ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 24, 2006
2:17 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Pete Kott
OTHER LEGISLATORS PRESENT
Representative Bill Stoltze
COMMITTEE CALENDAR
HOUSE BILL NO. 329
"An Act relating to bail."
- MOVED CSHB 329(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 446
"An Act relating to the amount of a civil penalty for an
unlawful act or practice in the conduct of trade or commerce."
- MOVED CSHB 446(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 441
"An Act relating to operating or driving a motor vehicle,
aircraft, or watercraft while under the influence; relating to
mitigating factors in sentencing; amending Rule 35, Alaska Rules
of Criminal Procedure; and providing for an effective date."
- MOVED HB 441 OUT OF COMMITTEE
HOUSE BILL NO. 414
"An Act relating to allowing a parent or guardian of a minor to
intercept the private communications of the minor and to consent
to an order authorizing law enforcement to intercept the private
communications of the minor."
- HEARD AND HELD
HOUSE BILL NO. 93
"An Act relating to dentists and dental hygienists and the Board
of Dental Examiners; establishing certain committees for the
discipline and peer review of dentists; excluding the
adjudicatory proceedings of the Board of Dental Examiners and
its committees from the Administrative Procedure Act and from
the jurisdiction of the office of administrative hearings; and
providing for an effective date."
- MOVED CSHB 93(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 329
SHORT TITLE: BAIL RESTRICTIONS
SPONSOR(S): REPRESENTATIVE(S) STOLTZE, LYNN
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
02/23/06 (H) JUD AT 10:00 AM CAPITOL 120
02/23/06 (H) Heard & Held
02/23/06 (H) MINUTE(JUD)
02/24/06 (H) JUD AT 2:00 PM CAPITOL 120
BILL: HB 446
SHORT TITLE: PENALTY FOR UNLAWFUL TRADE PRACTICE
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE
02/13/06 (H) READ THE FIRST TIME - REFERRALS
02/13/06 (H) JUD, FIN
02/24/06 (H) JUD AT 2:00 PM CAPITOL 120
BILL: HB 441
SHORT TITLE: THERAPEUTIC COURT FOR DUI/SENTENCING
SPONSOR(S): REPRESENTATIVE(S) ROKEBERG
02/10/06 (H) READ THE FIRST TIME - REFERRALS
02/10/06 (H) JUD, FIN
02/24/06 (H) JUD AT 2:00 PM CAPITOL 120
BILL: HB 414
SHORT TITLE: INTERCEPTION OF MINOR'S COMMUNICATIONS
SPONSOR(S): REPRESENTATIVE(S) KOTT
02/01/06 (H) READ THE FIRST TIME - REFERRALS
02/01/06 (H) HES, JUD
02/14/06 (H) HES AT 3:00 PM CAPITOL 106
02/14/06 (H) Moved CSHB 414(HES) Out of Committee
02/14/06 (H) MINUTE(HES)
02/17/06 (H) HES RPT CS(HES) 4DP 1NR 2AM
02/17/06 (H) DP: GARDNER, KOHRING, SEATON, WILSON;
02/17/06 (H) NR: CISSNA;
02/17/06 (H) AM: ANDERSON, GATTO
02/23/06 (H) JUD AT 10:00 AM CAPITOL 120
02/23/06 (H) Scheduled But Not Heard
02/24/06 (H) JUD AT 2:00 PM CAPITOL 120
BILL: HB 93
SHORT TITLE: DENTISTS AND DENTAL HYGIENISTS
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) L&C, JUD, FIN
01/28/05 (H) L&C AT 3:15 PM CAPITOL 17
01/28/05 (H) -- Meeting Canceled --
02/02/05 (H) L&C AT 3:15 PM CAPITOL 17
02/02/05 (H) Heard & Held
02/02/05 (H) MINUTE(L&C)
01/18/06 (H) L&C AT 3:15 PM CAPITOL 17
01/18/06 (H) Moved CSHB 93(L&C) Out of Committee
01/18/06 (H) MINUTE(L&C)
01/20/06 (H) L&C RPT CS(L&C) 1DP 3NR 2AM
01/20/06 (H) DP: ANDERSON;
01/20/06 (H) NR: LYNN, KOTT, LEDOUX;
01/20/06 (H) AM: CRAWFORD, GUTTENBERG
02/10/06 (H) JUD AT 1:00 PM CAPITOL 120
02/10/06 (H) <Bill Hearing Canceled>
02/24/06 (H) JUD AT 2:00 PM CAPITOL 120
WITNESS REGISTER
BEN MULLIGAN, Staff
to Representative Bill Stoltze
House Finance Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained the proposed CS for HB 329,
Version Y, on behalf of one of the prime sponsors,
Representative Stoltze.
TED POPELY
Legislative Council Legal Office
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 446 on behalf of the sponsor,
Representative McGuire.
CYNTHIA DRINKWATER, Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 446.
STEVE CLEARY, Executive Director
Alaska Public Interest Research Group (AkPIRG)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 446.
HEATHER NOBREGA, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 441 on behalf of the sponsor,
Representative Rokeberg.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 441.
MICHAEL O'HARE, Staff
to Representative Pete Kott
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 414 on behalf of the sponsor,
Representative Kott.
HEATH HILYARD, Staff
to Representative Tom Anderson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the proposed CS for HB 93,
Version S, on behalf of the sponsor, Representative Anderson.
DAVID G. LOGAN, D.D.S., Chairman
Legislative Affairs Committee
Alaska Dental Society
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 93.
GEORGE SHAFFER, D.D.S., Member
Legislative Affairs Committee
Alaska Dental Society
Ketchikan, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 93.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 2:17:37 PM. Representatives
McGuire, Gruenberg, Wilson, and Coghill were present at the call
to order. Representatives Gara and Anderson arrived as the
meeting was in progress.
HB 329 - BAIL RESTRICTIONS
2:18:43 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 329, "An Act relating to bail." [Before the
committee was a proposed committee substitute (CS) for HB 329,
Version 24-LS1302\F, Luckhaupt, 2/14/06, which had been adopted
as the work draft on 2/23/06; in committee packets was a
proposed committee substitute (CS) for HB 329, Version 24-
LS1302\Y, Luckhaupt, 2/23/06.]
The committee took an at-ease from 2:19 p.m. to 2:20 p.m.
2:20:25 PM
REPRESENTATIVE COGHILL moved to adopt the proposed CS for HB
329, Version 24-LS1302\Y, Luckhaupt, 2/23/06, as the work draft.
There being no objection, Version Y was before the committee.
2:21:01 PM
BEN MULLIGAN, Staff to Representative Bill Stoltze, House
Finance Committee, Alaska State Legislature, one of the prime
sponsors of HB 329, relayed on behalf of Representative Stoltze
that Version Y will allow the court to temporarily release a
defendant for the death of an immediate family member or for the
birth of the defendant's child if the defendant is charged with
a misdemeanor or a class B or C felony and the court solicits
and considers information from the Department of Corrections
(DOC) regarding the defendant's conduct while incarcerated.
2:21:48 PM
REPRESENTATIVE GRUENBERG referred to Amendment 1, which read
[original punctuation provided]:
Page 1, Line 11, following "defendant"
Insert "who has not satisfied bail"
REPRESENTATIVE GRUENBERG asked whether there is any problem with
Amendment 1.
REPRESENTATIVE COGHILL [although no formal motion had been made]
objected for the purpose of discussion.
MR. MULLIGAN relayed that the sponsor, the DOC, and the
Department of Law (DOL) have indicated that they are amenable to
Amendment 1.
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 1.
CHAIR McGUIRE, in response to a question, offered her belief
that the bill's current language is clear, but added that she is
amenable to Amendment 1 if others are.
REPRESENTATIVE COGHILL removed his objection.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1. There being none, Amendment 1 was adopted.
2:23:13 PM
REPRESENTATIVE COGHILL moved to report the proposed CS for HB
329, Version 24-LS1302\Y, Luckhaupt, 2/23/06, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal notes. There being no objection, CSHB 329(JUD) was
reported from the House Judiciary Standing Committee.
REPRESENTATIVE GRUENBERG thanked the sponsor and the
administration for working with him to address his concerns.
[CSHB 329(JUD) was reported from committee.]
HB 446 - PENALTY FOR UNLAWFUL TRADE PRACTICE
2:23:54 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 446, "An Act relating to the amount of a civil
penalty for an unlawful act or practice in the conduct of trade
or commerce."
CHAIR McGUIRE, speaking as the sponsor, noted that Alaska
continues to top the nation in fraud complaints, and relayed
that HB 446 attempts to tighten up Alaska's consumer protection
laws and send a strong message that fraud will not be tolerated
in Alaska.
2:24:57 PM
TED POPELY, Legislative Council Legal Office, Alaska State
Legislature, relayed that HB 446 simply increases the civil
penalties that the Department of Law (DOL) may avail itself of
under the [Alaska Unfair Trade Practices and Consumer Protection
Act], civil penalties that are used as a tool to enforce the Act
against companies that may defraud Alaskan consumers. Currently
the law permits civil penalties to be sought by the DOL and the
attorney general in cases of consumer fraud, consumer deception,
and other acts forbidden under the Act. The current civil
penalties have been in place since the Act was originally
enacted in 1970, and they are rather low in comparison to other
states, particularly given the rate of inflation.
MR. POPELY explained that HB 446 proposes to modify two
provisions of current law: AS 45.50.551(a) and AS 45.50.551(b).
Proposed AS 45.50.551(a) will increase the civil penalty
included therein from "$25,000 per violation" to "$50,000 for
each violation", and will apply in situations where a company
violates an injunction [or restraining order] pertaining to
deceptive practices. Proposed AS 45.50.551(b) will change the
civil penalty included therein from "$5,000 per violation" to
"not less than $1,000 and not more than $25,000 for each
violation", and will apply in situations where one violates a
provision of the [Alaska Unfair Trade Practices and Consumer
Protection Act].
2:27:58 PM
REPRESENTATIVE GRUENBERG referred to Section 1 of the bill,
specifically the language in current law that says in part, "the
cause shall be continued". He characterized this phrase as
"ancient language," and asked whether it would be sufficient to
simply say that the court retains jurisdiction.
CYNTHIA DRINKWATER, Assistant Attorney General, Commercial/Fair
Business Section, Civil Division (Anchorage), Department of Law
(DOL), agreed that the phrase, "the cause shall be continued",
is probably unnecessary.
REPRESENTATIVE GRUENBERG suggested that the same could be said
of the phrase, "the attorney general acting in the name of the
state may petition for recovery of the penalties", in that it
seems to be requiring the attorney general to petition the court
in a situation where only a writ of execution needs to be
obtained.
MS. DRINKWATER pointed out, however, that the way the DOL
requests civil penalties is initially via the complaint itself.
Then, once a case is at the point where a final judgment is
sought, the DOL asks for civil penalties via a motion for civil
penalties. Therefore, according to her understanding, she
remarked, the word "petition" is a bit broader than what
Representative Gruenberg is suggesting.
REPRESENTATIVE GRUENBERG surmised, then, that the language is
referring to the motion for civil penalties rather than a writ
of execution.
MS. DRINKWATER concurred. In response to questions, she relayed
that she doesn't see a problem with the way the current language
in AS 45.50.551(a) is drafted.
REPRESENTATIVE GRUENBERG said he's wondering whether Section 3,
the applicability provision of the bill, will cause an ex post
facto problem from a constitutional standpoint. He noted that a
memorandum he'd received from Legislative Legal and Research
Services, written by Dennis C. Bailey, raises this issue and
states in part:
In conclusion, I do not know how this issue would be
resolved by a court. However, the applicability
section you propose changes the penalty for events
that have already occurred. The fines are designated
as a penalty. It would be difficult to argue that the
fines are compensatory rather than punitive. This
seems to run afoul of the ex post facto prohibition.
REPRESENTATIVE GRUENBERG said it seems to him that the committee
has three choices: leave the language as is and allow the court
to decide; strike Section 3; or insert other language. He asked
Ms. Drinkwater whether [the DOL] would be prepared to defend the
current language if the committee left it as is.
MS. DRINKWATER suggested that perhaps Mr. Popely could better
address that issue, but pointed out that Clyde (Ed) Sniffen, Jr.
- Assistant Attorney General, Commercial/Fair Business Section,
Civil Division (Anchorage), Department of Law (DOL) - had
conducted an analysis of that issue and had come to a different
conclusion.
2:34:10 PM
MR. POPELY concurred with Ms. Drinkwater regarding Mr. Sniffen's
opinion. Anytime there is an applicability section containing a
date other than the effective date of the Act, it will raise a
potential ex post facto issue, Mr. Popely remarked, but added
that according to conversations he'd had with Mr. Sniffen, Mr.
Sniffen doesn't think Section 3 will cause an ex post facto
problem for several reasons: generally ex post facto challenges
are directed at purely punitive actions, and the civil penalties
in the bill are a hybrid of punitive and compensatory action; ex
post facto challenges are generally most successful when they
pertain to purely criminal acts and criminal violations, and the
[Alaska Unfair Trade Practices and Consumer Protection Act] is
not a criminal statute; the conduct referred to in the bill will
have been illegal at the time the penalties are assessed and the
bill doesn't create any new civil or criminal liability -
instead the amount of liability is simply altered; and no
substantive rights are being denied via the proposed increases.
MR. POPELY said that these are all points that the court looks
at in making an ex post facto analysis. Mr. Popely offered his
understanding that there are only a handful of pending cases
that would be impacted by the proposed applicability provision
as it is currently written, and that any new cases that [are
filed] after the effective date of the bill won't be affected by
the applicability provision.
REPRESENTATIVE GRUENBERG posited that that won't necessarily be
the case, and offered an example wherein an action is brought
within the statute of limitations against a company that
committed fraud in the past but no one knew about it.
MR. POPELY concurred with that point.
CHAIR McGUIRE suggested that they ought to provide the state
with the option of seeking the aforementioned civil penalties if
it is willing to pursue them.
REPRESENTATIVE GRUENBERG concurred.
MR. POPELY also concurred.
2:38:48 PM
STEVE CLEARY, Executive Director, Alaska Public Interest
Research Group (AkPIRG), indicated that he concurs with the
comments in favor of HB 446, characterizing the bill as a great
way to modernize consumer protection in Alaska. It's good to
know that the consumer protection laws are about to be updated,
he remarked, adding that those updates, along with other
legislation currently moving through the process are things that
the DOL will be able to make use of. He concluded by indicating
that [AkPIRG] is in full support [of the bill].
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 446.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
delete the phrase, "and the cause shall be continued," from
page 1, lines 8-9.
REPRESENTATIVE ANDERSON objected for the purpose of discussion.
CHAIR McGUIRE said she is assuming that if Mr. Sniffen had had
concerns about the phrase that Amendment 1 proposes to delete,
he would have brought those concerns to the committee's
attention.
REPRESENTATIVE GRUENBERG, in response to a question, offered
that the aforementioned phrase is not modern terminology. He
indicated that he is amenable to having the language reinserted
later if Mr. Sniffen objects to its removal.
REPRESENTATIVE COGHILL offered his understanding that by
retaining jurisdiction, a district would be able to continue an
action.
REPRESENTATIVE GRUENBERG concurred.
REPRESENTATIVE ANDERSON removed his objection.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1. There being none, Amendment 1 was adopted.
2:42:37 PM
REPRESENTATIVE COGHILL moved to report HB 446, as amended, out
of committee with individual recommendations and the
accompanying zero fiscal notes. There being no objection,
CSHB 446(JUD) was reported from the House Judiciary Standing
Committee.
HB 441 - THERAPEUTIC COURT FOR DUI/SENTENCING
2:43:25 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 441, "An Act relating to operating or driving a
motor vehicle, aircraft, or watercraft while under the
influence; relating to mitigating factors in sentencing;
amending Rule 35, Alaska Rules of Criminal Procedure; and
providing for an effective date."
2:43:41 PM
HEATHER NOBREGA, Staff to Representative Norman Rokeberg, Alaska
State Legislature, sponsor, relayed on behalf of Representative
Rokeberg that therapeutic courts have undergone a lot of
improvements and are important to the state, and that HB 441
simply takes all of the therapeutic court tools created over the
last several years - including the DUI pilot program that is due
to expire on June 30, 2006 - and melds them into one uniform
statutory structure for therapeutic courts.
CHAIR McGUIRE noted that committee packets contain a sectional
analysis.
2:45:17 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), indicated that [the ACS] would like to have the
provisions of the aforementioned pilot program - established via
House Bill 172 in 2001 - placed in statute, and would like to
keep therapeutic courts going. He said that as HB 441 moves
through the process, the ACS will be working with the
therapeutic court judges, the Department of Law (DOL), the
Department of Corrections (DOC), the Public Defender Agency
(PDA), the Alcohol Safety Action Program (ASAP), and other
interested parties to [improve] the bill. He concluded by
relaying that the ACS supports HB 441.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 441.
REPRESENTATIVE ANDERSON characterized the therapeutic court
model as innovative and as an improvement over incarceration,
and offered his belief that therapeutic courts should be
adequately funded and supported.
CHAIR McGUIRE asked that the committee's thanks for his work on
this issue be relayed back to the sponsor.
2:48:13 PM
REPRESENTATIVE ANDERSON moved to report HB 441 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 441 was reported from the
House Judiciary Standing Committee.
The committee took an at-ease from 2:48 p.m. to 2:49 p.m.
HB 414 - INTERCEPTION OF MINOR'S COMMUNICATIONS
2:49:51 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 414, "An Act relating to allowing a parent or
guardian of a minor to intercept the private communications of
the minor and to consent to an order authorizing law enforcement
to intercept the private communications of the minor." [Before
the committee was CSHB 414(HES).]
MICHAEL O'HARE, Staff to Representative Pete Kott, Alaska State
Legislature, sponsor, said on behalf of Representative Kott that
HB 414 is intended to protect children from insalubrious
characters and predation. Currently, if a child is
communicating with someone, it is illegal for a parent to
intercept that communication and take that person to court. In
order to address this problem, HB 414 makes it legal for parents
of a minor child to intercept communications, and allows
parents, if acting in good faith and in the best interest of the
child, to give law enforcement officials the authority to
intercept the child's communications via court order. He
relayed that while the sponsor recognizes that the bill might
raise issues regarding the right of privacy, the sponsor feels
that the state's compelling interest in the welfare of children
outweighs the right of privacy.
MR. O'HARE explained that Section 1 allows the parents or
guardians of a minor to petition the court for an ex parte order
authorizing law enforcement to conduct a wire tap if the parents
or guardians are acting in good faith and with an objectively
reasonable belief that doing so is necessary for the welfare of
the minor. [Section 3] allows the parents or guardians of a
minor to intercept a communication between a minor and a third
party unless [that third party is] the minor's attorney or
guardian ad litem. [Section 4] defines a minor as a child under
the age of 18 who is not emancipated. He mentioned that there
is a proposed amendment in members' packets that will add a
definition of "parent" to Section 4; that proposed amendment
read [original punctuation provided]:
Page 4, after line 5, add:
(12) "parent" means a natural person who is not
prohibited by court order from communicating with the
minor and is the minor's natural or adoptive parent of
the minor's legally appointed guardian; "parent" does
not include a person whose parental rights toward the
minor have been terminated by court order.
[Following was a brief discussion regarding what version of the
bill was before the committee.]
2:53:28 PM
MR. O'HARE relayed that while the sponsor recognizes the impact
HB 414 may have on divorce proceedings and child custody
proceedings, the sponsor feels that taking good care of children
and monitoring their activities takes precedence, particularly
given that parents are held responsible for the actions of their
children.
REPRESENTATIVE GARA asked what will happen in situations where
one parent wants to listen in on conversations the child is
having with the other parent in order to use that information in
a custody battle.
MR. O'HARE referred to [proposed AS 42.20.320(a)(9), which
begins on page 3, line 30], and suggested that adding the words,
"if it is in good faith and based on the objectively reasonable
belief that it is necessary for the welfare of the minor", would
address such situations should they arise.
2:56:23 PM
REPRESENTATIVE COGHILL pondered whether the aforementioned
proposed amendment should also reference "custodial parent",
suggesting that such a change might address estranged family
situations.
REPRESENTATIVE GRUENBERG opined that HB 414 will open up a
significant problem in custody cases and divorce cases wherein
one parent wants to tape record [the child's] conversations with
the other parent, and offered his understanding that a number of
federal court of appeals' decisions have addressed the issue of
whether the federal wiretapping Act permits such recordings,
with the majority of federal courts permitting it as a domestic
relations exception. He pointed out that he has been successful
in getting a transcript of such a recording by arguing that
regardless of whether the recording was illegal, it was
permissible [as evidence] in that particular proceeding. Some
states are trying to get around the federal issue by raising the
question of whether such recordings should be legal under state
law. He predicted that in the majority of situations, HB 414
will be used by warring parents to tape record a child's
conversations with the other parent, and so he is concerned
because any good divorce lawyer will simply advise his/her
client to tape record every single communication the child has
with the other parent.
REPRESENTATIVE GRUENBERG opined that HB 414 will take on a
different dimension in family law cases, and expressed his
belief that a child should be able to freely talk privately with
his/her parents and siblings unless there is a really good
reason for not allowing it. He predicted that at some point
lawyers will begin advising a child who is the subject of a
custody battle to not say anything that he/she doesn't want used
in court; this will become part of the legal strategy and the
child will be put right in the middle of the battle. Currently
the courts generally try to keep the child out of the middle of
custody battles; for example, the courts don't ask children to
testify or speak to them in chamber. Though in one case, he
recounted, the child said she wanted to live with her father,
and when the judge spoke to the child in chamber the judge found
out that the reason the child wanted to live with her father was
because he had promised her a pony.
REPRESENTATIVE GRUENBERG suggested that the sponsor and his
staff, as well as the committee, get input from family law
practitioners, the [American] Bar Association's (ABA's) Family
Law section, and the American Academy of Matrimonial Lawyers
(AAML) regarding HB 414. "This is not primarily a criminal
issue," he stated, reiterating that [the bill] will be used by
warring parents. He indicated that his main concern centers on
[Section 3] though he'd also like to ensure that [Section 1]
will not be misused either.
3:03:04 PM
MR. O'HARE reiterated that the sponsor's intent is to protect
children, and so although there is the possibility that what
Representative Gruenberg predicts will occur, the sponsor still
feels that it will be in the best interest of Alaska's children
to adopt this legislation. Mr. O'Hare indicated that the
sponsor would be amenable to inserting language in [proposed AS
42.20.320(a)(9)] specifying that the parents must be acting in
good faith.
CHAIR McGUIRE asked what prompted the introduction of HB 414.
MR. O'HARE said it was a child custody situation in which one
parent discovered that the child was being emotionally abused by
the other parent and also discovered that recording the child's
conversations with that other parent was illegal. For the
sponsor, this prompted the question of what happens in
situations involving a child who is having conversations with a
third party who might be seeking to harm the child or coerce the
child into doing something against the law.
CHAIR McGUIRE indicated that [CSHB 414(HES)] would be held over
in order for the sponsor and his staff to further research the
issues raised and perhaps find solutions to members' concerns.
The committee took an at-ease from 3:06 p.m. to 3:07 p.m.
HB 93 - DENTISTS AND DENTAL HYGIENISTS
3:07:32 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 93, "An Act relating to dentists and dental
hygienists and the Board of Dental Examiners; establishing
certain committees for the discipline and peer review of
dentists; excluding the adjudicatory proceedings of the Board of
Dental Examiners and its committees from the Administrative
Procedure Act and from the jurisdiction of the office of
administrative hearings; and providing for an effective date."
[Before the committee was CSHB 93(L&C); in committee packets was
a proposed committee substitute (CS) for HB 93, Version 24-
LS0384\S, Mischel, 2/1/06.]
3:07:37 PM
HEATH HILYARD, Staff to Representative Tom Anderson, Alaska
State Legislature, sponsor, noted on behalf of Representative
Anderson that committee packets contain a proposed committee
substitute (CS) for HB 93.
3:08:07 PM
REPRESENTATIVE COGHILL moved to adopt the proposed CS for HB 93,
Version 24-LS0384\S, Mischel, 2/1/06, as the work draft. There
being no objection, Version S was before the committee.
MR. HILYARD explained that [Version S] creates a "peer review
committee" for the Board of Dental Examiners, which oversees
dentists and dental hygienists operating in the state. This
will provide members of these professions greater involvement in
the adjudicatory proceedings that come before the Board of
Dental Examiners. He mentioned that representatives from the
Alaska Dental Society were available and could stress the value
and importance that the proposed changes represent for them. He
mentioned that members' packets contain a summary of the changes
encompassed in Version S.
MR. HILYARD reviewed those changes. A change on page 2, line
30, reinserts the words, "or knowingly cooperated in"; this
language mirrors language [on page 8], and [counsel] for the
Alaska Dental Society believed that keeping the language
consistent throughout the bill was of value. A change on page
4, line 3, inserts the word, "physically" between "who" and
"reside"; this addresses the concern that those who serve on the
Board of Dental Examiners actually reside in the state. A
change to page 4, line 3, inserts the word, "clinical" between
"the" and "practice"; this addresses the concern that those who
serve on the Board of Dental Examiners are currently clinically
practicing. A change to page 7, line 2, substitutes the word,
"reasonable" for "substantial"; this pertains to the type of
evidence that would be required. A change to page 9, lines 8-9,
deletes the words, "or an approved provider of continuing
education for dentists"; [the Alaska Dental Society felt] that
using the term, "dental schools" would be sufficient. A change
to page 13, line 28, provides for a $50,000 civil fine.
REPRESENTATIVE GRUENBERG [although Version S had already been
adopted as the work draft] said he was objecting to the adoption
of Version S for the purpose of asking a question. He referred
to page 4, line 3, and noted that there are types of dentistry
practice other than clinical, such as forensic dentistry and
academic dentistry. He asked what other types of non-clinical
dentistry practices exist.
3:11:46 PM
DAVID G. LOGAN, D.D.S., Chairman, Legislative Affairs Committee,
Alaska Dental Society, acknowledged Representative Gruenberg's
point, and said that a dentist performing insurance reviews
would also be considered to be practicing dentistry.
GEORGE SHAFFER, D.D.S., Member, Legislative Affairs Committee,
Alaska Dental Society, added that "public health dentistry"
would also be considered a dentistry practice; a dentist with
such a practice analyzes epidemiological data. He indicated
that dentists who don't have a clinical practice won't
necessarily be staying current with clinical dentistry
practices.
REPRESENTATIVE GRUENBERG said he understands why there would be
a desire for members of the Board of Dental Examiners to be
dentists who actually perform dental procedures on patients.
[Although Version S had already been adopted as a work draft] he
removed his objection to the adoption of Version S.
REPRESENTATIVE COGHILL noted that proposed AS 08.36.010 -
located on page 4, lines 13-16 - specifies what would constitute
a "practice of dentistry" and a "practice of dental hygiene" for
purposes of that section.
3:15:21 PM
REPRESENTATIVE WILSON offered her understanding that there is a
shortage of dentists willing to practice in rural areas of the
state, so much so that some Native corporations are sending
people down to New Zealand to get training in this field. She
asked whether HB 93 would alleviate this problem.
DR. LOGAN said HB 93 would have no affect on that issue; rather,
it simply pertains to the make up and function of the Board of
Dental Examiners with regard to disciplinary actions, with the
intent being to give the Board of Dental Examiners more insight
into the cases that come before it.
DR. SHAFFER, in response to a question, said that HB 93 was
triggered by the fact that for many years the Board of Dental
Examiners was making disciplinary decisions without ever seeing
any evidence, and it was felt that this was unfair, particularly
given that these decisions could affect a person's career.
DR. SHAFFER emphasized that the Alaska Dental Society would like
the state to be more involved [in the Board of Dental
Examiners's disciplinary process]. Presently peer review is
only done by [and for] Alaska Dental Society members, and if one
is not a member, then peer review is not available; passage of
HB 93 will allow the peer review process to fall under the
purview of the state, which will oversee all parts of that
process. Additionally, Version S contains a clause that
provides the Board of Dental Examiners with the ability to
address situations in which a dentist has issues of drug or
alcohol dependence.
REPRESENTATIVE GRUENBERG indicated that he is expecting the
Alaska Dental Society to continue developing language that will
address some of the concerns expressed by Catherine Reardon,
former director the Division of Occupational licensing, and said
that he is willing to assist in that effort. In response to a
question, he explained that those concerns pertained to:
timelines regarding the disciplinary process - possibly
eliminating from proposed AS 08.01.087 both the word,
"discipline" and subsection (e); the language in proposed AS
08.36.030 regarding what should happen if the president of the
Board of Dental Examiners is not a licensed dentist and how the
requirements listed on page 10 would then be met; possibly
eliminating the word, "only" from page 6, line 2, so that other
identifiers could be transmitted; possibly altering language on
page 7 such that examinations could be conducted by someone
outside the state who is otherwise qualified; language in
proposed AS 08.36.080 regarding how the Alaska Superior Court
would review a matter; and a possible conforming amendment on
page 10. He predicted that with a little bit of work, these
issues could be resolved by the time the bill is heard in the
House Finance Committee.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 93.
3:25:33 PM
REPRESENTATIVE COGHILL moved to report the proposed CS for HB
93, Version 24-LS0384\S, Mischel, 2/1/06, out of committee with
individual recommendations and the accompanying fiscal note.
REPRESENTATIVE GARA objected for the purpose of discussion. He
referred to page 11, lines 9, and page 12, line 19. He asked
whether a patient has the right to appeal a decision.
REPRESENTATIVE GRUENBERG noted that other language on page 11
specifies that "a party to the peer review" may appeal.
[Chair McGuire turned the gavel over to Representative
Anderson.]
REPRESENTATIVE GARA asked whether a patient gets to appeal a
decision that doesn't include a recommendation for disciplinary
action.
DR. SHAFFER said that he reads the language such that it means
either party could appeal a decision.
REPRESENTATIVE GARA noted, though, that the language appears to
only pertain to decisions that include a recommendation for
disciplinary action.
DR. SHAFFER said that the Alaska Dental Society would have no
objection to adding language which specifies that either a
patient or a complainant may appeal a decision that does not
include a recommendation for disciplinary action. In response
to comments, he said the Alaska Dental Society wants [the peer
review process] to be an open process, and so would be amenable
to any changes to that effect.
REPRESENTATIVE GARA said it seems like language on page 12 only
allows a licensee to appeal a decision for disciplinary action.
DR. SHAFFER said the Alaska Dental Society's response is the
same regarding that point.
REPRESENTATIVE GARA referred to language on page 2, lines 9-10,
and asked whether a finding against a dentist or dental
hygienist would remain confidential. He opined that such ought
to be made public - the public should know whether a dentist or
dental hygienist is performing poorly.
DR. SHAFFER pointed out that the bill contains a provision
specifying that the public is notified after the Board of Dental
Examiners takes action. He relayed that the Alaska Dental
Society is working on a conceptual change to "open that up even
more," so that more details can be added when the Board of
Dental Examiners notifies the public. He assured the committee
that the language on page 2, lines 9-10, is not making an action
of the Board of Dental Examiners confidential.
3:31:21 PM
REPRESENTATIVE GARA said he is considering offering a conceptual
amendment which would say that if the board finds that there is
a violation, the information relating to the violation shall be
made public.
The committee took an at-ease from 3:31 p.m. to 3:33 p.m.
[Representative Anderson returned the gavel to Chair McGuire.]
DR. SHAFFER referred to language on page 6, line 2, and
indicated that deleting the word, "only" ought to alleviate
Representative Gara's concern.
REPRESENTATIVE GARA pointed out, though, that the language on
page 6 pertains to providing notice in a newspaper that the
Board of Dental Examiners took some action. He opined that the
records relating to the violation should also be made public.
DR. SHAFFER said that the Alaska Dental Society has no intention
of purging records or attempting to hide something; if the Board
of Dental Examiners takes an action against a [licensee], that
"goes on the record" and is reported to the National
Practitioner Data Bank (NPDB).
REPRESENTATIVE GARA offered an example wherein a patient dies
because of the actions taken by a dentist; future consumers
should be informed that such has occurred.
REPRESENTATIVE COGHILL posited that the public will find out
about criminal action, and offered his understanding that using
newspapers is simply the typical way [that certain
organizations] inform the public of their decisions. Perhaps
the statutes should be updated to reflect that notification
should occur via other methods of communication as well, he
remarked.
CHAIR McGUIRE noted that there is a motion to report the bill
from committee.
3:36:30 PM
REPRESENTATIVE COGHILL withdrew the motion to report the bill
from committee.
[Following was a brief discussion regarding how the committee
wished to proceed.]
3:38:41 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 1, to alter the language on page 2 [lines 9-10] such
that when the Board of Dental Examiners finds that there has
been a violation by a licensee, the information relating to the
violation, including the board's decision, shall be made public
except that personal medical records of the licensee shall not
be made public. There being no objection, Conceptual
Amendment 1 was adopted.
REPRESENTATIVE GARA referred to the language on page 7, lines
30-31, and asked what is meant by the phrase, "impose another
form of discipline that the board determines is warranted and
necessary".
DR. SHAFFER said this language would allow the Board of Dental
Examiners the flexibility to impose lesser forms of discipline
than it would for more serious accusations.
REPRESENTATIVE GRUENBERG suggested that Representative Gara work
with him and the Alaska Dental Society representatives to
address this issue before the bill is heard in the House Finance
Committee.
CHAIR McGUIRE noted that the committee could either leave that
language as is or strike out all references to it and allow the
issue to be addressed before the bill is heard in the House
Finance Committee. She opined that the language should be more
specific.
DR. SHAFFER referred to language on page 14, lines 28-30, which
says in part, "The board shall establish standards in regulation
for the imposition of consistent discipline linked to each
action giving rise to the discipline". This wording would
require the Board of Dental Examiners to specify, via
regulations, what type discipline would be administered for each
type of [violation]; the promulgation of such regulations would
require the Board of Dental Examiners to go through the
regulation process and the public notice and comment periods
that such a process entails. This will ensure that all future
boards apply discipline equally using the same guidelines.
CHAIR McGUIRE acknowledged Dr. Shaffer's points, but opined that
the statutory language should be clarified.
REPRESENTATIVE ANDERSON suggested simply replacing the words,
"another form" with the words, "a lesser form".
3:44:01 PM
REPRESENTATIVE WILSON made a motion to adopt Amendment 2, to
delete from page 7, line 30, the word "another" and insert the
words, "a lesser". There being no objection, Amendment 2 was
adopted.
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 3, to alter the language on page 9, line 16, such that
the Board of Dental Examiners shall comply with federal and
state laws governing discrimination. Noting that the current
language pertains to decisions based on the existence of a
physical disability, he remarked, "I don't want to relax the
laws on discrimination."
REPRESENTATIVE ANDERSON suggested instead simply adding the
phrase, "with all applicable laws relating to discrimination"
this would address situations in which there are municipal laws
relating to discrimination.
REPRESENTATIVE GARA said, "Sure; federal, state, and municipal,
I guess ...."
CHAIR McGUIRE opined that "all applicable" would be too [broad].
REPRESENTATIVE COGHILL concurred, noting that a physical
disability could actually impair the person's ability [to
perform the services correctly]. He surmised that the bill is
attempting to address situations in which a licensee has become
unable to perform the duties required of a dentist.
REPRESENTATIVE GARA offered his understanding that state and
federal laws allow for the termination of someone's license if
such a person would be a danger to the public.
CHAIR McGUIRE noted that the language [in proposed AS
08.36.315(C)] starts out by saying, "The board may not
discriminate against a licensee solely on the basis of a mental
of physical impairment or disability". She asked Representative
Gara whether he would like the language to say, "shall comply
with both federal and state law".
REPRESENTATIVE GARA remarked, "Federal and state law governing
discrimination - yeah."
3:47:20 PM
REPRESENTATIVE GARA restated his motion to adopt Conceptual
Amendment 3, to alter the language on page 9, line 16, such that
it says in part, "shall comply with federal and state laws
governing discrimination".
REPRESENTATIVE GRUENBERG asked whether the language on lines 10-
11 of page 9 would be retained.
REPRESENTATIVE GARA and CHAIR McGUIRE said yes.
REPRESENTATIVE COGHILL characterized the language being proposed
by Conceptual Amendment 3 as redundant.
CHAIR McGUIRE, after ascertaining that were no objections,
announced that Conceptual Amendment 3 was adopted.
3:47:57 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 4, "wherever the licensee has a right to appeal, the
complainant or ... the department shall also have the same
rights to appeal." In response to questions, he said that
Conceptual Amendment 4 would apply to pages 11 and 12 and
perhaps elsewhere as well, and would ensure that all parties
have the right to appeal equally. There being no objection,
Conceptual Amendment 4 was adopted.
REPRESENTATIVE GRUENBERG in response to comments, relayed that
he is willing to vote to report the bill from committee as long
as he has an opportunity, before the bill is heard in the House
Finance Committee, to work with the Alaska Dental Society
representatives [and the sponsor's staff] to address his
concerns, perhaps via a new proposed CS.
MR. HILYARD agreed to assist Representative Gruenberg.
3:51:01 PM
REPRESENTATIVE COGHILL moved to report the proposed CS for
HB 93, Version 24-LS0384\S, Mischel, 2/1/06, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 93(JUD) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:51 p.m.