HOUSE BILL NO. 316 "An Act relating to the sealing of certain court records; restricting the publication of certain records of convictions on a publicly available website; relating to public records; and amending Rule 37.6, Alaska Rules of Administration." 2:02:30 PM Co-Chair Foster indicated the committee last heard the bill on March 30, 2018. At the hearing the committee heard an introduction of the bill and closed public testimony. The committee had a committee substitute (CS), version N. There was also one amendment. He asked the bill sponsor to address the changes in the CS. REPRESENTATIVE HARRIET DRUMMOND, SPONSOR, introduced herself. She deferred to her staff to explain the changes from the previous version of the bill. PATRICK FITZGERALD, STAFF, REPRESENTATIVE HARRIET DRUMMOND, introduced himself and reviewed the changes to the bill. The first change in Section 1 was to allow an opt-in program through the Department of Public Safety (DPS). The reason for the change was because it would reduce the burden and cost for DPS placing it on the person who wanted to classify their record. Another change that was made was the elimination of Sections 4 and 5, the indirect court rule. It was inserted with the original legislation to error on the side of caution, but the legislation would not interfere with the court rule. Section 3 was also eliminated. It accomplished what other parts of the bill already accomplished. Representative Wilson referred to page 1. She asked for clarification for the cost decreasing. Mr. Fitzgerald responded that DPS already had the form. 2:05:39 PM KATHRYN MONFREDA, CHIEF, CRIMINAL RECORDS AND IDENTIFICATION BUREAU, DEPARTMENT OF PUBLIC SAFETY, ANCHORAGE (via teleconference), asked Representative Wilson to repeat her question. Representative Wilson thought the department was going to have to look at the cases. She wondered if the person initiating the change would have to complete a from. Ms. Monfreda responded that she was correct. Rather than flagging the records, the department would wait until someone came to the department. She thought the department could absorb the work without needing extra people. Representative Wilson asked if the person would be required to show that there were no other charges at the time. Ms. Monfreda believed the information would already be in their files. The department would know if there were other charges involved. The department would be asking the person to prove that the amount was less than an ounce of marijuana and that there were no other charges in the case. Co-Chair Seaton MOVED to ADOPT proposed committee substitute for HB 316, Work Draft (30-LS1017\N). There being NO OBJECTION, it was so ordered. Representative Wilson MOVED to ADOPT Conceptual Amendment 1 (30-LS1017\U.3) (copy on file): Page l, line I 0, following "substance": Insert "and was not charged with any other crime in that case" Page l, line 13: Delete all material and insert: "(3) has not been convicted of any other charges since the conviction under (I) of this subsection." Page 2, line 6, following "substance": Insert "and was not charged with any other crime in that case" Page 2, line 9: Delete all material and insert: "(3) has not been convicted of any other charges since the conviction under (I) of this subsection." Page 4, lines 22 - 23: Delete "and was not convicted of any other charges in that case" Insert", was not charged with any other crimes in that case, and has not been convicted of any other charges since that conviction" Representative Grenn OBJECTED for discussion. Representative Wilson read the amendment (copy on file). The amendment outlined that the charge could be the only thing on a person's record in order to have it sealed. If a person had been charged and found guilty of other things, it would not make a difference whether other things appeared on someone's record. She was okay with the idea of a person with only one charge having their record sealed. However, she opposed the notion of someone with multiple offenses having a record sealed, as it showed a pattern. Representative Ortiz asked if the amendment sealed only the one item having to do with past use of marijuana. He wondered what was gained. 2:10:11 PM Representative Wilson suggested that what was brought up by the representative was that a person would have a black mark on their record. People having something on their record made it difficult to find employment at a job requiring a background check. She wondered why something would be removed from a person's record if they already had other things listed. She was fine with having a record sealed if it was their only offense. Representative Ortiz asked about the intent of the amendment. He wondered if the record would be reopened once any additional records came into play. Representative Wilson responded that there was no retroactivity of the bill. Co-Chair Foster asked the sponsor if she had an opinion on the amendment. Representative Drummond clarified that charges were different from convictions. The amendment appeared to insert, "and was not charged." She believed the issue was already covered in the bill on line 13, page 1. The intent of the bill was not to cover for bad actors of other acts of violence or other whatever other criminal acts they had on their record. She did not believe the bad actors would be looking to have their marijuana possession crime hidden if they had several other things on their record. If they were to remove their marijuana conviction they would still be bad actors. They were not the people the state was seeking to assist in reentering society. Representative Wilson requested that Ms. Mead come to the table. 2:14:47 PM NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, thought the amendment narrowed the number of people that the bill would apply to in two different ways. First, the person could not have been charged with any other crimes. She thought this addressed the question Representative Wilson brought up at the previous hearing. For example, a person might be charged with possession of meth and possession of marijuana but only convicted of possession of marijuana. As she read the amendment, it would exclude the people with other charges in the case. The only people that would have their names taken off CourtView would be the ones that were not charged with anything else but possession of marijuana and then convicted. Second, a person could not have been convicted of any other crime since the conviction. Ms. Mead noted that with respect to the numbers, there were about 700 cases in CourtView since 2007. Prior to 2007 it was difficult to obtain data. Marijuana possession became legal in 2015. Most of the cases stopped at that time. Of the 700 cases, 568 had no other charges when they ended up with a conviction for simple possession of marijuana. However, of those 568 about 72 percent had other crimes in the database, about 400 cases. She concluded that about 160 people since 2007 would be excluded from CourtView under the wording of the amendment. Ms. Mead wanted to make sure everyone knew what the court would do with Section 2 of the bill. It was different from a prior version in that it no longer made the cases confidential. The cases would no longer appear in CourtView. The prior version had confidentiality, meaning the court would not also hand out the paper file. In the current version the record would not be available on the court website, but the file would still be public under Section 2 of the bill. She wanted to make sure there was no misunderstanding when and if the court implemented the wording. Vice-Chair Gara understood that a person would not benefit from the amendment if a person was 21 years or older and was expunging their record because marijuana was legal. He indicated he had been interrupted and was told he was incorrect. He asked for clarification from Ms. Mead. Ms. Mead relayed that the amendment was not expungement. Rather, the amendment would take the record off of CourtView automatically on the effective date. The file would still be available at the court house. Secondly, if a person actively walked into DPS and asked that their record not be released in a general background check, then DPS would not release the information if the person fit into the categories that had been discussed. Vice-Chair Gara suggested that the way the bill was written a person's record would not be on CourtView if they had a prior conviction for just possessing marijuana because it was currently legal. The bill also indicated that if a person was convicted of something else at the time, the record would be available on CourtView. The conceptual amendment included that if a person was charged with something and the charge was dropped, the information would remain available on CourtView. He asked if he was correct about what was being proposed in the conceptual amendment. 2:19:20 PM Representative Wilson relayed that the amendment did 2 things. First, if a person was charged with another crime but not convicted, they would not fall under the bill. Second, if a person had been convicted since the time of conviction, the person would not be able to have their record removed from CourtView. Vice-Chair Gara opposed the conceptual amendment. Sometimes people were charged with something they did not do. Although his experience in criminal law was limited, he had had a client charged with kidnapping, but later the charges were dropped. He was very uncomfortable with the amendment and felt it gutted the bill. A later conviction would show up on CourtView. He did not see the benefit of the amendment unless people were seen as guilty until proven innocent. In his world people were innocent until proven guilty. He furthered that when a charge was dropped, it was dropped. He continued that when a person was convicted, they were convicted. Representative Wilson clarified that the charge part only had to do with the first case. She provided an example. She offered the amendment to provide a way for someone who had only been charged with something that was now legal, to remove it from their records. She continued that other convictions would establish a pattern. She did not think a person should get rewarded if they could not stay out of trouble since the initial conviction. Mr. Fitzgerald deferred to Ms. Monfreda. Ms. Monfreda did not believe the amendment would have a huge effect on public safety in terms of redacting the information. She thought it would make programming more complicated. Co-Chair Seaton asked if it would count as another charge if someone had a possession charge and a speeding violation at the same time. He relayed a hypothetical scenario. He asked if there would be an additional charge for a traffic violation. He wondered about a marijuana charge being removed from someone's record. Representative Wilson replied that if there was an additional charge at the same time the marijuana was found, then the marijuana charge could not be removed. She thought it would make it more complicated to try to distinguish between the charges. 2:24:42 PM Ms. Mead explained that when a law included the verbiage "any other crime" the court interprets that not to include minor offenses. In the case of the example, the violation would not be considered a crime. Along similar lines, if a person was charged with speeding, a minor offense, as well as the crime of possession of marijuana, it would not disqualify the case. On the other hand, if a person had not been convicted of any charges since the conviction, if the intent to mean criminal charges, it might be something that could be clarified in the conceptual amendment being discussed. She thought it might make the amendment clearer to specify "not convicted of any other crimes or criminal charges." It would help to clarify that the amendment was not intended to include minor offences such as traffic infractions. Co-Chair Seaton was uncertain how many people had been charged with simple possession more than once. He asked if a person was charged with simple possession more than once, would it mean that their record could not be hidden from CourtView. Ms. Mead had not anticipated his question and did not have the data of the 700 cases of just marijuana possession. She could look into it and provide data. She did not believe the number would be particularly high. Co-Chair Seaton thought it could be something like people using alcohol. Representative Guttenberg provided a hypothetical scenario. He wondered at what point a violation was written up. Ms. Mead was not qualified to answer the question. She deferred to the Department of Law. 2:28:51 PM KACI SCHROEDER, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, replied that once charges were filed in court, the person was viewed as being charged from the court's perspective. The prosecutor might get the case and make different charging decisions. Therefore, the charges could change. However, once the charges were filed in court by either the officer or the prosecutor the individual was viewed as being charged. Representative Wilson MOVED to ADOPT Conceptual Amendment 1 to Conceptual Amendment 1. She proposed to delete the word "Charges" on line 20 and insert the word "Crimes." Representative Pruitt OBJECTED for discussion. Representative Pruitt asked for clarification. Representative Wilson responded that she wanted to use the word "crimes" rather than "charges" on line 20. She was not talking about things like speeding violations. She was talking about actual crimes. Co-Chair Foster asked her to repeat Conceptual Amendment 1 to Conceptual Amendment 1. Representative Wilson repeated the conceptual amendment. The amendment would read: "and had not been convicted of any other crimes since that conviction." She clarified that conviction was about a conviction of marijuana. Representative Drummond was confused. She believed the CS that was adopted was only 2 pages long. Representative Wilson's amendment referred to the previous version which was no longer in front of the body. Representative Wilson responded that that was the reason for her conceptual amendment. Co-Chair Foster asked Representative Wilson to repeat her amendment to Conceptual Amendment 1 again. Representative Wilson relayed that Amendment 1 to Conceptual Amendment 1 on line 20 of Conceptual Amendment 1. The word "charges" would be changed to "crimes." She was not talking about speeding tickets or infractions. Ms. Mead responded that by changing the word "charges" to "crimes" at the bottom of Representative Wilson's amendment, it would address what Co-Chair Seaton brought up about a violation. She suggested, as a measure of housekeeping, line 6 should probably reflect the same language. Representative Wilson clarified her Conceptual Amendment 1 to Conceptual Amendment 1. The word "charges" would be changed to "crimes" on line 6 and line 20. Representative Guttenberg asked if the conceptual amendment was relative to the CS. 2:33:26 PM AT EASE 2:34:47 PM RECONVENED Ms. Schroeder conveyed that the conceptual amendment was adding language that stated, "was not charged with any other crimes in that case and has not been convicted of any other crimes since that conviction. She indicated that the language needed to be added in Section 1 on line 13 under 4. It would replace number 4. In Section 2 of the CS on page 2, on line 9 would replace 3. Representative Pruitt WITHDREW his OBJECTION Representative Ortiz OBJECTED. Representative Ortiz WITHDREW his OBJECTION. Conceptual Amendment 1 to Conceptual Amendment 1 was Adopted. Vice-Chair Gara relayed that in his experience, the most frequent times where a charge was later dropped was when law enforcement thought one person was responsible, when another person was really responsible. He provided a hypothetical scenario. He concluded that a person should not be penalized from taking advantage of the benefit provided in Representative Drummond's bill when a mistaken charge was later removed. Representative Wilson was not comfortable because plea bargains happened frequently. She asked for member support. Representative Grenn MAINTAINED his OBJECTION. A roll call vote was taken on the motion. IN FAVOR: Thompson, Tilton, Wilson, Pruitt. OPPOSED: Gara, Grenn, Guttenberg, Kawasaki, Ortiz, Foster, Seaton. The MOTION to ADOPT Conceptual Amendment 1 as amended FAILED (4/7). Co-Chair Foster relayed that there were no other amendments for HB 316. He asked Vice-Chair Gara to review the fiscal notes. Vice-Chair Gara reviewed two fiscal notes for HB 316. The first fiscal note had a zero impact and was from Judiciary. The appropriation was the Alaska Court System and the allocation was Trial Courts. The Office of Management and Budget (OMB) component number was 768. The second fiscal note by the Department of Public Safety had an appropriation of Statewide Support and an allocation of Criminal Justice Information Systems Program. The OMB component number was 3200. The note reflected the previous version of the bill. He indicated someone from DPS could speak to the accuracy of the fiscal note for the current version of the bill. Ms. Monfreda replied that the department would be submitting a revised fiscal note for the new version of the bill. Co-Chair Foster reiterated that there would be a forthcoming fiscal note. 2:41:48 PM Co-Chair Seaton MOVED to report CSHB 316 (FIN) out of Committee with individual recommendations and the accompanying fiscal notes. Representative Wilson OBJECTED. A roll call vote was taken on the motion. IN FAVOR: Gara, Guttenberg, Kawasaki, Ortiz, Thompson, Seaton, Foster OPPOSED: Tilton, Wilson, Pruitt The MOTION PASSED (8/3). CSHB 316 (FIN) was REPORTED out of committee with an "amend" recommendation and with one new zero fiscal note by the Department of Public Safety and one previously published zero fiscal note: FN1 (JUD). 2:42:59 PM AT EASE 2:43:42 PM RECONVENED