT TITLE: VEXATIOUS LITIGANTS
SPONSOR(s): JUDICIARY
01/16/08 (S) READ THE FIRST TIME - REFERRALS
01/16/08 (S) JUD, FIN
01/30/08 (S) JUD AT 1:30 PM BELTZ 211
01/30/08 (S) Heard & Held
01/30/08 (S) MINUTE(JUD)
02/11/08 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 247
SHORT TITLE: MISSING PERSONS
SPONSOR(s): SENATOR(s) GREEN
01/23/08 (S) READ THE FIRST TIME - REFERRALS
01/23/08 (S) JUD, FIN
01/30/08 (S) JUD AT 1:30 PM BELTZ 211
01/30/08 (S) Heard & Held
01/30/08 (S) MINUTE(JUD)
02/11/08 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
JANA KREOFSKY, Legislative Intern
to Senator Bettye Davis
Alaska State Capitol
Juneau, AK
POSITION STATEMENT: Introduced SB 211 on behalf of the
sponsor.
GEORGE BRIGGS, Executive Director
Juneau Cooperative Christian Ministry
Glory Hole
Juneau, AK
POSITION STATEMENT: Spoke in support of SB 211.
DANIEL UNGIER
United Way of Southeast Alaska
said he chairs the Juneau Homeless Coalition
POSITION STATEMENT: Spoke in support of SB 211.
SAMUEL J. FORTIER, Attorney at Law
Anchorage, AK
POSITION STATEMENT: Spoke in support of SB 211.
DIANNE SLIGHTER
Juneau, AK
POSITION STATEMENT: Spoke in support of SB 211.
REPRESENTATIVE ANDREA DOLL
Alaska State Capitol
Juneau, AK
POSITION STATEMENT: Spoke in support of SB 211.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Answered questions about aggravating
factors as related to SB 211.
DARWIN PETERSON, Staff
to Senator Stedman
Alaska Capitol Building
Juneau, AK
POSITION STATEMENT: Explained changes in CS to SB 247.
MARY WEIR
RODNEY DIAL, Lieutenant
Alaska State Troopers
Department of Public Safety
Ketchikan, AK
POSITION STATEMENT: Stated support for the goal of SB 247 and
expressed concern with some of the directives.
JOAN WILSON, Assistant Attorney General
Civil Division
Department of Law
Anchorage, AK
POSITION STATEMENT: Provided information about HIPPA compliance
related to SB 247.
SUSAN COX, Senior Assistant Attorney General
Civil Division
Torts &Worker's Compensation
Department of Law
Juneau, AK
POSITION STATEMENT: Provided explanation and answered questions
related to SB 226.
ACTION NARRATIVE
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:33:18 PM. Present at the call to
order were Senators French, Huggins, and McGuire. Senators
Wielechowski and Therriault joined the meeting soon thereafter.
SB 211-AGGRAVATING FACTOR: HOMELESSNESS
1:33:54 PM
CHAIR FRENCH announced the consideration of SB 211.
SENATOR WIELECHOWSKI joined the meeting.
JANA KREOFSKY, legislative intern to Senator Bettye Davis,
introduced SB 211 on behalf of the sponsor. She read the
following sponsor statement into the record.
SB 211 allows the court to increase the active term of
imprisonment for felonies up to the maximum term of
imprisonment, even for a first offense, for factors in
aggravation. Current sentencing provisions allow
imposition of a sentence above the presumption range
set out in AS 12.55.125 based on race, sex, color,
creed, physical or mental disability, ancestry, or
national origin as set out in AS 12.55.155(c)(22). SB
211 adds "homelessness" as an aggravating factor to
this section.
The purpose of this statute is to deter and punish
defendants motivated to harm homeless people who are
particularly vulnerable and increasingly targets of
crime. Violent crimes against the homeless increased
65 percent from 2005-2006, according to a 2006 report
by the National Coalition for the Homeless. The 2006
numbers reflect a 170 percent increase since the
organization's first study in 1999. This national
trend is reflected in the more than 14,000 individuals
who experience homelessness in Alaska each year,
according to the 2005 Alaska Interagency Council on
Homelessness report, "Keeping Alaskans Out of the
Cold." This violence against the homeless has a direct
impact on the victim, the victim's family, the
community, and Alaska as a whole.
1:36:31 PM
GEORGE BRIGGS, Executive Director, Juneau Cooperative Christian
Ministry, "The Glory Hole", stated support for SB 211. The Glory
Hole is a 40-bed homeless shelter and soup kitchen in Juneau.
Over the course of a year he sees about 20 percent of Juneau's
substantially high homeless population. During his 15 month
tenure, he has seen crimes committed against homeless
individuals committed for no apparent reason other than that
they are homeless. Citing several examples, he said these are
senseless acts of violence that target a very vulnerable
population. Generally, homeless people want to be part of the
community but they've been ostracized and have learned to be
mistrustful. "This is a group of citizens that have a hard time
trusting even me." As such, they're reluctant to report personal
assaults to the police. Although he doesn't agree at all, he
knows that some homeless individuals have the attitude that they
deserve to be attacked.
MR. BRIGGS said SB 211 will give the courts the ability to
address crimes against the homeless in a different manner. This
will help send the message that "you can't just walk around the
street and beat up people just for the heck of it."
1:41:07 PM
DANIEL UNGIER, United Way of Southeast Alaska, said he chairs
the Juneau Homeless Coalition which looks at the root causes of
homelessness. When he first heard about SB 211 he questioned
adding homelessness as a separate factor, but that was before he
knew anything about "Bum Fights Online." This privately made,
low budget film series has played an integral part in the
skyrocketing increase in violence against the homeless. These
are videos of people who shout the phrase, "bum fights" and then
attack someone who is playing a stereotypical homeless person.
In particular this phenomenon is sweeping through young people
and references are beginning to show up in mainstream Hollywood
movies. The essential message is that it does no harm to beat up
the homeless because they really aren't contributing to society.
MR. UNGIER said he concluded that "homelessness" should be added
as an aggravating factor because these people are being
stereotyped and disproportionately targeted simply because of
their homeless status. In fact, 21 percent of homeless people
report being the victim of a violent crime compared to 1 percent
of the general population. Bum fight videos have created the
image that an easy way to have fun is to target and attack
someone because of their specific status.
MR. UNGIER said this legislation is about more than imposing
stiffer sentences. It's about making a statement about this kind
of crime and about reducing how often it happens. SB 211 sends a
strong message; it counteracts stereotyping, and it could make a
real difference.
1:45:54 PM
SENATOR HUGGINS observed that in his dealings with homeless
people, most of whom are veterans, he's concluded that often
they're a victim of a crime by another homeless person. "What
does that do to the definition we're doing here if it's a
homeless person with a crime on a homeless person," he asked.
MR. UNGIER replied he's heard stories along those lines but the
statistics indicate that perpetrators are targeting people they
don't know. "I don't know what the impact would be on homeless
against homeless crimes," he said.
CHAIR FRENCH suggested that the Department of Law representative
might be able to provide an answer.
SENATOR HUGGINS asked how couch-surfing teenagers would be
addressed.
MR. UNGIER said he understands that for the aggravating factor
to apply, the person must be knowingly targeted for their
homelessness. He wouldn't expect the law to apply to a teenager
who is couch surfing.
1:48:29 PM
SENATOR HUGGINS questioned how someone knows that another person
really is homeless.
MR. UNGIER explained that people who have just left a homeless
shelter and people who fit the stereotype are targeted.
SENATOR HUGGINS observed that in Anchorage there's a sizeable
number of people who are sequestered somewhere off the street.
"The common thing amongst them is if you fall asleep somebody
will bong you on the head and take your fifth of whiskey or your
sleeping bag or you bunny boots if it's really cold." It seems
to be a cycle among a certain colony of people, he said.
1:50:18 PM
SAMUEL J. FORTIER stated support for SB 211. He's practiced law
in Anchorage for more than 25 years and some of his practice
involves homeless advocacy. Referring to the suggestion that
only homeless people target other homeless people, he said his
experience is the opposite. Several years ago in Anchorage a
group of youths took videos of paintball attacks on homeless
people. Clearly that was a hate-related crime that focused on
the category of homeless people. The purpose was to make fun of
certain people and put it on video. "There was no basis in
attacking those people other than the fact that they were
homeless."
1:53:31 PM
SENATOR THERRIAULT joined the meeting.
MR. FORTIER relayed that on any given night there are about
3,500 people in Alaska who don't have homes. At least 700 of
those individuals will be attacked and probably 20 percent of
the attacks will be violent. The basis for the attacks isn't
because someone is reaching for another person's bottle, he
said. A number of the takings are on the basis that these people
are homeless. "It's on the basis of status; it's on the basis of
hate." We do have a responsibility for these individuals if we
consider that they are among the most vulnerable, he said. The
reasons for homelessness are varied; it's not simply because of
mental problems or drug and alcohol abuse, although many
homeless are faced with those problems. People are rendered
homeless because of economic conditions too. There is a need for
an aggravator, he said. We need to send a message that it's
wrong to attack vulnerable people on the basis of status. Ours
is an inclusive society that doesn't exclude people from basic
protections and basic human rights. Discriminating against
people on the basis of gender or race isn't permitted and people
who are on the outskirts of society based on economic conditions
should be similarly protected.
1:56:16 PM
MR. FORTIER revealed that he was homeless in Dillingham in the
early 1970s when housing was in short supply. The difference is
that he was in a village where people take care of one another.
"That's not so in a large city." When you're at the bottom of
the economic heap in Anchorage you are preyed upon. It's time to
add the aggravator for the most serious felonies. Consideration
should also be given to including homelessness in other hate
crime legislation, he said.
1:58:06 PM
DIANNE SLIGHTER described herself as a concerned Juneau citizen
who listened when Representative Andrea Doll introduced similar
legislation. She said it's not difficult to identify a homeless
person because their entire composure is different; they're sort
of inside themselves. She drew a parallel between current
violent attacks on homeless people and the violent gladiator
sports from ancient times. "What difference is it today?" These
vulnerable people are targeted just for sport and it's wrong.
CHAIR FRENCH welcomed Representative Doll.
2:00:54 PM
REPRESENTATIVE ANDREA DOLL said she is proud to have introduced
legislation similar to SB 211. Many Americans are not all that
far from homelessness but her reason for introducing the
legislation relates to homeless women with drug abuse problems.
Often they aren't able to go into the AWARE women's shelter and
they don't feel safe in the other shelters in town. That places
them in the vulnerable position of being on the street. They're
worried about rape and assault and sometimes they're worried
about not being treated fairly by the police. She said she
realized that she couldn't build a shelter, although she'd like
to work on that. What she could do is highlight these
individuals' plight and show that we care about their value.
Adding "homelessness" as an aggravating factor is one way to do
that.
CHAIR FRENCH asked the Department of Law to explain what it
takes to prove an aggravator, what would happen if an aggravator
were proved, and at what stage of the proceedings it has to be
proved.
2:03:15 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law (DOL) explained that this aggravating factor
would be subject to the Blakely decision. The prosecution would
have to prove beyond a reasonable doubt that the defendant
directed the crime toward the victim because of their homeless
status. "It would be a difficult aggravating factor to prove, as
are others in this particular paragraph of aggravators."
CHAIR FRENCH referred to the questions Senator Huggins posed
earlier about defining who is homeless, knowing who is homeless,
and about couch surfers. In his mind they highlight the
difficulties should DOL try to prove this aggravator.
MS. CARPENETI agreed it will be difficult. "This is not one we
will be able to establish often." Initially she thought it would
be a good idea to include a definition but then she realized
that none of the other factors are defined in statute. It's
something that the courts can apply when it's reasonable to do
so. But it won't happen often. It would be even more difficult
to prove that a homeless person targeted another homeless person
because they were homeless.
CHAIR FRENCH referred to Senator Huggins' example of one
homeless person preying on another for their belongings and said
to prove that the crime was based on homelessness you'd almost
need a video of the person stating their motive into the camera.
"Absent that sort of confession…it's going to be very difficult
to prove."
MS. CARPENETI agreed.
2:06:23 PM
SENATOR WIELECHOWSKI asked if the person actually has to be
homeless or if it's just the attacker's perception that they're
homeless. For example, a person who is kicked out of their house
and is attacked when they're sleeping on a park bench isn't
really homeless, but the attacker thinks they are.
MS. CARPENETI replied it would depend on the facts, but someone
who was kicked out of their house could be considered homeless
if they had no place to go.
SENATOR HUGGINS said his concern is that this could be just
another statute without teeth. "I'm not so sure the societal
will to be able to follow through with some sort of oomph-no
matter what we legislate-is there."
CHAIR FRENCH asked what affect it would have on a sentence if
this aggravator were proved.
MS. CARPENETI explained that it would allow the sentencing court
to increase the presumptive sentence to the maximum for that
level of crime. For example, if it were established, the
sentencing court could sentence to the maximum term of 20 years
for a class A felony.
CHAIR FRENCH asked if the judge would be required to increase
the sentence.
MS. CARPENETI said no; the court has more discretion once
aggregating factors and mitigating factors are established, but
it does not have a mandatory effect.
2:09:31 PM
CHAIR FRENCH summarized that it would be a fact-driven inquiry
after which the judge would consider the elements and decide
whether or not to add time to the sentence.
MS. CARPENETI said that's correct.
CHAIR FRENCH referred to Senator Huggins' concern about the
effectiveness of adding "homelessness" to the list of
aggravators and said the point is well taken. "It may sit there
unused on the books for decades." Similarly, he's never seen
creed alleged as an aggravator, but it's on the list. This is
more a statement of our values. "If someone is going out and
attacking a person just because they're homeless and you have
the ability to prove that … it's worthy of having that word on
the books." The prosecutor will have that tool in their toolbox
and the judge will have the ability to "make an upper departure
on the sentence because of the nature of the assault."
2:10:29 PM
SENATOR THERRIAULT said he doesn't disagree but he understands
Senator Huggins' concern. "We pat ourselves on the back, we add
another line - it may never be used except for the one instance
where, as you said, there's a video tape." I don't have a
problem if the bill passes but this doesn't solve the homeless
problem or the issue of violence against the homeless, he said.
SENATOR THERRIAULT noted that the sponsor statement says that
according to a national study violent crimes against the
homeless have increased by 65 percent from 2005-2006. It also
says that the national trend is reflected in the more than
14,000 individuals who are homeless in Alaska. He asked if
there's a direct link and there has been a 65 percent increase
in violence against the homeless in Alaska.
MS. KREOFSKY clarified that is a national statistic and although
violent crime against the homeless is reported to be rising in
Alaska, she doesn't have specific data.
2:13:11 PM
TOM OBERMEYER, Aide to Senator Davis, highlighted several
definitions of "homelessness" and relayed that for the purpose
of this section the definition is, "An individual who lacks a
fixed regular and adequate nighttime residence or has a primary
nighttime residence that is not designed for permanent living."
Thus a person in one of those temporary situations could be
identified as homeless. The statutes don't mention perception of
homelessness, but the term "knowingly" is used. That goes to
Senator French's point of trying to prove someone knowingly did
this by putting the attack on the Internet, he said. What is
most important though is that this will send a message to the
general population to be more sensitive to homeless people in
general.
CHAIR FRENCH asked Mr. Obermeyer to submit the definitions to
his office. He would hold SB 211 so the committee could consider
whether or not the term "homelessness" is adequately understood
to allow a jury to make a good decision.
SB 247-MISSING PERSONS
CHAIR FRENCH announced the consideration of SB 247 and noted
version E committee substitute (CS) had been distributed.
SENATOR HUGGINS moved to adopt version E, labeled 25-LS1157\E,
as the working document.
2:16:58 PM
CHAIR FRENCH announced that without objection, version E is
before the committee. He asked Mr. Peterson to highlight the
changes in the CS.
2:17:14 PM
DARWIN PETERSON, staff to Senator Stedman, said he agreed to
carry the bill for Senator Green, the bill sponsor, because he
was on her staff when the bill was drafted. He explained the
changes in the CS.
Page 1, lines 7-9, contains new language regarding civil
immunity. It's also applied in Sec.2 at the request of the
Department of Law (DOL). Law enforcement is provided some
immunity if it's not possible to gather all the required
information when a missing person report is filed.
Page 2, lines 14-16, subsection (c) says, "In accepting a report
of a missing person, the law enforcement agency shall request
from the person making the report, and make reasonable efforts
to gather to the extent it is available, information including".
The new language addresses DOL's concern that the phrase "shall
gather" didn't give the law enforcement agency much latitude.
Also, it addresses Senator McGuire's concern regarding HIPPA
violations. Page 58 of the "HIPPA Administrative Simplification
Regulation Text" says that "a covered entity may disclose
protected health information to the extent that such use or
disclosure is required by law." AS 18.65.630 deals specifically
with the issue of medical and dental records being released in a
missing person report. It says that when a report is filed, the
law enforcement agency "shall provide" release forms to the
person filing the report. The family, next of kin, or guardian
"may" fill out the form and deliver it to the physician and
dentist. It that's done, the physician and dentist "shall"
provide the information to the law enforcement agency. That
covers any problems with HIPPA, he said.
2:20:55 PM
MR. PETERSON explained that the change on page 2, line 29,
reflects Senator Therriault's suggestion that credit card
numbers and bank card numbers can be helpful in tracking a
missing person's whereabouts.
Page 3, lines 5-8, paragraph (17) reflects a suggestion by
Senator Therriault that it would be helpful to collect more
information related to date of last contact. Responding to a
request for further explanation, he said the original language
asked for date of last contact. He asked the drafter to expand
the language so that all the circumstances surrounding the
disappearance are recorded including "where the person was, whom
the person might have been with, when the person was last seen
or heard from - time and date - [and] reasons why they may be
missing."
2:22:08 PM
SENATOR THERRIAULT asked if the date of last contact was removed
and paragraph (17) was beefed up.
MR. PETERSON said yes.
Page 5, lines 1-6, subsection (f) addresses the concern Senator
Huggins expressed about collecting DNA from family members of a
missing person. The sponsor agrees and so the new language says
DNA samples taken from a family member are provided voluntarily.
Nothing in the section requires a family member who has not
committed a crime to provide a DNA sample. It also clarifies
that DNA samples are to be destroyed when a case is closed.
Page 6, line 29, reflects a suggestion by Senator Therriault to
require law enforcement agencies to establish written protocols
for handling missing person cases rather than encouraging them
to do so.
MR. PETERSON said that is the extent of the changes in the CS.
2:23:52 PM
MARY WEIR said that she brought the issue forward because there
were no protocols for collecting and handling information when
her daughter went missing for 19 months. It was all very
confusing. As it turned out her daughter was in California the
entire time, but the information was mishandled and the
identification was never made. Her experience is not uncommon.
The last time she checked there were 109,000 missing persons and
6,700 unidentified [remains] and the Department of Justice
estimates that those figures are low. SB 247 will make Alaska
part of the solution since the biggest reason that matches
aren't made is that protocols are lacking.
CHAIR FRENCH said he understands that the Department of Public
Safety has concern with some of wording in the bill.
2:26:31 PM
RODNEY DIAL, Lieutenant, Alaska State Trooper, Department of
Public Safety, stated support for the goal of the legislation,
but concern with some of the directives. "We would prefer that
the bill would change some of the 'shalls' to 'mays' so that we
can maintain officer discretion in those cases and allocate the
resources as we currently do."
CHAIR FRENCH asked him to be more specific.
LIEUTENANT DIAL explained that he's referring to collection of
DNA in cases where the person has been missing more than 30 days
and in high risk cases. "We have a significant percentage of our
missing persons cases that go past 30 days." Specifically he is
talking about the language on page 4, lines 18-20, and page 4,
line 21.
CHAIR FRENCH asked if he believes that the new language "make
reasonable efforts" is insufficient.
LIEUTENANT DIAL explained that in cases involving repeat
runaways and search and rescue cases where it's unlikely that
the victim will be rescued, it's not always an appropriate use
of resources to travel to different communities to obtain DNA
samples of family members. "We're asking to maintain the
discretion we currently have so we can allocate resources."
CHAIR FRENCH asked if a DNA sample is collected by a Q-tip swab.
LIEUTENANT DIAL said yes; the inside of a person's mouth is
swabbed for mitochondrial DNA. That's the "gold standard" for
missing person cases since it can be used for comparison with
remains that are highly degraded. "We actually do collect that
in many missing persons cases currently."
CHAIR FRENCH clarified that the bill doesn't place demands on
the crime lab to put the samples at the front of the queue. It
requires law enforcement agencies to make a reasonable effort to
get a DNA swab from immediate family members and the missing
person.
LIEUTENANT DIAL reminded the committee that the state crime lab
doesn't have the ability to test mitochondrial DNA so those
samples are sent out of state either to the University of Texas
or the FBI national crime lab. Those samples are entered into a
national DNA database for missing persons.
2:31:10 PM
CHAIR FRENCH asked if he said that the DNA swabs for these cases
could not be tested in Alaska.
LIEUTENANT DIAL said that's correct. The state crime lab can
only test for nuclear DNA, not mitochondrial DNA.
2:31:38 PM
CHAIR FRENCH noted a proposed amendment from the sponsor's
office. He identified it as Amendment 1 by Senator French.
CHAIR FRENCH moved Amendment 1 and objected for discussion
purposes.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 247(JUD)
Page 2, line 1, following "18.60.175":
Insert "and 18.65.630"
Page 2, line 16, following "is available"
Insert "and permissible to disclose"
At ease from 2:32:35 PM to 2:32:53 PM.
2:33:05 PM
MR. PETERSON explained that the amendment is at the request of
the department. It adds reference to AS 18.65.63 in the civil
immunity section on page 2, line 1.
CHAIR FRENCH added that the title of that particular statute is
"Medical and Dental Records of Missing Persons."
MR. PETERSON said the added language on page 2, line 16, is an
effort to avoid HIPPA violations.
CHAIR FRENCH added that this makes it clear that HIPPA trumps
Alaska statue.
MR. PETERSON agreed.
CHAIR FRENCH ascertained there were no further questions and
withdrew his objection to Amendment 1. Finding no objection, he
announced that Amendment 1 is adopted.
2:35:59 PM
JOAN WILSON, Assistant Attorney General, Civil Division,
Department of Law, relayed that part of her job is to advise the
Department of Health and Social Services about HIPPA compliance.
Much of that job is completing the state preemption analysis -
comparing how the HIPPA privacy standards compare with Alaska
laws, figuring out ways for them to work together, and pointing
it out when they don't.
MS. WILSON clarified that AS 18.65.630 mandates disclosures and
HIPPA says that where state or other law requires a disclosure,
a healthcare provider doesn't violate HIPPA by complying with
the other law. This section provides authority for family
members who don't qualify as usual next of kin to sign a health
information release. Subsection (b) provides law enforcement the
ability to do that when it's not possible get family
authorization. She cautioned that when AS 18.65.630 is
interpreted with HIPPA, providers should know that the
authorization form must also have all the mandatory terms that
HIPPA provides. That will remove any difficulty providers have
in figuring out whether this is a mandatory disclosure required
by state law or a permissive disclosure under an authorization
form. "I'm not really offering any suggestions for changes to 18
65.630, but just that there be some kind of legislative record
that an authorization form provided under these sections should
still comply with the mandatory authorization requirements of a
HIPPA compliant authorization form."
CHAIR FRENCH asked if she had any further remarks to offer on
the bill.
2:38:11 PM
MS. WILSON pointed out that the bill has two ways of getting
information. First, law enforcement is able to get information
from a family member and they are not subject to HIPPA. But when
law enforcement makes further reasonable efforts, it may be
requesting information directly from health care providers who
are subject to privacy standards. "It's only then that HIPPA's
going to create any kind of wall that someone will need to climb
over." HIPPA does recognize public policy needs for protective
health information and as such it has separate exceptions for
disclosures to law enforcement for purposes of missing person
investigations. But the section does not permit release of DNA
or dental records. "Everything under HIPPA is disjunctive." If
you fall under one exception you don't have to worry about the
other barriers so the law enforcement barrier for DNA and dental
records wouldn't be applicable in these cases because of the
"required by law" exception and the "authorized disclosure"
exception.
CHAIR FRENCH closed public testimony and announced that the CS
is before committee for discussion. Although he wasn't present
for first hearing, he has reviewed the minutes and there have
been some good explanations. Definitions have been added since
the committee first heard the bill and it will be heard next in
the Finance Committee. Finding no further committee discussion,
he asked for the will of the committee.
2:40:24 PM
SENATOR HUGGINS moved to report CSSB 247, as amended, from
committee with individual recommendations and attached fiscal
note(s).
CHAIR FRENCH announced that without objection, CSSB 247(JUD) is
moved from committee.
At ease from 2:40:43 PM to 2:41:51 PM`
SB 226-VEXATIOUS LITIGANTS
CHAIR FRENCH announced the consideration of SB 266. He noted
that Dennis DeWitt had distributed a letter of support from the
National Federation of Independent Business/Alaska.
2:42:40 PM
SUSAN COX, Senior Assistant Attorney General, Civil Division,
Torts and Worker's Compensation Section, Department of Law
(DOL), said she's sorry she missed the last hearing. In summary
the bill is modeled on a California statute that was enacted in
the 1960s to deal with frivolous litigation by vexatious
litigators. Although the courts have inherent power to control
abusive litigation, this bill creates a uniform mechanism for
dealing with these individuals in the court system. The DOL
supports this is an increasing problem in public and private
sectors. She relayed that she has been a defendant in repeated
nuisance litigation and has represented clients who have been in
that position as well.
2:44:41 PM
MS. COX explained that in the bill defines a "vexatious
litigant" as a person who, without legal representation,
repeatedly files lawsuits against the same parties or repeatedly
files meritless claims within a certain period of time or
repeatedly files frivolous pleadings or motions in a case that
the court considers to be in bad faith. Importantly, the bill
does not completely block a vexatious litigant from filing a
lawsuit in any circumstance. It just establishes hurtles that
the vexatious litigator must overcome before the courthouse
doors would be open. The idea is to control abusive litigation
and save the court system and opposing parties the need to
respond substantively to meritless and abusive lawsuits.
MS. COX said the DOL has some "frequent filers" and she
personally has a number of cases where the judge has
subsequently been added as a defendant. "We've had an appeal
before the Alaska Supreme Court within the past year in which an
argument was made … that it was time - in a particular case - to
set some limits on a particular party's ability to file lawsuits
against judges." The court recognized it as a problem and said
that there is inherent authority in the court system to control
the problem, but it had to be raised at the trial court level
first. We've attempted to do that and have a case on appeal that
will be argued in April, she said. But it would be more
advantageous to have a statutory framework within which to work
and a uniform approach to the problem.
2:48:25 PM
CHAIR FRENCH noted that during the previous hearing one person
said this would violate the First Amendment because it restricts
a person's right to go to court and get redress of grievances.
The bill packet contains a court case upholding the California
vexatious litigant statute. That case discusses a US Supreme
Court holding that baseless litigation is not protected by the
First Amendment right to petition because it does not involve a
bona fide grievance. It says, "The First Amendment interests
involved are not advanced when the litigation is based on
intentional falsehoods or on knowingly frivolous claims." I
imagine that an Alaska court would rule similarly, he said, but
you can't be positive.
2:49:58 PM
MS. COX added that there are statutes that impose conditions on
filing of litigation by inmates. A number of those requirements
have been challenged on constitutional grounds and have been
upheld. "The Alaska Supreme Court has certainly indicated a
willingness to consider reasonable restrictions on the right to
access the courts." A similar result is expected here. Also, the
Ninth Circuit upheld the California statues in Wolf v. George on
First Amendment and other constitutional grounds.
CHAIR FRENCH commented that it's a lengthy decision.
2:51:11 PM
SENATOR HUGGINS said the definition of vexatious litigant is a
person who is acting without the assistance of an attorney. He
referred to a previous comment that, "we have other ways to deal
with that" and asked what they are.
MS. COX explained that attorneys are bound by Civil Procedure
Rule 11. When they sign pleadings, they are certifying that they
believe the filing has merit and is worthy of the court's
attention. If attorneys act inappropriately the bar association
can exert its control. DOL has found that in cases of repeated
pro se litigation the threat of adverse attorney fee awards is
not a sufficient deterrent. For some people it's almost
recreation. "This bill is aimed at those who file things that
are frivolous and without the use of counsel for that reason."
2:53:10 PM
SENATOR WIELECHOWSKI asked if this would apply to an attorney
acting pro se.
MS. COX recalled some discussion of that during the drafting. It
isn't mentioned specifically but if an attorney was acting
without assistance of counsel then it would apply, she said.
SENATOR WIELECHOWSKI said an attorney acting pro se still faces
court discipline for filing an improper pleading.
MS. COX replied an attorney would be in a slightly different
situation than the average pro se litigant. She hasn't
encountered an attorney who has filed repeated or multiple
actions.
SENATOR McGUIRE commented that exempting attorneys who are
acting pro se would cause problems. "If you're pro se, you're
pro se." She would be uncomfortable exempting a licensed
attorney.
CHAIR FRENCH said he shares her concern. It's anyone without
assistance of counsel and it could be a lawyer without a lawyer.
2:56:32 PM
CHAIR FRENCH closed public testimony. Noting that this is the
second hearing and the bill has a finance referral, he asked for
the will of the committee.
SENATOR McGUIRE motioned to report SB 226 from committee with
individual recommendations and attached fiscal note(s).
CHAIR FRENCH announced that without objection, SB 226 is moved
from committee.
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:57:21 PM.
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