ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 19, 2014
1:32 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Fred Dyson
Senator Donald Olson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Lesil McGuire, Vice Chair
COMMITTEE CALENDAR
SENATE BILL NO. 110
"An Act relating to the authority of the victims' advocate to
request a hearing for the release to a crime victim under
certain conditions of certain property in the custody of a law
enforcement agency."
- HEARD & HELD
SENATE BILL NO. 128
"An Act relating to the crime of harassment."
- HEARD & HELD
SENATE JOINT RESOLUTION NO. 2
Commending and supporting actions taken by the Office of the
Governor, the attorney general, and the commissioner of natural
resources to protect the state from federal government incursion
into the care and management of state resources and to promote
the economic prosperity of the state; and urging the United
States Congress and the President of the United States to limit
federal government overreach into management of state resources.
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 110
SHORT TITLE: RETURN OF SEIZED PROPERTY
SPONSOR(s): SENATOR(s) DYSON
01/22/14 (S) PREFILE RELEASED 1/10/14
01/22/14 (S) READ THE FIRST TIME - REFERRALS
01/22/14 (S) JUD
02/19/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 128
SHORT TITLE: ELECTRONIC BULLYING
SPONSOR(s): SENATOR(s) MEYER
01/22/14 (S) READ THE FIRST TIME - REFERRALS
01/22/14 (S) JUD
02/17/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/17/14 (S) Scheduled But Not Heard
02/19/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
CHUCK KOPP, Staff
Senator Fred Dyson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced SB 110 on behalf of the sponsor.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Legal Services Section
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Offered suggestions on SB 110 and SB 128.
NANCY MEADE, General Counsel
Administrative Staff
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Commented on SB 110.
DAISY MAY BARRARA, representing herself
Bethel, Alaska
POSITION STATEMENT: Testified in support of SB 110 and SB 128.
TAYLOR WINSTON, Executive Director
Office of Victims' Rights
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 110.
EDRA MORLEDGE, Staff
Senator Kevin Meyer
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced SB 128 on behalf of the sponsor.
ARELENE BRISCOE, Alaska Nurses Association
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 128.
QUINLAN STEINER, Director
Public Defender Agency
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Commented on SB 128.
ACTION NARRATIVE
1:32:57 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Senators Wielechowski,
Olson, Dyson, and Chair Coghill were present at the call to
order.
SB 110-RETURN OF SEIZED PROPERTY
1:34:02 PM
CHAIR COGHILL announced the consideration of SB 110."An Act
relating to the authority of the victims' advocate to request a
hearing for the release to a crime victim under certain
conditions of certain property in the custody of a law
enforcement agency."
1:34:14 PM
SENATOR DYSON explained that the bill addresses the issue that
property that is seized as evidence of a crime often is not
returned to the victim after the case has been adjudicated. This
is contrary to the goal of restorative justice, which is to make
the victim whole. In 2012 legislation was passed that expedited
this process, but since then he's been asked to revise a few of
the details. He deferred to Mr. Kopp to explain the changes.
1:36:02 PM
CHUCK KOPP, Staff, Senator Fred Dyson, sponsor of SB 110,
explained that in 2012 the Department of Law issued a memo
expressing uncertainty about the intent regarding who would
request, on behalf of the crime victim, a hearing before the
court if the law enforcement agency decided not to return the
victim's seized property. The Department of Law thought the
Office of Victims' Rights (OVR) was supposed to request the
hearing in that circumstance. The Court Rules Analyst reviewed
the committee testimony and concluded that it was the
responsibility of the law enforcement agency or the Department
of Law to ask for the hearing if the agency decided against
giving the property back to the crime victim.
Everyone agreed that it would be helpful to amend the law to
give the victim advocate the authority to come before the court
and ask for the hearing if the law enforcement agency doesn't
act upon the request within the deadline set in statute.
MR. KOPP provided the following sectional analysis:
Section 1 amends AS 12.36.070 by adding a new
subsection (f) to provide that the Office of Victims'
Rights may request a hearing before the court if a law
enforcement agency fails to act within 10 days after
receipt of a request from the Office of Victims'
Rights on behalf of a crime victim who is the owner of
property to either a) return the property to the crime
victim or b) request a hearing before the court to
determine if the property shall be released to the
crime victim.
Section 2 amends AS 24.65.115 extending authority to
the Office of Victims' Rights to request a hearing
before the court under AS 12.36.070(f).
MR. KOPP noted that the Court System, OVR, and DOL requested
another small amendment and the sponsor agrees with the
suggestion.
1:39:23 PM
CHAIR COGHILL noted that Anne Carpeneti, Quinlan Steiner, and
Taylor Winston were available to testify.
SENATOR WIELECHOWSKI recalled the earlier legislation and asked
if this issue came up at the time or was something the committee
didn't contemplate during the process.
MR. KOPP replied it was a missed opportunity in the initial
legislation.
CHAIR COGHILL asked Mr. Kopp if he could speak to how the
process works once the advocate requests a hearing.
MR. KOPP explained that the current law provides that a crime
victim may request through the Office of Victim's Rights (OVR)
the return of their property that was seized as evidence. Once
OVR determines that the claim is valid, it files that request on
behalf of the crime victim. The law enforcement agency then has
10 days to return the property or request a hearing before the
court to determine if the property should be released to the
crime victim. The law states the jurisdiction of the court and
establishes the burden of proof as a preponderance of the
evidence for both the crime victim showing ownership of the
property and the objecting party proving the property must be
retained by the agency. The law further established that if the
court decided to return the property to the crime victim, the
court could put conditions on the return of that property to
maintain the evidentiary integrity of the property.
SB 110 builds on the original law by giving the victim advocate
the authority to request the hearing from the court if the law
enforcement agency failed to act in the required amount of time.
1:44:50 PM
SENATOR WIELECHOWSKI read AS 12.36.070(a) and (b) and questioned
where the problem arises. Subsection (a) provides a mandatory
investigation by OVR and subsection (b) says that, within 10
days of the request under (a) and following reasonable notice,
the agency shall request a hearing before the court.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law (DOL), Juneau, Alaska,
replied she wasn't familiar with any problems with the
procedure, but this is a failsafe because law enforcement
agencies aren't accustomed to requesting hearings. The Office of
Victims' Rights has already investigated the matter, so it makes
sense that OVR also should have the authority to request the
hearing from the court.
MR. KOPP added that the intention of the bill is to clarify that
"law enforcement agency" included the Department of Law and
would be the entity that would request the hearing before the
court. To Senator Wielechowski's question, he directed attention
to the letter in the packets from Mr. Winston, the director of
the Alaska Office of Victims' Rights. The letter identifies the
problem and states that SB 110 provides a resolution.
1:48:45 PM
SENATOR WIELECHOWSKI maintained that the AS 12.36.070(b) already
requires the victims' rights agency to go to court within 10
days.
MS. CARPENETI responded she interprets the term "agency" to mean
the law enforcement agency that has custody of the property,
which is why it's good to specifically allow OVR to request a
hearing too.
SENATOR WIELECHOWSKI said his interpretation is that there's a
law already on the books and it's not being enforced.
MS. CARPENETI agreed there is a duty set out in statute, but the
culpable mental state would probably be difficult to establish
if anybody were to bring a cause of action based on that.
1:50:23 PM
CHAIR COGHILL questioned whether the "agency" referenced in
Section 1 of the bill refers to the public safety agency.
MS. CARPENETI replied she reads it that way, but it's a good
clarification.
MR. KOPP suggested the court speak to the matter.
1:51:20 PM
NANCY MEADE, General Counsel, Administrative Staff, Alaska Court
System, Anchorage, Alaska, agreed with previous testimony that
the issue in the bill is that it requires the agency holding the
seized property to file a request for a hearing, and agencies
aren't equipped to do that. The clarification in SB 110 is that
it gives somebody with expertise standing to go enforce the
intent of the legislation that [passed in 2012]. The court
believes this clarifies the process.
CHAIR COGHILL asked if the current statute was unworkable and in
need of modification or if the exception provided in SB 110
addresses the problem.
MS. MEADE said she didn't have a position on what the better
practice would be but the bill would address the problem. She
continued to say that the court has a form on its website that
agencies can use to file a request for a hearing, and the fact
that it hasn't been used much in the last two years might be an
indication that the agencies aren't equipped to do that. The
court's perspective is that leaving the provision in statute is
streamlined, and it would work to add the victims' advocate as
an alternative.
SENATOR WIELECHOWSKI continued to point out that this is already
a statutory mandate and the agencies aren't following the law.
He expressed concern about creating an exemption as proposed by
the bill, and suggested that one alternative would be to impose
a fine on the agency if it doesn't comply.
MR. KOPP said there was this discussion two years ago, and the
definition of "law enforcement agency" is found in paragraph (2)
of Sec. 12.36.090. He paraphrased the following definition and
stated that the primary role of the Department of Law is the
enforcement of the criminal law. He said DOL is part of that law
enforcement agency and there was never a discussion in any of
the committee hearings that DOL would be the legal entity asking
for the hearing.
(2) "law enforcement agency" means a public agency
that performs as one of its principal functions an
activity relating to crime prevention, control, or
reduction or relating to the enforcement of the
criminal law; "law enforcement agency" does not
include a court.
MS. MEADE clarified that she didn't know if agencies have fallen
down on their duty or if agencies haven't asked for hearings in
courts because no citizens have taken advantage of this statute.
She also clarified that her reading of the statute is that a
victim would not need to appear and be involved in the hearing;
the victim's advocate would represent the victim.
CHAIR COGHILL asked if the Department of Law would reasonably
know that an application for the return of property should be
made.
MR. KOPP replied the practice of any police agency would be to
discuss with the prosecuting attorney whether or not the
property can be released. Once the prosecutor knows a request
has been made, there is a deadline to act on that request. If
the prosecutor knows that they cannot release the property, and
they cannot come to some agreement with the party interested in
the property within the 10-day period, that agency would request
it before the court. They would be the legal entity and the law
enforcement agency requesting. All police departments have that
relationship with the Department of Law when it comes to turning
over property in a pending criminal case because it's evidence.
CHAIR COGHILL asked if he'd given any thought to clarifying the
shared responsibility between the police agency and the
Department of Law and the right of the victim's advocate to
appeal.
MR. KOPP replied the court reviewed the committee testimony [on
Senate Bill 30] and issued a memo that is in the packets. The
conclusion was that the record is clear; it is the law
enforcement agency that is supposed to ask for the hearing.
However, this amendment is needed because the victims' advocate
has said this is a problem.
CHAIR COGHILL said he'd like to hear from a police agency and
the victims' rights advocate.
2:01:23 PM
DAISY MAY BARRARA, representing herself, Bethel, Alaska, stated
support for SB 110. She related that some people living in rural
areas don't know that by statute their property that was seized
as evidence shall and will be returned. She also said she fully
supports the Office of Victims' Rights being given the authority
to intercede on behalf of an individual for two reasons: first,
victims in the rural area often are not fluent in English; and
second, the victim's advocate knows and understands the process
and it will be more likely that the victim will have their
belongings returned.
2:06:01 PM
At ease
2:06:08 PM
CHAIR COGHILL reconvened the hearing.
2:08:42 PM
TAYLOR WINSTON, Executive Director, Office of Victims' Rights
(OVR), explained that she asked the sponsor to introduce SB 110
because OVR because of the confusion about the term "agency" and
whether it referred to OVR or the law enforcement agency. The
court did an analysis and their interpretation was that, in the
statute, the term "agency" meant the law enforcement. The court
did develop a form that any law enforcement agency throughout
the state could use to request a hearing, but the statute
doesn't allow any opportunity for recourse if the agency fails
to act. That's been a problem.
The Office of Victims' Rights has found that victims are unable
to get any further going through OVR than a request for the
information. She described a particular case that has been
pending for eight months. The statute says "shall" but it
doesn't mean much when the agency - whether it's a police
department or the DOL - makes a decision that it isn't going to
file for a hearing, she said Currently, OVR isn't able to file
anything with the court to move the process along, and nobody
really knows when the law enforcement agency fails to comply
with the law, because there isn't any court oversight until
there's been a request or a filing.
MS. WINSTON said that SB 110 provides a mechanism for the Office
of Victims' Rights to file a request for a hearing with the
court if the law enforcement agency or the Department of Law
fails to do so. Then the court can determine what will happen
with the evidence.
2:13:47 PM
CHAIR COGHILL asked, according to the court rule, if the cost of
getting the property back is borne by the agency alone or shared
by the victim advocate, if they're involved.
MS. WINSTON explained that what OVR undertakes on behalf of a
victim is a free service. She didn't know what the court may or
may not charge, but if the court were to charge a filing fee her
assumption is that OVR would assume that cost.
SENATOR WIELECHOWSKI asked how many requests for assistance have
been made to OVR under this statute.
MS. WINSTON answered four.
SENATOR WIELECHOWSKI asked if OVR has sufficient resources if
this bill were to pass.
MS. WINSTON answered yes.
SENATOR WIELECHOWSKI suggested that OVR hire an attorney to do
the first couple of filings and track the charges, and then make
a request if the agency doesn't comply with the law. That will
send a message to agencies statewide that they should comply
with the law, he said.
CHAIR COGHILL noted that the sponsor had an amendment.
2:18:51 PM
MR. KOPP explained that the court approached the sponsor with
suggested language that has been approved by OVR and DOL. It
adds qualifying language to subsection (f) in Section 1 that
states:
If the victims' advocate requests a hearing from the
court under this subsection, the victims' advocate's
appearance in the hearing is limited to advocating for
the victim only for the return of the property; the
victims' advocate would not be deemed an intervenor or
party for any other purpose absent further order of
the court.
CHAIR COGHILL suggested the sponsor bring the amendment on
Friday.
SENATOR DYSON said he'd distribute the amendment before the
hearing.
2:21:14 PM
CHAIR COGHILL announced he would hold SB 110 in committee for
further consideration. Public testimony remained open.
2:21:40 PM
At ease
SB 128-ELECTRONIC BULLYING
2:22:34 PM
CHAIR COGHILL reconvened the hearing and announced the
consideration of SB 128."An Act relating to the crime of
harassment." This was the first hearing.
2:23:09 PM
EDRA MORLEDGE, Staff, Senator Kevin Meyer, introduced SB 128 on
behalf of the sponsor, speaking to the following sponsor
statement:
With advances in technology and social media, harassment
by electronic means, or "cyberbullying," has become
increasingly prevalent. Our current statutes allow for
some forms of bullying to be handled within the school
system, however not all bullying occurs on or near school
property. In some extreme cases, cyberbullying has led to
suicide. SB 128 will allow for punishment outside of the
school system, and makes harassment of a person under 18
years of age by electronic communication a class B
misdemeanor.
MS. MORLEDGE noted that the bill had two zero fiscal notes.
SENATOR WIELECHOWSKI asked if there was a rationale for saying
that it's legal to call or send a letter to a person that is
insulting, taunting, or challenging, but it's illegal if it's
put in an email.
MS. MORLEDGE offered her understanding that this simply adds to
the current harassment laws that already cover written
communication.
SENATOR WIELECHOWSKI expressed interest in hearing from the
Department of Law.
2:27:42 PM
CHAIR COGHILL offered his understanding that electronic
intimidation could be charged under AS 11.61.120(a)(1).
MS. MORLEDGE responded that was technically her understanding,
but other states have not been able to charge unless the
communication is specifically identified as electronic
harassment.
CHAIR COGHILL opened public testimony.
2:28:31 PM
DAISY MAY BARRARA, representing herself, Bethel, Alaska,
testified in support of SB 128. She explained that her Alaska
Native culture has a belief that language can kill an individual
if used improperly. She said she believes this applies to
electronic communication as well. She thanked the committee for
paying close attention to this critical issue.
2:31:06 PM
ARELENE BRISCOE, Alaska Nurses Association, Anchorage, Alaska,
said she's been a nurse for 35 years and a board certified
mental health nurse in Alaska since 1987. She reported that she
works at an Anchorage hospital and daily sees the torment caused
by cyberbullying through Facebook, Twitter, and now Snapchat.
Children are the hardest hit population and suicides, suicide
attempts, and suicide ideations are a daily occurrence and she
sees the fallout at the hospital.
She highlighted that the bill doesn't address this, but bullies
need to be treated too because they are just as affected by
mental health issues as the victims. Both are suffering and need
help.
2:34:43 PM
CHAIR COGHILL expressed interest in knowing how a juvenile bully
might be treated as opposed to a bully who is older than 18
years of age.
MS. BRISCOL discussed the importance of early intervention for
kids who have been identified through the school system as
having problems because they are doing some of the bullying.
They need help before they get into the juvenile justice system,
she said.
SENATOR WIELECHOWSKI asked if the age limitation should be
removed, like in Illinois, so the application is much broader.
MS. BRISCOL said yes; women are bullied by their spouses. She
added that this is different from a letter because once a
communication is on Facebook it doesn't go away.
SENATOR WIELECHOWSKI expressed doubt that this would apply to
Facebook because it says "sends."
SENATOR DYSON expressed concern about how people with
significant disabilities would be affected if age 18 is left in
the bill.
CHAIR COGHILL said his research shows that most states don't
have an age restriction, but it appears that the sponsor is most
concerned about youth bullying.
2:39:44 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, discussed drafting concerns with SB 128. She
stressed in this draft the importance of not making conduct a
class B misdemeanor that might, under certain circumstances, be
more serious. For example, fear assault is assault in the fourth
degree, which is a class A misdemeanor, or even a class C felony
if it's assault in the third degree.
She suggested modifying the language to say: "sends an
electronic communication to a person under 19 years of age." She
explained that to make it a crime to send this material, the
culpable mental state for harassment in the second degree is
with intent to harass or annoy another person. She said she
assumes the other person is the child, so it needs to be clear
that the electronic communication is being sent to that person.
CHAIR COGHILL said he didn't believe that was the issue, because
these communications sometimes are sent to a wide audience with
the idea of denigrating a person's reputation. That person may
not even see the communication.
MS. CARPENETI restated that the prosecution has to prove the
culpable mental state of intending to annoy or harass another
person and it would be easier to prove if the communication was
to that person.
SENATOR WIELECHOWSKI observed that it's not clear whether the
phrase "sends an electronic communication" includes telephone
calls and Facebook and Twitter posts. He suggested the committee
have a philosophical discussion about the question that the
Chair raised because a person can do a lot of damage to another
person by harassing them on their own Facebook page.
MS. CARPENETI said that's the problem with electronic
communication; it's difficult to forbid in a way that doesn't
impose on a person's First Amendment rights.
CHAIR COGHILL asked the principle of law for slander and how it
might apply to cyberbullying.
2:44:22 PM
MS. CARPENETI explained that a person can claim damages for
slander in a civil action; it wouldn't be a crime.
SENATOR WIELECHOWSKI added that challenging someone to a fight
or threatening to kill them or their family would be harassment.
MS. CARPENETI said depending on the circumstances it could be a
fear assault. She also suggested repeating the word "fear" to
clarify that the person is in fear or physical injury, in fear
of severe mental or emotional injury, or fear of damage to the
person's property. This will keep it from being mixed with other
crimes.
SENATOR WIELECHOWSKI asked her to talk about state of mind and
whether it's objective or subjective and whether you know the
person is fragile or not.
MS. CARPENETI said her assumption is it means reasonable fear,
which is an objective standard, but she'd like to think about
it.
CHAIR COGHILL questioned whether it ought to be explicit that it
means reasonable fear.
MS. CARPENETI commented that it's difficult to draft in a way
that captures the potential harm of the conduct while also
protecting the constitutional right to expression.
SENATOR WIELECHOWSKI asked her to talk about the timeline for
reasonable fear, because AS 11.61.120(a)(1) says the insults,
taunts, or challenges have to provoke an immediate violent
response.
MS. CARPENETI suggested he pose the question to the sponsor. She
said she assumes it means an immediate reaction but it doesn't
say that, and the other provisions do.
CHAIR COGHILL suggested the sponsor bring information about what
other states have done in this area.
2:48:48 PM
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration (DOA), Anchorage, Alaska, stated agreement with
Ms. Carpeneti's suggestion that it would help the bill to
clarify that the electronic communication is to a particular
person. Without clarification of what's been criminalized, it's
too vague and would likely result in different views of what's
covered in different prosecutions. There's also a lack of an
imminent requirement that is seen elsewhere in fear assault
statutes and even earlier in this statute where the insulting,
taunting, or challenges are likely to provoke an immediate
response. There's an immediacy component to it that's important
in terms of defining what ought to be criminalized. Without
that, it could be broadly interpreted to apply to many things,
he said.
MR. STEINER expressed concern with the suggestion to include the
idea of fear of severe mental or emotional injury and instead
suggested requiring some level of an imminent threat or imminent
fear of physical injury. This would narrow the bill and
eliminate risk an over broad application that unintentionally
criminalizes certain conduct.
CHAIR COGHILL asked his perspective of limiting the application
of this law to people under age 18 versus applying it broadly to
all ages.
MR. STEINER replied his understanding is that the bill intends
to target cyberbullying of juveniles, and that limitation
eliminates the risk of prosecutions in areas where it doesn't
make sense.
SENATOR WIELECHOWSKI asked if the phrase "damage to the person's
property" is overly broad.
MR. STEINER agreed it is fairly broad and suggested amending the
language to ensure that sending an email threatening to break
another person's pencil wouldn't be criminal conduct. Juvenile
conduct that you might not endorse shouldn't necessarily be
subject to criminal penalties, he said.
Responding to a question, he confirmed that an electronic
communication could be prosecuted under AS 11.61.120(a)(1) if it
was delivered in a manner that was likely to provoke an
immediate violent response. That's why the imminent component is
helpful, he said, because you could theoretically send an email
that's harassing or taunting about something that would happen
far in the future.
2:56:05 PM
SENATOR WIELECHOWSKI asked if he sees any problems
differentiating between electronic communication and written or
verbal communication.
MR. STEINER opined that differentiating those types of
communication relates to the immediacy of both the impact and
response. For example, it's hard to threaten imminent physical
injury through a letter, he said. Including those runs the risk
of criminalizing things that aren't meant to be criminalized.
SENATOR WIELECHOWSKI asked if he sees any constitutional issues
because threatening to damage a person's property in a letter
inflicts the same amount of fear as making the threat in an
email, but one person hasn't committed a crime and the other
person has.
MR. STEINER replied it's a policy question. As currently
drafted, it's fairly broad and opens the potential for
prosecutions of cases that might not otherwise be prosecuted.
2:59:04 PM
CHAIR COGHILL asked the sponsor, the public defender, and the
Department of Law to think about whether implementing this law
might inadvertently cause further damage to a victim who has
already been traumatized by bullying.
SENATOR WIELECHOWSKI said it's a good point and it appears that
many other states require school districts to adopt policies. He
questioned whether that might be a better approach.
CHAIR COGHILL held SB 128 in committee.
3:01:10 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 3:01 p.m.