House Judiciary Committee Part 1
Video
Transcript
Bills discussed (15)
| Bill | Title | Sponsor | Status |
|---|---|---|---|
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HB1869
· 4 mentions in chapter, transcript
Matched: “HB1869”
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Pre-2017 bill | ||
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HB1352
· 2 mentions in transcript
Matched: “…l 1886, I think that's my bill, will be moving to deferred. House Bill 1352, moving to deferred. Members, if you have bills on our agen…”
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Pre-2017 bill | ||
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HB1723
· 2 mentions in chapter, transcript
Matched: “HB1723”
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Pre-2017 bill | ||
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HB1487
· 1 mention in transcript
Matched: “…presentative king will have a special order of business for house bill 1487 um at let's let's why don't we say 1010 um on um on next on…”
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Pre-2017 bill | ||
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HB1759
· 1 mention in chapter
Matched: “HB1759”
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Pre-2017 bill | ||
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HB1785
· 1 mention in chapter
Matched: “HB1785”
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Pre-2017 bill | ||
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HB1886
· 1 mention in transcript
Matched: “House Bill 1886, I think that's my bill, will be moving to deferred. House…”
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Pre-2017 bill | ||
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HB1917
· 1 mention in chapter
Matched: “HB1917”
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Pre-2017 bill | ||
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HB1982
· 1 mention in chapter
Matched: “HB1982”
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Pre-2017 bill | ||
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HB2006
· 1 mention in transcript
Matched: “before we hear from Representative Altus. House Bill 2006 by resident Hubbard is being moved to deferred.”
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Pre-2017 bill | ||
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HB2096
· 1 mention in chapter
Matched: “HB2096”
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Pre-2017 bill | ||
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HB2169
· 1 mention in chapter
Matched: “HB2169”
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Pre-2017 bill | ||
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HB2198
· 1 mention in chapter
Matched: “HB2198”
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Pre-2017 bill | ||
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SB636
· 1 mention in chapter
Matched: “SB636”
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Pre-2017 bill | ||
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SB637
· 1 mention in chapter
Matched: “SB637”
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Pre-2017 bill |
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Call this meeting to order. Guests, if you would like to speak for or against
Speaker 9
0:33
the bill, please be sure to sign in to the right on the sign-in sheet
Speaker 13
1:00
All right, we're ready to go. Chairman Williams is out, and I'm in the chair. So we're going to start with Representative
Representative David "Bubba" Powers
Unverified
1:24
Powers. I understand you have amendments. Yes,
sir, I do. an amendment to House Bill 1869, and the changes are involving those district courts that have
some problems geographically and don't want to be included in the legislation at this time, and that's what the amendment does is makes those changes, and I'd appreciate adoption of
the amendment. Okay. Representative Power has moved for adoption amendment. All in favor, say aye. Aye. Okay. Representative Powers, when
we get those amendments out, you can proceed. All right. Thank you, Mr.
Representative David "Bubba" Powers
Unverified
1:58
Chairman. I'm going to ask J.D. Gingrich and Keith Kavanis to come to the table with me if we have any questions regarding the amendments and the bill.
Speaker 13
2:07
Okay, members, you all have the amendments. You want to go ahead and have your Mr. Kavnis and who
Representative David "Bubba" Powers
Unverified
2:30
is the other, please? Yes, J.D. Gingrich. They're on their way. Okay. I
can float until they get here, but I'll go ahead and just say that, Mr. Chair, these amendments,
we have vetted this bill pretty well last week with about two and a half hours of questioning and testimony for and against. And what we found out is the major concerns were all geographical concerns. There were some philosophical concerns, but the brunt of those issues were geographical. And though we intended for this legislation to be flexible and to amend those concerns going forward over the next several years,
to allay the fears that some of these districts had, we just simply took them out of this legislation where they would not feel pigeonholed in the bill, and it gives them the ability to draw their districts and go before the District Court Resource Assessment Board in the next couple of years and work out the best situation they can. If you go on the amendment, it's a little bit complicated, but simply put, we tried to amend those districts out,
especially if it was two, three, or four districts that had that geographical problem. If it was a consensus among those folks that they just weren't interested in being in legislation, we took them out. There were a couple where we had three counties where one might have been against and two might have been for that we went ahead and kept in the bill. But if you have any questions, I promise Representative Altees that since we have asked so many questions prior to this, that this would be relatively simple.
but we will try to answer your questions. Thank you, Mr. Powers, for that explanation. Members, any
Speaker 29
4:35
questions for Mr. Powers? Mr. Ratliff, you're recognized for a question. Thank you,
Representative David "Bubba" Powers
Unverified
4:40
Chairman. Representative Powers, did this fix the problem I had with it? And that is, tell
Representative David "Bubba" Powers
Unverified
4:47
Lawrence and Jackson County. That's correct. We amended you out, and what it simply does, You don't feel like your people don't feel like they're backed against the wall.
And so next legislative session, I'm sure you're going to want to run this legislation. It's pretty simple stuff. And so you can have a bite of that pie yourself. Thank you. Mr. Walker, question? No, motion. Let me back up. I want to clarify something. Mr. Gingrich is telling me that Lawrence County Okay
They are still there I mean if Representative Ratliff if you could tell me exactly what
Speaker 29
5:46
the problem was I'll try to remember They kind of called, and our judge is wanting to stay about 10 more years, and they'd like to look at 2021 on that date to change.
Speaker 39
5:57
I don't blame him. What was the voting date? Was it 2017? No, was it 2013 is what I got in this
Speaker 29
6:02
bill. Hang on just a second. We'll look. It's on page 21. Well,
Representative David "Bubba" Powers
Unverified
6:38
the only thing I can tell you at this time,
we can certainly, because we're going to make an amendment on the Senate end, We can talk about it further. But what I would say, if your judge is the only one, because generally these that are folding in at 13, they did want to go at that point. But the sheriff
Speaker 29
6:57
and the county judge and everybody, you know, they came and said they would like it, and they're pushing me pretty hard on that thing. Yeah. But you have both counties? No, I just got Lawrence.
Yeah. Ms. Dixon, or Representative Dixon is in the other one.
Representative David "Bubba" Powers
Unverified
7:15
Well, what I can tell you at this point is we didn't know that that was a major concern. I know you and I have talked about it. So we can certainly talk about it. Representative Harrelson is going to run it for me on the other end, and we will talk about the feasibility of it because we are going to make an amendment on the other end more than likely. All right. Thank you, sir. Thank you, Mr. Eubanks. You recognize?
Representative Jon S. Eubanks
Unverified
7:43
Thank you, Mr. Chairman. Representative Powers, I believe our district's still left in this, too, and I'd had some input from people in my district that they weren't necessarily in favor of
Speaker 54
7:56
this. And who is that? 11th District, it's Logan County. Okay, well,
Representative David "Bubba" Powers
Unverified
8:05
let me say this. We have had pushback from Scott County, but we were told that Logan and Yale were all for this.
So I don't know who your pushback is coming from, Representative Eubanks, but we haven't had anything from them, I mean, frankly. And we're just going on the assumption of what we were told when we drew the map up. But I haven't had any e-mails or contacts with anyone from those two. But Representative Rice and I have talked about Scott, which, you know, we know they are opposed. Thank you. Thank you. Thank you, Mr. Ubeck.
Members, any additional questions? Mr. Branscombe, you recognize?
Representative David L. Branscum
Unverified
8:47
Thank you, Mr. Chair. Is it my understanding that Perry and Conway County are going to be out
Representative David "Bubba" Powers
Unverified
8:54
of this until? That's correct. Okay. And there's a possibility for an amendment, but that's a work in progress that we're going to be able to fix. All right. Thank you.
Thank you. Members, any additional questions? Seeing no questions, anyone in the audience who wants to speak for or against House Bill 1869? Seeing no one, Mr. Walker, let me see if Mr. Powers wants to close for his bid.
I'm closed. You're closed. Mr. Walker, you recognize for a motion? A motion to do pass. It's a proper motion. Any questions or discussion? I should do pass as
amended, correct, Mr. Walker? Yes, sir. Let me back up one second. I've got somebody signed up here. I don't know if they're in the room. Judge Baylor-House, Perry County, would you like to speak, Judge House? You're going to pass? All right. Thank you, Judge House.
All right. we have a motion do pass as amended any question or discussion seeing none all those in favor of passing house bill 1869 is amended and Kate by saying aye opposed no let's get the rollout guys chair can't determine Representative Baker
Speaker 71
10:24
Representative Powers Representative Rice Representative
Speaker 72
10:35
Nichols Representative Nichols Representative Rogers, Representative Rogers, Representative Slinkard, Representative
Speaker 71
10:49
Steele, Representative Steele, Representative Wright, Representative Vines, Representative Shepard,
Speaker 72
11:12
Representative Deffenbaugh, Representative Hammer,
Speaker 71
11:20
Representative Eubanks, Representative Branscombe, Representative Ratliff, Representative
Well, 12 votes. The motion carries. Congratulations, Mr. Powers. Thank you, Mr.
Speaker 78
11:58
Chairman. Passes. Thank you, Mr. Chairman. Passes. Thank
Speaker 79
12:01
you, Mr. Chairman. Passes. Thank you, Mr. Chairman. Passes. Thank
you, Mr. Chairman. Passes. What's his bill number? Altus 1723. 1723. 1723. 1723. Guys, a couple housekeeping matters
before we hear from Representative Altus. House Bill 2006 by resident Hubbard is being moved to deferred.
House Bill 1886, I think that's my bill, will be moving to deferred. House Bill 1352, moving to deferred. Members, if you have bills on our agenda, we're trying to clear our agenda. If we pass them over more than three times and you've not told us that you want us to hold them, we're going to move them to deferred as well. So we're going to try to clean this agenda. If you've got a bill that's on the active agenda, we've passed it more than three times. Please let us know, because if you don't, we're going to move it to the deferred list.
The third one was House Bill 1352, I believe, by Representative Tyler, to amend the Civil Rights Act of 1993 on the second page.
Members, Representative, we're near the end of the session and we've
got a lot of bills get done, so I'm going to not assume that the committee wants to set special orders because, of course, that takes time away from other members. But I'm going to see if you would like to – Representative King would like to have a special order of business for 1487 on next Thursday at 3-20 – that would be March 24th. What's the pleasure of the committee with regard to Representative King's special order?
there's been a motion that we allow him to have a special order of business all in favor by saying aye opposed no okay so representative king will have a special order of business for house bill 1487 um at let's let's why don't we say 1010 um on um on next on next thursday we'll go ahead and get that done first point of personal privilege committee I'd like to recognize students from Philander Smith College who are visiting with with us
today along with dr. Raphael Lewis and professor Parham the Philander Smith College is a historically black college located in district 36 which happens to be our district I appreciate you all being here with us would you guys stand up and let them see who you are. Thank
you very much. Now, Mr. Altus, you are recognized for House Bill
1723. Is that the one running? Yes, sir. All right. You're
recognized, Mr. Altus. Thank you, Mr. Chairman. We have an amendment in committee now we can either add this amendment or not but I would like men men to be passed out so that the members could could read it okay it's a top says 1723 is everyone have that okay you may remember a couple of weeks ago I ran a bill in here and several of the members as well as myself had some comments
about how this section of code was vague or ambiguous, and there were problems with it. And so I talked to Lieutenant Cora Gentry with the Arkansas State Police. She's a lawyer for the Arkansas State Police, and she basically wrote this bill for me. She had 99 percent of this bill as her suggestions. Mr. Altus, before you hear the bill, we've
got an amendment, correct? Yes. You're speaking on the bill. Let's get the amendment put on the bill so
we can talk to the bill.
Representative Gillum is making a motion to allow the amendment. All in favor of Representative Gillum's amendment to a motion to amend House Bill 1723. Indicate by saying aye. Aye. Opposed, no. Okay, Representative Altus, you're recognized to present House
Bill 1723 as amended. Thank you, Mr. Chair. Basically, this bill does nothing and changes nothing. there were you may remember there were three definitions for handgun
in these two sections of code and so we got that down to one definition there were two definitions of firearm in this section of code and we got that down to one and we used one in another section of code and basically some of this language has been moved around Most of the language that's underlined is just in another part of the bill, and it's been stricken in another part of the bill.
Lieutenant Cora Gentry has been sick. She was in bed last week, and I saw her yesterday, and she was not well. So I don't know where she is. I asked her to be here, but she obviously didn't show. But anyway, on page, there are three offenses in these two sections of code. I'll run through it real quickly. Page 1, line 26, says a person 18 years of age shall not knowingly possess a handgun. And then on page 2, line 3, these are the defenses to that prosecution.
Line 25 on page 2 says a person in this state shall not knowingly possess a firearm. and then uh that's been changed with the amendment to read a handgun and then the defense to that prosecution is on page 3 line 13 and then on page 4 line 23 is another offense, the offense of carrying a weapon.
And then line 27, I want you to notice the word purpose there, the purpose to employ the handgun, knife, or club as a weapon against a person. One item of interest here, Lieutenant Gentry wanted to eliminate knife out of this section. Chuck Lang, who I saw a minute ago, was here in the committee. He's with the Sheriff's Association. One of that left in, and so we left it in.
Representative Matthew Shepard was involved in writing this bill. And so anyway, the biggest change in the whole bill is on page 5, line 6, where Lieutenant Gentry asked me to define journey. And so we, Chuck Lang and I and Matt Shepard and several people discussed journey. I thought that neighborhood would be a good definition.
She thought county would be a good definition, so we put both in there. On line 13, these are the defenses to prosecution. And then basically the rest of the bill is mostly language that was already in the bill, already in the code that's been moved around. The way I came up with the definition for journey is there should be attached to the bill a sheet that looks similar to this.
It's a case law. If you'll look on the first page, hopefully there's underlined where it says about a third of the way down, the line starts off with Arkansas 1113 it says a journey has long been defined as where one travels a distance from home sufficient to carry him beyond the circle of his neighbors and general acquaintances and outside the routine of his daily business and about two-thirds of the way down there's a line that starts with Moralton
and it defines it again it says when the appellant traveled beyond the circle of his neighbors and general acquaintances The next page, about a third of the way down, it defines it again. This was a case in 1986. The first case was 1972. It says a journey is defined as where one travels a distance from home sufficient to carry him beyond the circle of his neighbors and general acquaintances.
About five, six lines on down, it talks about beyond the circle of his neighbors and general acquaintances. On the last page, some of these I circled the cases. It starts in 1885, 1891, 1905, 1911, 1931, 1976, 1986. And in all of these cases, the word neighbors was used to define the journey, where you're not supposed to, the dangers are not supposed to exist among one's neighbors.
But a journey is defined as a distant and a point distant enough to convey him beyond the circle of his neighbors So that's where I got neighbors and neighborhood Try to answer any questions Thank You mr.
Altus for that presentation members any questions for mr. Altus Mr. Vines recognize Thank
Representative John T. Vines
Unverified
21:57
you mr. Chairman Representative Office, if I read this correctly, if I carry my pocket knife in the Chili's, am I guilty under these provisions?
Okay. If you'll go back to page 4, line 27. If you're carrying it with a purpose to employ the knife as a weapon against a person, then you've broken the law. Let me direct you down.
Representative John T. Vines
Unverified
22:24
Excuse me. Let me follow up, Mr. Chairman. Sure. Go ahead, Mr. Vines. Let me take you down to line 29 is where
I was looking at the language that's added. Okay. I think we'd go back to 27, the purpose.
Representative John T. Vines
Unverified
22:42
Is it too independent of
one there? I'm not a lawyer, but I have lots of friends that are lawyers. But from all the lawyers that have gone over this thing, basically this amendment was written by Lee Watson, who was a prosecutor for eight years, and he's also an ASP, concealed carry trainer, teacher, whatever. And so Cora Gentry knew him and thought he was credible, and she approved these amendments.
And he wanted to move purpose to the front of this line, but several other lawyers looked at it and thought purpose in there was sufficient.
Mr. Vines, are you done? Mr. Altus, here's one more lawyer's opinion. I'd have to agree with Mr. Vines for purpose to apply to one, it'd have to be an A.
It'd have to be a part of A, line 23 is how I would read that. Of course, I'd defer all the other lawyers on the committee. But if it was there, it would apply to both one, two, and three below. But as I read it, it only applies to
one. But I just give you my free opinion. Mr. Walker, do you have a question? Yes, sir.
Representative John W. Walker
Unverified
24:18
I, too, share Mr. Vann's and Chairman Williams' concerns. But in following up on what Mr. Vann said, or at least asked, in Mr. Vann's example does carrying a knife presume that the person carrying
the knife has committed a crime I mean is that a presumption which of course puts the defendant in a position
of having to prove that he didn't carry it for
Speaker 110
24:54
that purpose I don't know like I said I'm not a
Representative John W. Walker
Unverified
24:57
lawyer but I have a lot of friends that are lawyers well I understand but those friends aren't here But in the, I mean, I think the question is, if I carry a knife and a policeman arrests me or sees me
with a knife, even if it's a pocket knife, then I can be taken to jail just for that possession, and there is a presumption that I have committed an offense of this law, isn't there?
I don't know. You don't know? Thank you. Mr. Walker, I don't know if I can answer that, but I would say what you're talking about is current law, so whatever the current law is, because that's not anything you're amending, Mr. Altus, but back to Mr. Vines and my concern, you are amending 2 and 3. That would be new law. Before there was only an A, so there was no need for purpose to apply to both 2 and 3,
So I think the standards of statutory interpretation would be pretty clear that purpose to employ does not and wouldn't be read to apply to two and three. I think that's pretty clear. I know what you're trying to do, and I don't disagree. I think this is a good amendment. I just want to try to make it better. I really believe that you would be well served to have a good look at that Because I think that that does not apply, and arguably you could be guilty of carrying a knife in the Chili's, regardless of what your intent was under this bill as it's drafted now.
Okay, this was all, like I said, this was all written, 99% of it was written by Cora. Well, we have one
other question. Let me see if Mr. Shepard. But Mr. Shepard wants to give his legal opinion on this as well. We'll get all the
Representative Matthew Shepherd
Unverified
26:57
lawyers here in just a minute. Thank you, Mr. Chairman. And I, too, have some concerns, and I did want to clarify. I wouldn't consider that I drafted this.
I participated in a conversation about it.
Yeah. anyway my question is with regards to the definition of journey
what what is yours or since you've been in conversation with the state police if a person is carrying a handgun outside of their neighborhood but within their county what would be would that be allowed or disallowed under this law there's always
Speaker 110
27:40
going to be discretion uh like currently you know journey is not defined
and so there's always going to be discretion by the policeman or the arresting officer or whatever you know like i tried to point out uh all of these things in here are are on a fence and then once you're arrested or whatever then you have a defense correct so uh there's always going to be discretion of the arresting officer no matter what we put in here.
There's going to have to be some discretion. Any additional questions, members? Seeing none, let's see if anyone in the audience wants to speak for or against House Bill 1723. I don't have anyone signed up. Anyone
in the audience wants to speak for or against House Bill
1723? Seeing no one, Mr. Altus, would you like to close for your bill,
Speaker 113
28:41
or would you like to consider some of these suggested corrections?
Could I amend this in committee to put purpose under A, 23, line, page 4, line 23A? Unfortunately, we can't take oral amendments.
Speaker 113
28:52
We can only take written amendments. We're known to be here a
while. You might have an opportunity to get it done and come back, or we'd be happy to try to take it first on Thursday, whatever you'd like to do. Actually, we can't take it first. Well, we can take
it first on Tuesday, I apologize, not Thursday.
Can I promise the members that we will amend it to put purpose in A? Your
Speaker 126
29:27
counsel back there is shaking his head. I'm sorry? and
pass this out well that's totally up to the committee i would not speak for the committee on where they'd like to do that i will if you're closed i'll find out they'll let you do it okay you're closed yes sir what's the pleasure of the committee
and a motion due pass by representative rice all in favor of due pass with the promise that mr altus will fix this on the senate side is that what your intention is and then bring it it back to us to concur. That's a proper motion. Again, that's House Bill 1723 as amended. All in favor, aye. Opposed, no. Ayes have it. Congratulations, Mr. Altus. We're going to be watching for that amendment. All right. Vice Chair Wilkins
is here to run 1785. Is
Speaker 132
30:44
are recognized. Thank you, Mr. Chairman. House Bill 1785 adds additional clarification for involuntary admission.
And I'd like to ask Dr. John Althoff if he would join me. He is Deputy Director of Arkansas Department of Human Services Division of Behavioral Health. Mr. Chairman and committee, current law allows for outpatient commitment now, however, it's
confusing and has not always been so interpreted. We believe that this confusion leads to less use of this option than should be available or is warranted. This bill makes explicit that outpatient treatment commitment is permissible. The advantage of this change is that when clinically appropriate, this permits treatment in a less restrictive environment and increases efficiency in the use of resources since outpatient
treatment is less costly than inpatient treatment. And so at this time, I'll turn to Dr. Althoff to see if he would identify himself and any comments that he might make, Mr. Chairman. Please do. John Althoff,
Speaker 135
32:26
Deputy Director, Division of Behavioral Health. And if I can answer any questions, I think that what was presented lays it out. Thank
you, Dr. Althoff. Vice Chair Wilkins, does that complete your presentation?
Speaker 137
32:41
Members, any questions for Representative Wilkins? Mr.
Representative Nate Steel
Unverified
32:49
Steele, you recognize? Thank you, Mr. Chairman. I was just kind of trying to digest this really quickly, and I heard your presentation. But could you tell me exactly how this changes current law? I don't, we don't have, this amendment does not show
Speaker 135
33:04
the text that precedes this amendment in the statutes. Well, it just adds the definition of outpatient commitment.
Speaker 142
33:11
In other words, in the statutes, I think it's number 19. There are 18 definitions before that one related to commitment, the whole commitment process. And this adds a number 19 becomes the definition of outpatient commitment. And again, it's just to make it clear that this is permissible. All of the existing laws related to commitment still apply.
And I think probably the most critical one is that in the end, And a judge has to order either inpatient or
Speaker 143
33:51
outpatient at that judge's what they think is appropriate. And this would
Representative Nate Steel
Unverified
33:58
you say this would make it to where if a judge orders a commitment, then the mental health people that are committing that individual would make the determination about inpatient or outpatient? No.
Speaker 142
34:11
We typically is a judge will ask us for an opinion.
We will evaluate the person and then give our opinion to the judge, and the judge makes the call. In other words. Okay. Thank
Representative Kim Hammer
Unverified
34:32
you, Mr. Chairman. Motion at the proper time. Thank you, Mr. Steele. Mr. Hammer, you recognize? Doctor, would you mind giving us an example of a situation in which a judge might determine that this would be beneficial? Are we talking about for, like, drug hab, drug hab situations,
or can you just expound and educate us
Speaker 142
34:55
that, please? I think a good example is individuals who benefit significantly from taking medication. So if they're taking a medication regularly, they are not psychotic, and if they stop taking it, they have a high risk of becoming psychotic. And so under an outpatient commitment, we can monitor that somebody is taking the medication regularly.
And so by doing that, then, you know, and there are different reasons that people don't
Representative Matthew Shepherd
Unverified
35:30
do that and end up back in the hospital. A follow-up
Representative Kim Hammer
Unverified
35:34
question, please. I just want to restate and maybe overlap on what was said a minute ago, but at no time would the mental health field be able to override a judge's decision in which direction it'd go in the event that there may be a disagreement of opinion, the judge would ultimately have the final say-so.
Speaker 153
35:52
Is that correct? Absolutely. Okay. Thank you, sir. Also, Mr. Chairman, I would just add, though I'm not a treatment specialist, like Representative Alta said earlier, he has a lot of friends that are lawyers. I've got some friends that are treatment specialists. My wife
Speaker 132
36:17
is a psychiatric social worker, which is why I'm so well balanced. But in our 30-some years of marriage, I've seen many cases where had people been properly monitored,
they would not have gotten into a crisis situation where they ended up in the hospital because they weren't taking their medications. So I think this is a really good bill, and I appreciate the department for bringing it. Thank you, Mr. Wilkins. Mr. Wright,
you recognize? Thank you, Mr. Chairman. Either
Representative Marshall Wright
Unverified
36:50
one of you all can address this. Wouldn't you agree with me that before any of this happens, a judge first has to find that the person is a danger to himself or others, so that protection is there first. Is that correct?
Speaker 156
37:03
Yes. In other words, all of the existing
Representative Marshall Wright
Unverified
37:06
laws pertaining to commitment continue to apply, including that one. And they've also been represented by counsel. Is that not correct? Yes, it is. Thank you. Thank you, Mr. Wright.
Any additional questions, members? Seeing none, anyone in the audience? He wants to speak for or against House Bill 1785. Seeing no one, Mr. Wilkins, would you like to close for your bill? You're closed. What's the pleasure of the committee? Mr. Branson has a motion of due pass. It's a proper motion.
Any question or discussion? All in favor of passing House Bill 1785 indicate by saying aye. Aye. Opposed, no. Congratulations, Mr. Wilkins. You have passed your bill. Thank you, Mr. Chairman and committee. Members,
we're going to, without objection, continue to skip around.
We're going to House Bill 1982 by Representative Meeks. Mr. Meeks, you are recognized.
Speaker 162
38:49
committee, my bill is a simple bill, it's House Bill 1982, an act concerning the dissemination of criminal history information and for other purposes. Just days before the 2010 general election, the Arkansas Supreme Court found District 83 legislative candidate Tom Fite ineligible to serve in the Arkansas House because of the October revelation of a 1984 misdemeanor plea involving bribery.
In early 2011, Representative Fred Smith resigned from the House immediately after his conviction for felony theft, leaving District 54 unrepresentative for the legislative session. Both of these problems could have easily been avoided by making the criminal records of candidates and government officials available to the public on demand. Transparency in the criminal histories of government officials and candidates for office is absolutely in a public interest. Citizens should be allowed to take that information into account when making decisions about their leaders.
It is important to note that this information is already public. The Arkansas Crime Information Center already assembles this information from publicly available data of arrests and convictions. However, for the average citizen to access this information, he or she would have to travel to courthouses in all 75 Arkansas counties, something that few have the time or energy to undertake. citizens should not have to bear this burden in order to compile information that is already public that is already collected in a state database by government employees at taxpayer expense exactly the kind of information that is
supposed to be available to everyone under our freedom of information laws making this information available upon request should create no administrative burden for the ACIC if the agency is allowed to charge a reasonable fee for each request to cover its cost it already collects individual information on felonies, misdemeanors, and pending criminal trials for which a verdict hasn't been determined. This information is displayed during any criminal background check. Traffic offenses and other violations are not disclosed. If more requests for criminal history create a burden for the ACIC, it can use the fee
it charges to employ more people and buy more terminals. It says, Roughly a third of the United States already makes criminal history available to the public upon request. Arkansas legislatures who believe that public information belongs to the public should add our state to the list. Such a policy would encourage healthy and competitive elections between qualified candidates rather than the embarrassing publicity and public humiliation that our current system of strategic last-minute disqualifications and unexpected convictions seems to encourage. With that said, I'll be ready to take any questions.
Speaker 164
41:23
I have Representative Dan Greenberg, who is here, who would be able to answer any legal questions that might come
up. MR. Thank you, Mr. Meeks. We've got a couple of
Speaker 164
41:35
questions before. MR. I'm sorry. Mr. Chair, can Representative Dan Greenberg make a brief
statement? MR. Former Representative Dan Greenberg, welcome to House Judiciary. We're happy to see you. You are
Dan Greenberg
Unverified
41:47
definitely welcome to make a few statements. MR. Well, my name is Dan Greenberg. I'm a citizen,
and I represent people here in Little Rock as an attorney, but not as
a representative, of course. I want to talk for just a moment about the problem that this bill addresses and suggest to you that there are other solutions that have been talked about by other people that I think will not work. If you look at the Constitution, the Constitution actually disqualifies several classes of people from serving in office. We all know that felons can't serve, and the Constitution says that there are certain crimes like embezzlement and bribery which prevent one from serving.
The Constitution also says that you can't serve if you've committed an infamous crime, and it's a little harder to figure out what an infamous crime is. There was an interesting 2010 case in which this fellow was convicted of stealing a few signs in the dead of night during a political campaign, and the court reasoned that that would disqualify him for life. If I understand the court's reasoning, the idea was that stealing signs in the dead of night seems to be dishonest, and the dishonesty there seems to be very
much like the dishonesty of embezzlement and bribery. And so because this fellow committed something that was dishonest, he's thereby forever disqualified from public service. Now, if sign stealing disqualifies you from holding office because it's dishonest, it seems like there might be other crimes which also might disqualify you as well. This is a somewhat puzzling opinion to understand and draw conclusions from. But I think that it's probably fair to say that it's difficult to craft a law that's
going to identify all the disqualifying crimes and leave alone all the non-disqualifying crimes and doesn't touch them. And of course, there is something to the idea that the public has a right to know about the criminal histories of those who wish to serve us. I don't know
Speaker 171
43:50
if that's a conclusive argument, but I certainly think it's a very strong
one. Thank you. Thank you, Mr. Greenberg. A couple of questions from the
Chair first. Actually I'm going to ask Brad Cossort from ACIC, I know he knows he's going to be drug
into this, to go ahead and take his seat at the table because
I'm sure other folks will have questions for him as well. Mr. Cossard, presently, does ACIC keep records of pending trials? Is that currently being kept? Mr. Chairman,
Speaker 174
44:28
it is. I mean, the records that we get, we get the initial
Speaker 175
44:32
arrest record from the state police, which consists of charges that were on the fingerprint card.
That comes into our system as a pending charge, and it sits there as a pending charge until we get disposition information in from the court. So we do have, you know, charges on people that have not been – had a final disposition. Hopefully those are very current and not years old, but, yeah, we do have those
Speaker 177
44:56
until the courts have resolved them. And you say hopefully. Is that not a priority for you all? No, no. It's a big priority, and occasionally we do come across
Speaker 175
45:06
some really old charges. For some reason, the courts never sent us a disposition on them.
Okay. But, no, the goal is that they're very current and that it's always been a priority and making sure that the courts are reporting to them as current. And they do that. It's just
Speaker 174
45:22
there have been some old, old ones, a handful that are not there. But we do maintain pending arrests, waiting on
final dispositions of courts. So in the situation, I'm not sure how familiar you are with the situation of, for example, Fred Smith, former
State Rep. Fred Smith. Would you have had that information in your records?
Speaker 175
45:46
that. Let me explain. A normal background check, when somebody goes to do a background check through the state police and they access our database, what gets returned on a background check are all felony and
misdemeanor convictions that have not been sealed or pardoned and pending felony arrests that are less than three years old. Okay. Mr.
Meeks or Mr. Greenberg, you talked about infamous crimes.
Since we can't define that, what that means, is it your position that just you want to get the information and make it public and let the public decide? Is that what you would suggest to do?
Speaker 161
46:31
Yeah, we just want to make the information public. Of course, there will be some things that are cut and dry that will come up that you don't have to worry about. But because the infamous crimes attorney, Dan Greenberg, has said, you know, there's not necessarily one thing that's going to hit on that.
It can go all over the place. But at least that information is out there for the public to see. And then, you know, of course, the judgment on anything like
that would have to be up to the courts. Okay,
we've got several folks here. Let's see. Tiffany Rogers, you're first, and followed by Mr. Walker. Thank you, Mr. Chair. I knew this bill had an air of familiarity from the 09 session. Several questions. You indicated that ACIC would be the one to perform these searches at the request of any private citizen.
Yes, ma'am. And how often would they be able to ask or make these requests for
Speaker 161
47:34
these searches to be done? Mr. Cazort, maybe they'll answer that better. I don't know that there's a limit on how many times they
Dan Greenberg
Unverified
47:44
can ask for it as long as they pay the fee. I mean, in talks with ACIC, what we tried to do was set a fee so that it would
either be cost neutral or that they'd be able to raise a little money. So I guess the answer is, you know,
as I mean, my assumption from a meeting with Mr. Cazort was as long as somebody wants to hand over
$30 every day, the ACIC is pretty happy to take it.
And that is what you said it at, $30?
Dan Greenberg
Unverified
48:11
Well, I think that actually the legislature, I should have said around $30. I think that the legislation specifies some amount that the ACIC within limits
can set. Currently, probation and parole officers have this capability in their offices for ACIC reports, and can a citizen, can a private citizen approach one of those groups and ask them to perform this type of search according to this bill?
Speaker 174
48:38
Representative, let me answer that question. Under current state law, I know that would be illegal, that Arkansas
Speaker 175
48:44
is a closed-record state. Only people who, by law, have access to our records. access to our records, and anybody else who attempts to obtain or does obtain our records who does not have statutory authorities could be guilty of a felony. So you cannot – a citizen cannot go to a police department and request a background check on somebody. But then it
would be permissible for them to come to your office and make this request.
Speaker 174
49:12
Well, actually, the way current background checks go, you actually make the application with the state police,
Speaker 175
49:17
and they enter that request in the system that electronically comes to us. Current background checks that are done are done that way and are done because somebody has given written authority to an employer to do a background check, or there's state legislation that mandates background checks for certain jobs, but that would be how they would do it now. I don't see this bill. They would still go to the state police under this bill as I read it to make that application,
And then that fee that's in there is a fee that is currently similar to what's charged for background checks, half of which goes to the state police to maintain the APHIS fingerprint system, and half of it goes to ACIC to maintain our criminal history database. So a citizen's just not going
to walk into the ACIC office and make this request? No. I mean, the only thing, you as
Speaker 175
50:04
a citizen can come to ACIC and get a copy of your own record, but you cannot get a copy of anybody else's. Then I'm at a
loss of what this is going to do.
Speaker 200
50:14
can you explain that a little further as
Speaker 175
50:22
I read its understand the bill this just gives a citizen the opportunity to through the process of the state police to obtain a criminal background record of candidates and elected officials but that's how I
read it in the case of the representative Smith because he was not actually found guilty would it have precluded him from even for running for office? Because, I mean, there was a charge pending, but there wasn't a guilt or innocent
status. So would it have prevented him from running had this information
Speaker 161
50:55
been? Representative Rogers, no, it would not have precluded him from running, but it at least would have let the public know that there was a possibility and that would have allowed them to make a better judgment, you know, potentially on whether they wanted
to vote for him or not. Okay. And I'd like to ask Mr. Cazort your opinion on this bill. Does ACIC support this legislation?
Speaker 175
51:17
Representative, I think we've looked at this as a policy question for you all to
decide, and we don't have an opinion
Representative John W. Walker
Unverified
51:29
one way or the other. Thank you, Mr. Chair. Thank you, Ms. Rogers. Mr.
Walker, you recognize? Thank you, Mr. Chairman. Mr. Meeks, you do recognize that the example of Fred Smith is inappropriate and factually incorrect, don't you? Mr. Smith had not been convicted, as you represented, as of the time that he ran.
He was not convicted even at the time that he resigned from the legislature. There was an advisory opinion from the circuit judge as to what his intended opinion was. Is that correct? MR. If I made
Speaker 205
52:07
the assumption that he had been convicted, I do apologize. That would have been there. But he was –
Representative John W. Walker
Unverified
52:14
he did have that case. MR. He had a case. Now, what you all are seeking to do, especially you, Mr. Greenberg, is
to extend the Freedom of Information Act to people who are seeking public office so that if they have criminal
information in any repository of the state, especially the ACIC, upon a proper freedom of information
request, that information would have to be provided, with the only exception being that they'd have to pay $30
or $25 for it. Respectfully, Representative, I wouldn't quite put it that
Dan Greenberg
Unverified
52:54
way. I suppose I might say that you have a somewhat similar process to a FOIA request as compared to this, but this
would not fall under the category of FOIA law. This is a different area of law. But it is true that the public would get more access under a pre-regulated procedure
Representative John W. Walker
Unverified
53:16
to certain types of criminal records. And that information is denied now by penalty of
denied and if it is provided directly or indirectly, there's a penalty of law attached to it. Well,
Dan Greenberg
Unverified
53:29
technically, I'm not sure if I'd say that that's true either because, of course,
as I believe Representative Meeks said, if you wanted to get this information, you know, anybody who wanted to get this information could spend, you know, days or weeks going around to all 75 or 76 county courthouses and getting it. It just seems odd that since the state collects it and since it is all public information, it seems to serve a public interest. That's my theory and understanding the bill. It seems to serve a public interest that this public information that is innately public ought to be reasonably accessible to people. MR. Well, what's wrong
Representative John W. Walker
Unverified
54:05
with it being part of freedom of information?
I mean, it seems like information that ought to be disseminated in the public domain anyway, don't
Dan Greenberg
Unverified
54:14
you think? Well, I suppose there are some pretty large questions about how the Freedom of Information Act works. It's my understanding with the Freedom of Information Act, anybody who's, say, a government employee who is holding on to government information kind of has a presumptive responsibility in some cases to hand it over. So that, you know, if I walk over to the quorum court and I say, let me see the agenda for next week's quorum court meeting, you know, the receptionist over there says, oh, let
me get that for you. way, generally, to respond to a FOIA request. I don't think it would quite work that way with this, because you have a pretty definite portal beyond which you can't go. So it's kind of different than a FOIA request
in some ways. And you've got to pay $20 off. Mr. Walker, are you concluded? Thank you. Mr. Shepard, you're next on the list.
Representative Matthew Shepherd
Unverified
55:11
Thank you, Madam Chairman. I have a few questions. The first
of my questions had been cleared up. I wanted to clarify that the District 54 situation was – there was no – there had been no conviction at the time, so I wanted to clear
that up. And secondly, as I read this, it would not apply to an
Speaker 161
55:38
official who is appointed. Is that correct? If you look in page number one, line 29, it does include agency director, but it just the agency head
Speaker 205
55:48
would not go to subordinates or managers or anything like that.
Representative Matthew Shepherd
Unverified
55:52
It would be just agency head. Okay, but aren't there certain situations where there is a vacancy in office, aren't
there certain situations where there are actually people appointed to fill those vacancies? MR.
Speaker 164
56:06
Right. And in line 31, it does include a person that's serving as an interim or acting agency head.
Representative Matthew Shepherd
Unverified
56:13
MR. But what about those who are serving, filling a term that is otherwise elected? MR. So
Speaker 216
56:24
your question involves someone who, for instance, a judge that's appointed
Representative Matthew Shepherd
Unverified
56:31
to fill a vacancy? Prosecutor? There's the list could go on and on. Actually,
Speaker 219
56:40
the way I look at it, it doesn't include that. I mean, I suppose what
Dan Greenberg
Unverified
56:44
do you suppose that class is of all elected officials? About 1 percent, I guess? I mean, I suppose that, you know, that's a very interesting drafting point. It does not include the 1 percent of people. And particularly, it doesn't include people who haven't filed a disclosure form. And I don't know what the rules are as to when you have to file a disclosure form once you're appointed,
because the disclosure form makes kind of triggers or is a necessary part of the request.
Representative Matthew Shepherd
Unverified
57:09
Right, but technically they would not be elected. Secondly, as I understand, this only applies to criminal information in the state of Arkansas. Do you have a concern that it might be somewhat unfair that information that is in the state of Arkansas might be provided while there might be others who have criminal histories outside the state?
Dan Greenberg
Unverified
57:33
Well, if that fairness is a problem, it's a problem in a lot of areas of law because the disqualification for elected officials to serve extends to Arkansas laws in several respects that doesn't extend to parts of other states.
Representative Matthew Shepherd
Unverified
57:48
Well, but as I understood, one of the purposes of this with regard to District 54 was to inform the electorate of information that may be out there that might have some bearing on their decision-making. And so to that degree, I think the fairness might be an issue.
Another question I have is with regard to a criminal matter in which the individual was found not guilty, would that be disclosed? Representative State, right now under current process and
Speaker 174
58:18
current law, a case that has been dismissed is not disclosed on a background check. The only thing that
Speaker 175
58:24
is disclosed are felony and misdemeanor convictions that have not been sealed or pardoned and pending felony arrests that are less than three years old. What about a case that has been nulprost?
Again, that would not be disclosed. And then. And if I could answer your question about information outside the state of Arkansas, the only way you can access information outside the state is to going through NCIC. And under federal law, that can only be done if the legislature passes a specific act mandating fingerprint-based background checks, which you've done for 30-some-odd occupations. But if the legislature passes a bill that mandates a federal background check based on fingerprints for candidates in this example,
then that would allow, with a fingerprint, access into the national and other state records. But absent a law like that, the only thing that you can access would be just the
Speaker 225
59:29
state records. What about violations? ACIC does not keep violations. And
Representative Matthew Shepherd
Unverified
59:33
then could you give me some information? Outside of law enforcement,
who does ACIC provide information to on request? Basically, any criminal justice agency, and that can
Speaker 175
59:46
either be a law enforcement, a police officer, a sheriff's office.
It could be prosecutor's offices, the Department of Corrections, Department of Community Corrections, the courts. I think the state hospital also has authority. You all have passed a bill this time designating, I think, the two training academies as law enforcement agencies. That will allow them access, but essentially criminal justice agencies are
Representative Matthew Shepherd
Unverified
1:00:14
the only ones who have access. What about the general public? They do not.
What about employers? They do not. So this would be the first time that we have given ACIC authority to provide criminal history information to private parties.
Speaker 174
1:00:31
Private parties can obtain it now by state law through a background check request, but it has to be
Speaker 175
1:00:36
with the written consent of the employee who signs a document saying, I've given you permission to check my background, and they take that to the state police
Representative Matthew Shepherd
Unverified
1:00:45
and do that. Does that apply to all situations? If I sign a consent that someone can check my background, regardless of whether I'm applying for employment or otherwise, that private party can provide that to you and you will provide it
on request? If they have a signed written consent notarized from you, yes.
Now, this information is to be provided under this bill. This is not everything that ACIC has in its system with
regard to an individual. I mean, if you could access information related to those charges that had been dismissed, correct? We have
Speaker 177
1:01:17
that information of charges that have been dismissed or
Speaker 175
1:01:20
sealed or pardoned. That's still in our database, but it's electronically sequestered and is not released on a background check and would not be released. If this were to pass, it would not
Representative Matthew Shepherd
Unverified
1:01:30
be released pursuant to this check either. Is it difficult for ACIC to narrowly tailor the information that's been requested?
And I guess what I'm thinking of is there's another bill that we passed out of committee with regard to improper disclosure of information by ACIC. I mean, is this a burden on ACIC to provide this information that does not encompass everything that's in your system. No, I mean, it's
Speaker 175
1:02:00
set up electronically to do that, and that's how it returns now. I mean, again, the request now initiates with the state police who electronically taps into our database.
We return that information to the state police, and they return the information to the requestor or the requesting employer, and it's done electronically and only comes back with the information that I told you and does not provide the information that is not authorized to be released. Okay. Thank you. Representative Hammer.
Representative Kim Hammer
Unverified
1:02:34
Thank you, Madam Chair. Most of the questions I was going to ask have been answered, so just one question. And refresh my memory. When we or anyone decides that they want to run for office on the form that we have to fill out,
Is there or is there not a place on there to acknowledge whether or not you've been convicted of a felony or any crime? Is that not
Dan Greenberg
Unverified
1:02:59
on the form? That's a very interesting point. I believe on the political practices pledge, you have to say that you haven't been committed to a felony, but it actually doesn't go beyond that to misdemeanors. And that illustrates, I think, one of the problems we have in this Fort Smith case or wherever it was. it's not clear that the, you know, the average person who's not a lawyer really has a great
deal of notice as to what's disqualifying and what isn't.
Representative Kim Hammer
Unverified
1:03:25
Okay. Would you refresh my memory again also? So a misdemeanor disqualifies you from running for public office or does not disqualify you, or is that a judgment call? Well, I guess
Dan Greenberg
Unverified
1:03:34
I would say that there are some misdemeanors that clearly disqualify you from running for office. There are some misdemeanors that don't seem to, under current law, there's some misdemeanors that don't seem to disqualify you, such as, I think, for instance, there's no evidence for the theory that, you know, getting into a bar fight or something like that would disqualify you. And apparently sign-stealing and certain other misdemeanors that involve
certain kinds of dishonesty as of 2000 by the idea of the Supreme Court now disqualify you. So there is some uncertainty as to what misdemeanors would disqualify you. One
Representative Kim Hammer
Unverified
1:04:05
last question, please, Madam Chair. So regarding the record background check, state list misdemeanors all misdemeanors and all felonies if uh... if this report was to be pulled it would show all misdemeanor convictions the standard background check
Speaker 175
1:04:19
that's returned is all misdemeanor and felony convictions that have not been sealed or pardoned if they've been sealed or pardoned they do
not return and then again felony pending felony arrests that are less than three years
Representative John T. Vines
Unverified
1:04:38
old All right. Thank you, gentlemen. Representative Vines. Just a couple questions, gentlemen. I notice in reading the language the limit on felony or felony charges, I guess, goes three years, but there's no cutoff point for misdemeanors. So will I have – well, or would someone have to explain why they were illegally parked behind the Kyle House
Dan Greenberg
Unverified
1:04:58
in 1995? MR. I think, and Representative Cazort might correct me on this, I think the idea
is that convictions have one period, which is that convictions stay there. But if you're talking about pending charges, pending felony charges, that's the three-year limit. But misdemeanors and convictions that have been resolved against the defendant's favor, if I read
Speaker 234
1:05:16
this right, are in the same category. MR. If I might respond. MR. So am I
Representative John T. Vines
Unverified
1:05:26
to understand you're going to cut misdemeanors at three years also?
Speaker 175
1:05:31
Let me explain. Under our current process, pending misdemeanors are not released on a background check.
Okay. Only pending felonies that are less than three years old. One more
Speaker 100
1:05:39
question, if I may, Madam Chairman. Is there any, and
Representative John T. Vines
Unverified
1:05:44
I don't see it in here, is there any notification whatsoever given when these requests are made to either the candidate or the elected official? So there's no, I guess the concern would be then is these can be requested every day and you would never know if they've been requested or not. You know, this
Speaker 216
1:06:01
sort of goes back to the whole idea of, you know, what I was talking about before.
Dan Greenberg
Unverified
1:06:06
This information is public. You can go to the courthouse and get it. And, you know, the courthouse doesn't, as I understand it, as a matter of policy, courthouses don't tell people if somebody's looking back into
public records. So, no, there's no notification when someone looks at a public record in that way. Representative Wright. Madam Chair, Mr. Vines, got me.
Representative Jeremy Gillam
Unverified
1:06:37
Representative Gillum. Thank you, Madam Chair. Just kind of a question of clarification here, following up on Representative Shepard's question. Right now, with written
consent, a candidate's background check could be performed. Right now. Yeah, I think under current
Speaker 175
1:06:58
law, if a candidate would provide written authorization for somebody to check their criminal record, that could be done just like an employee situation where they provided their employer with written authorization to do that.
Representative Jeremy Gillam
Unverified
1:07:12
Okay. Thank you for that answer. And then just kind of another point of clarification, if I might, Madam Chairman, this would or
Speaker 253
1:07:21
would not include school board elections. Yeah, if you look at page 3,
Speaker 204
1:07:32
person elected to a municipal county or state or as a member of a school district board. Thank you. I
Representative Jeremy Gillam
Unverified
1:07:39
just was looking on the wrong page. I appreciate it.
Speaker 255
1:07:42
No further questions. Representative Steele. Thank you, Madam Chairman.
Representative Nate Steel
Unverified
1:07:51
This is for either one of you all. I assume that the reason this is all-encompassing and covers all records going back indefinitely is because the law is not clear on what misdemeanors or felonies disqualify you from office. Is that correct? That
Speaker 161
1:08:04
is correct. In District 83's case, I believe that was like 15 or 20 years ago that he had that. So that's why there was, you know, that's why there was no distinction there.
Representative Nate Steel
Unverified
1:08:14
If the law were, if it were more clear which laws disqualified you from office, which, I'm sorry, which misdemeanors and felonies disqualified you, you know, if we had a laundry list of crimes of dishonesty, like we do in, say, in some rules of evidence, and maybe a laundry list of misdemeanors that would disqualify you, then wouldn't it maybe be a better bill if we defined which laws disqualified you and released only those offenses so that if a candidate had a DWI in college 40 years ago, as we saw in the presidential campaign
in, when was that, 19, when George W. Bush first ran, last minute DWI revelation from college almost cost him the election. Would this not be a better bill if we defined which laws, which offenses disqualified you and
released only those offenses rather than everything in your history. Yes, I would agree with you on
Speaker 161
1:09:06
that. The problem that I understand it, and representative, or I mean, excuse me, attorney, that Dan Greenberg might be able to do this, there is no clear definition of infamous crimes. That's kind of where you get into the gray area is that there's no specifics on the infamous
crimes. So, you know, if somebody wanted to make a case that whatever you did wrong was an infamous crime and a judge agreed, then that would disqualify them from office. Is the question, if
Speaker 261
1:09:32
we lived in a hypothetical world where we
Dan Greenberg
Unverified
1:09:34
knew which laws were disqualifying and we knew which laws weren't from public office, would this bill be better if it just named those laws?
Representative Nate Steel
Unverified
1:09:43
Is that the question? Well, I would submit that the legislature can define what an infamous crime is. So why could we not just set forth a laundry list of crimes that disqualify you from office and then release only those offenses?
Dan Greenberg
Unverified
1:09:55
Well, pretty clearly, we've gone past the point where the legislature can define infamous crimes this session. I would want to think about the question of whether the legislature can define those kinds of vague words in the Constitution. I don't have an answer off the top of my head. That's a pretty tough question of constitutional interpretation, obviously. But I do think, you know, I'll just give you my personal opinion. There is something to the argument that the public is entitled to know about the criminal records of those who would serve the public. Like I said, I don't know if that's a conclusive argument, but I think a lot of people are going to say it's a pretty strong argument.
And there's also something to the idea that maybe it's better to have all this stuff out at the point of filing rather than have it be released on the weekend before the election, which seems to happen with some regularity. And I think that's a fairly large problem because that gets into this terrible and very unpleasant area of election strategy by people that we don't think very well of. very well of. So there's something to the idea that disclosure of criminal records by people who would like to service serves good social purposes.
Representative Nate Steel
Unverified
1:10:59
You're not concerned that a candidate might be prejudiced from an offense that happened many, many years ago that has nothing to do with service in
Dan Greenberg
Unverified
1:11:08
office? My own opinion is that we would have a much better society if we had a more realistic idea and full disclosure of what the criminal justice system means. If we were able to talk about this stuff honestly and we really understood the scope of how prosecution works and the scope of what types of people have criminal offenses, in a lot of ways I think it'd be a more honest and a more open and a better society.
Speaker 234
1:11:30
So I think we'd have probably a better way to judge these things if we had full information
Representative Nate Steel
Unverified
1:11:36
on everyone. One more question, if I might. So just to be clear, you said a while ago that we're too late in the session to have a bill that does what I'm proposing.
Is that the reason that you would be opposed to that idea, or is it because, as you said, you just think it's better public policy to disclose all
Speaker 266
1:11:52
offenses? MR. I mean, this is more like a law school class than a committee meeting. But I mean, I'll just say
Dan Greenberg
Unverified
1:11:58
I'd want to think a little more about the legislative authority
to define infamous crimes before I answer that question. Because to my mind, that really is an open question.
Representative Kim Hammer
Unverified
1:12:10
MR. Fair enough. Thank you. Thank you, Madam Chair. MS. Representative Hamer. I believe Representative Steele asked it, but I was going to ask you about the possibility if you I thought that was in order of what you're trying to attend on this to amend it, to add a list of that, and I don't know you guys are the lawyers, if that's possible or not. I guess you have to decide if you wanted to try to do that or not. Thank you. If I could.
Speaker 161
1:12:30
You know, that may be something that we might do as an interim study in the meantime and get groups of lawyers or whoever together just
Speaker 164
1:12:36
to see if there's some way we can narrow that down or whether it would be a good idea, and I
would definitely be in favor of that. Any other questions from the committee? I think we've got
one person signed up from the audience that wishes to speak against the bill. Ms. Stallings. Okay.
Just go ahead and go to the end and identify yourself,
Speaker 272
1:13:18
please. I'm Deedee Sallings with the Arkansas Public
Speaker 274
1:13:22
Defender Commission. I'm David Raup with the Attorney General's Office. Thank you, Madam Chair. I think I'm signed up. The Attorney General opposes this bill for the same reasons he did in 2009 when Representative
Greenberg offered HB 1051 as amended, and I'll just briefly reiterate those because this is the same version, the same proposed change to ACIC's release of criminal history information. Arkansas is a closed record state, and the criminal history information collected by ACIC, not in the courthouses, but collected by ACIC is confidential and provided for use only by criminal justice agencies for the protection of the privacy of the subject of
the information and the unlawful disclosure of that information is a Class D felony. Thus the dissemination to purposes other, to persons and entities other than criminal justice agencies has always been narrowly circumscribed by this body as a policy matter. So that even non-conviction information like arrests as proposed in this bill is even more narrowly circumscribed. But this bill, as 1051 did in 2009, changes that entirely for
elected officials, candidates for elected office, and agency heads. It amends the very otherwise narrowly tailored statute to permit unlimited requests for background checks on all elected officials, candidates for elected office, and agency heads without limit to number of frequency. So the bill converts Arkansas to an open record state as to a particular class of persons, and the Attorney General believes that the legitimate policy debate about whether we
should be an open record state should not be one done on a piecemeal basis by classes and categories of persons like elected officials, but instead the legitimate concerns about those persons who might be unfit for office should be addressed by other measures to satisfy their fitness for candidacy, such as the political practices pledge. If
Speaker 272
1:15:36
I may, I would join the Attorney General's office in their position on that and also add,
as an agency head, one of my concerns is the repetitive nature. We could get these requests on a daily basis from sort of in a harassing position, and I'll note that the bill has a $25 fee. The bill does not say who pays that fee. Is it the agency's responsibility? Is it the requester's responsibility? At the present time, the Public Defender Commission pays a $25 fee for every ACIC request that we make,
And I have limited those requests substantially because of the cost, and I can see that this could be very cost prohibitive if it's the agency that has to pay it because, you know, repetitive requests from the same person or a bunch of people could prove to be very costly. Those are my concerns along with Mr. Routes. Are you willing to take questions? Certainly. Representative Hamer.
I just want to state by saying anybody in
Representative Kim Hammer
Unverified
1:16:44
this room can run a background check on me, and I don't care.
I just want to get that off the table. If I sign a political practice pledge and I say, no, I have not been convicted of a felony or no, I have not been convicted of a misdemeanor, and I lie, and it comes out later, whether through the media or through any other avenue that I have lied, Can I be convicted or charged with
Speaker 272
1:17:17
perjury? Yes, you can, because you swear under oath that you've not been convicted,
so that would be perjury, Class D felony. So
Representative Kim Hammer
Unverified
1:17:24
if somebody did have either one of those against them charges, then that could be grounds for perjury. Yes, sir. Thank you. Any other questions from the committee? Thank you for your
testimony. Thank you. Is there anyone else from the audience that would like to speak for or against this bill? Any other questions
from the committee? Representative Meeks, would you like to close for your bill?
Speaker 161
1:17:59
Thank you, Madam Chair. Committee, I'm not going to take too long. I mean, we've already gone back and forth, but let me say, this bill is about transparency. I believe that the people have a right to know about their elected officials. I believe that by doing this, we open up our government a little bit more to the people and allow them to make the best decision as far as candidates and their elected officials is concerned. I don't think that asking them to pay the $25 fee is too much to ask because they are
using the system. It makes it easier for them to use the system. I hear the concerns that were made by the attorney general's office and the public defender. And I think as far as an exception being made, I think our, you know, being an elected official or an agency head or an actual candidate, I don't think that's too much to ask. And so I'm asking that this committee would vote for transparency and would vote for more open government by passing my bill out of
Speaker 204
1:18:58
committee. Thank you. Members, what's the pleasure of the committee?
Representative Shepard? I move do pass. All in favor? Aye. Opposed? Chair cannot discern and is requesting a roll call. Madam Chair, do we still have a quorum?
Speaker 71
1:20:11
Barely. Thank you. Representative Baker. Representative Baker. Representative Powers. Representative Powers. Representative Rice.
Representative Nicolls. Representative Nichols, Representative Slinkard, Representative Slinkard, Representative Steele, Representative Wright, Representative Vines, Representative Shepard,
Representative Deffenbaugh, Representative Hammer, Representative Eubanks, Representative Branscombe, Representative Ratliff, Representative
Speaker 72
1:21:12
Gillum, Representative Walker, Representative walker represented
Speaker 71
1:21:26
with excuse me Wilkins representative Wilkins prison
Williams representative Williams By a vote of
nine yeas and two nays, you have failed to pass the bill. Thank you.
Representative Rice are you ready to run the Senate bills yes just a point of order representative
Representative John T. Vines
Unverified
1:22:29
Alton's brought back an amendment to 1723 could we take care of that just adopt it and we can to the bill I think we do this point of order can we not we
Speaker 246
1:22:39
need him back well he had indicated he would do it in the
Speaker 300
1:23:14
intent he brought an amendment asked me to
Speaker 302
1:23:20
ask for it to be adopted he needs to be here to do so okay okay thank you we'll proceed representative rice Thank you.
Representative Marshall Wright
Unverified
1:25:12
Representative Rice, are you ready to
present your bill? Madam Chair, Senate Bill 637, please, we'll let Senator Vines get on back if we can do that
one first. I have an amendment for Senate Bill 637. I would move adoption.
All in favor of adoption of amendments to 637, say aye. Aye. Anyone opposed? You've
adopted the amendment. You can proceed. Please identify yourself.
Speaker 309
1:26:01
Senator Drake Files. Thank you, Madam Chair. Senate Bill 637 was brought to me by a constituent who was concerned about the priority of restitutions being paid in certain crimes.
The amendment deals with the constitutionality of the priority. But basically, the short explanation is someone steals a four-wheeler and a trailer from Representative Deffenbaugh. They catch the person and pound the vehicle, and then the proceeds of the sale will go as a priority in law to restitution to the victim first, as opposed to a court order, and I'd be happy to take any questions. I'm also not a
Speaker 310
1:26:39
lawyer, but I have a lot of friends that are, as Mr. Alta says.
Representative Gary Deffenbaugh
Unverified
1:26:47
Are there any questions by the committee? Representative Deffenbaugh. Well, I just want to ask you a question. You're saying this is, I'm just trying to make sure I understand it. In the past, restitution hadn't necessarily been paid to the victim first. Is that what would... Correct, not necessarily. So this bill would make sure that it does?
Yes, sir. Thanks. Any other questions from the committee? is there anyone in the audience that would like to speak for or against this bill what's the pleasure of the committee we have to pass by representative branscom all in favor aye anyone opposed
Representative Marshall Wright
Unverified
1:27:41
you've passed your bill thank you representative rise are you ready to do 636 then as well
yes madam chair i'd like to invite
Gary Isom to the table, please.
There's an amendment on this as well that
should have been handed out to you. I think that's what she's done now. Madam Chair, I'd go ahead and, as soon as the committee has time, look at that move that amendment be accepted. It self-explanatory, takes out a line that stated it would be required
or could be required to come to Pulaski County
Representative Marshall Wright
Unverified
1:28:34
Circuit Court. Representative Rice moves do pass on the amendment for Senate Bill 636. All in favor? Aye. Anyone opposed? You can proceed. Representative Rice. Thank you,
Madam Chair. Committee, Senate Bill 636, again entitled Act to Clarify the Civil Jurisdiction Penalties in Scope for Real Estate Licensing Law to
Make Technical Corrections in Other Purposes. 1959 Court Decisions result from the Attorney General opinion that in some situations where a business is ongoing, Real Estate Commission might not have jurisdiction over the unlicensed person who sells a business even if the real estate is included. No other state has such an exemption. The AG and Arkansas Real Estate Commission would appreciate statutory clarification and note that consumers lose access to the recovery fund protections when doing business with
unlicensed persons. And five bordering states have jurisdiction to take action against an unlicensed person conducting real estate brokerages and others do too, that is currently the jurisdiction only of prosecuting attorneys in Arkansas, which hasn't proven very effective. This problem addresses out-of-state unlicensed commercial brokers and auctioneers coming into Arkansas, also revoked licensees continuing to practice, seminar activities on high-pressure
timeshares, resale activities, which I think we've all heard of, and reports of unlicensed persons conducting real estate business activities. And again, note that recovery fund protection is not available to consumers who do business with unlicensed persons. And then if you'd like to look through the bill, I'll be happy to run through and line pages one and three are basically just clean up and revision. On page 4, lines 3 through 7 address businesses that include real estate.
Also on page 4, lines 15 through 18 defines unlicensed activity. Also line page 4, starting lines 26 through 36, and page 5, lines 1 through 16 is mostly, again, cleanup and revision. and then on page 6, lines 26 through 36, and then through page 7, lines 1 through 4, is the new jurisdiction of the Arkansas Real Estate Commission over unlicensed persons
through Administrative Procedures Acts. Madam Chair and Committee, the only section that I had, and I appreciate their working with me, and I don't think it was any heartburn for anybody, was the fact that this can currently be tried in the home county and some, maybe the drafting, they wanted to bring it, have the option to bring it to Pulaski County Court. And, again, you can see that's been taken out. And with that, I'd like Madam Chair, if you'll recognize Gary Isom.
Speaker 324
1:31:49
Gary Isom, Director of the Real Estate Commission. Representative Rice has covered the bill quite thoroughly. and I'll be glad to entertain any questions that you may have. Thank you. Any questions from the
committee? Representative Steele. Thank you, Madam Chair.
Representative Nate Steel
Unverified
1:32:06
I'm looking on page 5, line 13. It looks like the goal of this is to kind of put the enforcement in the hands of the Real Estate Commission as opposed to local prosecutors, as you mentioned.
um with that goal in mind why was uh line 13 that section c not stricken from the bill and the amendment i know that's that's it's already in the law i understand that but since this since this bill amends the previous law to put the enforcement in the hands of the real estate commission why do we why do we leave the criminal offense and and clarify it as a
Speaker 324
1:32:45
class b felony there yes sir that's uh the attorneys who prepared this uh had two attorneys one from the ag's office
and one who represents the realtors association uh left that in i can't give you an exact reason however i will say that uh in my 24 years with real estate commission we have We have hardly ever utilized the prosecuting attorneys in this situation in pursuing these, and that's why we are giving ourselves, hopefully, the Real Estate Commission, the jurisdiction over these unlicensed individuals.
Specifically as to why the attorneys chose to leave that in there, I cannot speak specifically to that. But one thing that I was concerned about and the attorney general advised me on was being able to ensure that we have jurisdiction over the out-of-state people, that we can reach those people, and maybe it has something to do with
Speaker 255
1:33:51
that. Okay. Thank you. I noticed this, that class on
Representative Nate Steel
Unverified
1:33:56
line 16, page 5, section D, that's an amendment to the bill,
so we're setting forth what kind of felony this is, a class D felony. Do you know previously, without that there, what this was? Was it classified? No, sir. That was
Speaker 324
1:34:10
already in there in, let's see, the rewrite. I'm going to have to look at the marked-out language, but the class D felony is currently in the law. Okay, so this was just part of the reorganization? Yes,
Representative Nate Steel
Unverified
1:34:21
sir. Thank you. Thank you, Madam Chair. Any other questions from the committee?
Anyone in the audience that is here to speak for or against this bill?
Representative Marshall Wright
Unverified
1:34:43
Representative Wright, you're recognized. Do pass. Everyone in favor of a do pass on House or Senate Bill 636 indicate aye. We are closed. Excuse me. Thank you. Anyone opposed? You've passed your bill, Representative Rice. Thank you.
We're going to go a little bit out of order again. Representative Hammer, you will be next up
Speaker 291
1:35:27
with House Bill 1917. Thank you, Madam Chair.
Representative Kim Hammer
Unverified
1:35:43
May I introduce my guests at this time, ma'am?
John Depippa
Unverified
1:35:45
Please do. My name is John DePippa. I'm the dean of the UALR William H. Bowen School of Law. You're recognized
to proceed. Thank you, ma'am. I believe there is
Representative Kim Hammer
Unverified
1:35:57
an amendment that is being passed around or
should be, and also a handout for the members of the committee. The handout has been
distributed, but the amendment has not. We're in the process of doing so. Thank you, ma'am.
Thank you. First we need to take up the amendment first after you've had an opportunity to look at
Representative Jeremy Gillam
Unverified
1:36:55
that. Representative Gillum. I make a motion to add
the amendment. There's a motion on the table to add amendment to House Bill 1917. All in favor indicate aye.
Aye. Anyone opposed? The amendment's been adopted. Please proceed. Thank you, Madam Chair. For the
Representative Kim Hammer
Unverified
1:37:30
members of the committee, there is a handout that's been distributed to you. Part of that handout has some of the most frequently asked questions associated with the content of this bill. On one side of the handout, you'll see that it's entitled at the top, the Religious Freedom Restoration Act, House Bill 1917. I'd like to go through and just quickly read that so that it will put us all on the same page as far as what this bill is intended to do.
And then with the permission of the chair, I'd like to give Mr. DePippa the microphone to let him speak to it, and he will be happy to field any questions from the chair or from the committee. Is that all right, ma'am? Yes, sir. Thank you. In summary, the Religious Freedom Restoration Act, otherwise referred to as RFRA, affirms the traditional interpretation of the free exercise of religion under the United States Constitution, Arkansas Constitution. It provides legal recourse for individuals whose religious freedoms are infringed and prescribed penalties for filing previous and fraudulent lawsuits.
The Religious Freedom Restoration Act reaffirms that individuals have all the religious liberties identified in the U.S. Constitution and the Arkansas Constitution. Under a 1990 U.S. Supreme Court ruling, the legal emphasis of free exercise of religion changed from the act of doing something, for example, going to church, to believing something, for example, believing in God. This was a major shift in the way our country treats religious expression because it relegates religion to a mental exercise instead of including physical activities as well.
Prior to 1990, the government passed a law that interfered with a person's free exercise of the religion, and the government had to, one, present the compelling government interests served by the law, and two, demonstrate that it restricted the exercise of religion in the least intrusive manner possible. The United States Supreme Court changed those requirements in 1990. However, individual states may restore the definition of free exercise of religion for their citizens, and that is exactly what this Restoration Act is intended to do for the citizens of Arkansas.
It states that individuals have the right to practice religion without being burdened by the government. It mandates that no government can burden the exercise of religion without proving that doing so is essential to the further of compelling government interest and the least restrictive means of furthering the compelling government interest. If a person's exercise of religion is burdened by the government, they may file a lawsuit. The court may award the person any relief and financial reimbursement deemed necessary to make up for the offense.
If a person files a frivolous or fraudulent lawsuit, they may be liable for the government's court costs and may be prohibited from filing similar lawsuits in the future without the court's permission. Similar bills, such as what you have before you today, have been passed in Tennessee in 2009, Texas in 2005, and Oklahoma and Missouri passed this form of Restoration Act in 2010, but it did not include civil penalties. And you have the documentation for each of those statements at the bottom of the page.
And at this time, I'd like to turn the microphone over to Mr. DePippa, Dean of UAL Law School, to address this matter. Madam
Speaker 339
1:40:54
Chair and members of the committee, thank you for giving me the opportunity to speak today. I was contacted by Jerry Cox about this bill and he asked about my thoughts on it and those of you who know us know that Jerry and I disagree on almost everything except two items. We both have four children whom we love deeply and we both believe in the importance of religious
liberty. So I'm happy to speak today about this. I want to first add just a few comments about the chronology and then speak very concisely about why I believe this is an important bill. After the 1990 Supreme Court decision, the United States Congress passed the original Religious Freedom Restoration Act, which purported to reinstate the Compelling Interest Standard. That act was struck down five years later by the United States Supreme Court because it exceeded the power of Congress, since the act applied to every agency of government
at every level. responded by passing the Religious Land Use and Institutionalized Persons Act, which applies this standard to land use decisions and prisons. That is the state of the law, at least the federal law as it stands now, and there are states who have passed their own version of the Religious Freedom Restoration Act. I support the bill for three primary reasons. First, I believe that the statement and the standard in the Religious Freedom Restoration
Act is consistent with the Framer's intent about religious liberty. Second, I believe that our experience before 1990 and post-1990 with the Religious Land Use and Institutionalized Persons Act shows that this standard strikes the right balance between government action and religious liberty. And third, that the primary beneficiaries of this law will be small and minority religious groups who are most likely to be burdened and least likely
to have the political power to seek exemptions. First, why is it consistent with the intent of the framers? I believe the framers created a robust protection of religious liberty that in my view both prevented government from interfering with or establishing religion, but also established a very strong protection of religious exercise. that the framers intended religion to be left to the individual, free from government coercion or inhibition. The compelling interest standard, as in the pre-1990 law and in the Religious Freedom
Act, I believe is more consistent with that strong protection of religious practice and belief than the current standard. Second, the experience pre-1990 and post-century 2002 shows that courts have taken common-sense approaches to these rules and have not hamstrung government agencies with unduly burdensome requirements. It's important to note that there are still parts of the original Religious Freedom Restoration Act that apply to parts of the federal government, primarily in bankruptcy
proceedings. Nevertheless, the court opinions seem to reflect a very common sense notion of the role of government and the role of private belief and strike an appropriate balance and in the right cases have upheld government action and in the right cases have prevented it from interfering with religious practice. Finally, the benefits that flow from this law would go to groups who are most likely to be burdened inadvertently by rules. It's easy for us to understand the effect that something will have
on beliefs and practices with which we are familiar. But it is almost an unavoidable blind spot when we don't understand or appreciate or even recognize other religious practices. Those groups most often are the groups who are not able to come to you and seek legislated exemptions because they don't possess broad political power. One example that I use in my class relates to fire safety laws. Catholics the night before Easter have a part of our service
where we hold candles in an unlit church. I believe that that probably violates most fire codes to have a couple hundred candles burning. And yet, I suspect if the fire marshal ever tried to shut down an Easter vigil service, the Catholic Church would be able to get a legislative exemption for that. I am not confident that minority and small religious groups could do the same. And a law like this, then, prevents such a thing from happening. In the end, the most important piece of this bill is not necessarily the lawsuit, but rather
the sensitization that it will bring to government actors who would finally recognize, I believe, the effect their actions have on religious liberty. Thank you very much. Thank you, Dean. Mr. Hammer, are you finished your
presentation? At this point, yes, sir, and we'll be glad to take
Speaker 336
1:45:48
questions. Members, any questions? I see Mr. Steele
for a question. Thank you, Mr. Chairman. I just
Representative Nate Steel
Unverified
1:45:57
have one brief question. I think there's a lot of good stuff in this bill.
My concern is this. We passed a bill earlier this session prohibiting certain protests at military funerals. And I know that it was a delicate balance trying to find a way to make that bill constitutional and within the confines of the First Amendment. Can you tell me if this would in any way enable, and I know my understanding is those are generally religious groups from out of state that come down and protest military funerals, would this in any way hamper our efforts to cut back on those protests?
Speaker 339
1:46:32
That's a good question. I don't believe it would because the definition of burden requires an inhibition or a denial of some benefit, and the law under the funeral protest allows the protests to go on under certain neutral conditions. I don't think this bill interferes with that law. In fact, there are provisions of this bill which say that it wouldn't interfere with other provisions of law. Secondly, I don't believe that the protest itself would necessarily qualify as a religious practice. And there are some states who have dealt with similar issues involving violations of sign ordinances.
Tennessee, for example, that actually said that the sign ordinance would trump the ability of the religious group to post their message. Satisfied my
Speaker 138
1:47:16
concerns, thank you Thank you, Mr. Chair Mr.
Representative John W. Walker
Unverified
1:47:22
Walker, you recognized for a question? Thank you, Mr. Chairman, I have several Is this the entire act or is it modifying some existing law as well?
Representative Kim Hammer
Unverified
1:47:41
I believe this is the entire act and it would be noted if
it was in underlining or other methods that were custom. I believe this
Representative John W. Walker
Unverified
1:47:52
is the entire act, sir. That leads to the question on page 2. You set out what the subchapter does not do. Is there anything which sets out what
Speaker 345
1:48:08
the subchapter does do? Are you referring to line 7? Lines 5
Representative John W. Walker
Unverified
1:48:13
but it carries through Lines 15 but it says what it does not do and I'm trying to understand what it does, I mean you have in the first part a set of definitions but it does not set out what you're authorizing and you're telling us what it does not authorize and that's sort of unusual for a
Speaker 339
1:48:40
bill as I understand it. What does it authorize? Representative Walker, I believe what it authorizes is essentially requiring that government actors follow a certain standard before they interfere with religious practice.
So it's a standard-setting bill, not necessarily an authorization. And that's why, again, following the Federal Religious Freedom Restoration Act, it's a directive both to government actors and to courts as to the proper
Representative John W. Walker
Unverified
1:49:06
standard of review for government action. Well, how do you get to the point of frivolous actions being circumscribed by various processes, including an award of fees, if there is no authority in here that allows a person to
Speaker 339
1:49:23
bring a private action? I believe the bill does allow individuals
Representative John W. Walker
Unverified
1:49:32
to bring a private action. Is that section, page 2, beginning with lines 18 through 27? I believe
Speaker 339
1:49:40
that the private action is authorized on the third page under line 17, remedies and penalties. The third
Speaker 349
1:49:47
page? All right, that's page 3, all right.
Representative John W. Walker
Unverified
1:49:54
So that a person who feels burdened can file a lawsuit against a government agency. to have those burdens removed that that's
Speaker 339
1:50:06
right except that burden is specifically defined in a way that narrows it not just to feeling burdened but actually being burdened and I think it's important to note that this is the bottom first page lines 35 goes on to specifically defined burden as including withholding benefits assessing penalties
and exclusion from programs, and I believe that that narrows the focus of burden to those things that truly and actively interfere with religious practice, not necessarily interfere with the subjective sense
Representative John W. Walker
Unverified
1:50:41
of burden. And that's my final question, with Mr. Chair's permission. How does
this act affect the Arkansas Civil
Speaker 339
1:50:54
Rights Act? I couldn't give you an authoritative opinion, but my sense is that it supplements but does
not replace. So there are independent remedies under the Arkansas Civil Rights Act. This is a more specific act aimed specifically and entirely at government action and in stating the standard of review to apply to actions that burden religious practice.
Representative John W. Walker
Unverified
1:51:20
Well, I said last one, does this mean that if
a person has a particular religious belief and works for the state, he can utilize, he or she can utilize this action upon adverse action by the state to remedy that situation?
Speaker 339
1:51:39
Assuming that, in fact, there was adverse action and assuming that that action could be justified by the compelling interest standard,
Speaker 348
1:51:47
the answer is yes. In essence, the say would have to justify their action by coming up to that compelling interest standard. Thank you. Thank you,
Representative John W. Walker
Unverified
1:51:58
Mr. Chairman. I'm happy to see Representative Hemmer present a civil rights bill. Any
Speaker 121
1:52:04
additional question, members? Seeing no questions, I have
a couple of questions from the chair, and I apologize.
I missed part of the presentation, so if I'm being redundant, I apologize. Mr. Hammer, you have the DFA's physical impact or legislative impact statement.
a copy of that? I do. Let me ask you to respond to some of their concerns outlined in this. What's the response to the claim by DFA, for example, that this bill, if passed, might subject the state to lawsuits for folks whose religious beliefs would prevent them from wanting to have a driver's license
or give their Social Security number or even get a Social Security number?
Representative Kim Hammer
Unverified
1:52:54
What's your response to that? May I repeat the question back to you and make sure I understand what you're
asking? Absolutely. Are you asking what's going to be the state's financial
liability in the event this becomes litigation and how is the cost covered? Well, I guess I'm asking, do you think your bill, if passed, would allow someone to tell the state that, no, I'm not going to get a driver's license because it's against my religion or to say, yes, I'm going to smoke this marijuana because it is a proponent
or it's part of my worship. That's really what I'm asking. I'm going
Representative Kim Hammer
Unverified
1:53:29
to make a response, but I'd like to give Mr. DePippa the opportunity to correct me in the event I'm wrong on my facts, if that's right, with the chair. I'm going to say right now that that would be covered probably under the frivolous aspect of what this law is intended to do. And I would like to state that when I did get the financial impact yesterday and in talking to the ones who had provided the financial impact,
that there is sufficient funds to cover so that it would not be an additional financial burden to the state. And I think it would be fair to say that anybody can bring a lawsuit at any time. Burden proof is one thing. And actually, I think that this addresses that issue that a person repeatedly brings back a frivolous lawsuit, that they can actually have to incur some of the costs to help that be deterred from happening. I'll give Mr. DePippa the mic to add anything or correct me if he would.
Speaker 339
1:54:27
That's essentially correct, and it's also important to notice to recognize that even if this is a burden, the state definitely has a compelling interest to require people to have a driver's license, and having a driver's license is a narrowly tailored, least restrictive method to accomplish that goal. We're not writing in a blank slate. Other states prior to 1990 had the same sorts of challenges
regarding driver's licenses and were successful in beating them back. Well, Dean or Representative Hammer, you define burdens as direct or indirect.
That seems to make it pretty expansive as I read it. That seems to give me a cause for some concern because indirect burden might be very light burden. Representative
Speaker 339
1:55:19
Williams, the indirect burden language is necessary to restore this to the prior test. And I believe it's not necessarily the indirect word that matters, but rather the way that burden is defined further in that sentence.
So it's not simply an inconvenience. It is rather something that, as you see, involves some tangible impact on the person. And the indirect burden is necessary because it's something like disparate impact analysis. It removes the requirement of an intentional action but looks to see the impact
of somebody's action on religious liberty. Well, wouldn't that language have been better language to choose? I'm familiar with disparate impact analysis and how a facially neutral statute may unconsciously
burden someone. Why not use language as opposed to direct or indirect? Why not use intentional or
Speaker 339
1:56:17
unintentional? In the history of free exercise law, direct and indirect burdens are actually the language
Speaker 348
1:56:22
that the court has used, so this is more consistent with the pattern of
Speaker 365
1:56:27
decisions. Okay. I'm going to yield to Representative Radley for a question. Representative Hammer, I
Speaker 29
1:56:36
was looking in this DFA deal that they've done, and it says here that there's a deal here where you can't kill any animals in the city limits other than
for human consumption. You know, we've got a bad problem with armadillos up in my part of the world. Are they hard shell, or? Well, you know, we do them on a half shell sometimes, but not all the time. And, yeah, but I don't, you know, that could be a problem. You know, we've got skunks and
Speaker 368
1:57:04
all that kind of stuff, and, you know, we don't like those things, and this bill stops that. going to be
Representative Kim Hammer
Unverified
1:57:15
a problem for cities do you want me to respond to that sir okay would you point that
out on the bill because it's on the
Speaker 368
1:57:21
it's on the study here at the bottom of page
Speaker 29
1:57:25
three and top page for furthermore hospital 19 setting with prohibit limitations on animals within killing of animals when the city limits for human consumption such as rituals rituals but I'm just saying you know that that's that's problem looks like to me may I
Representative Kim Hammer
Unverified
1:57:46
ask a little bit of endurance from the chair because this was handed to me this
morning I requested on November I'm sure I understand they were not sure take your time thank you your time we're all trying to process it here together Thank you for the patience of the committee and the chair. We are ready to give a response. Go right ahead. Thank you.
Speaker 339
1:58:22
Over on page four in that analysis, it refers to a United States Supreme Court case. The background of the case is that the city of Hialeah tried to draft a law that was intentionally aimed at a particular religious practice. And so they banned the slaughter of animals but then had so many exemptions that it only applied to one religion. And the court in that case said a proper law, a law that said, for example, it was seeking some public health purpose, would satisfy the compelling interest standard. The issue, though, in this Santeria case was that the city was aiming at a religion, and that was its problem.
Mr. Ratliff, are you done with your questions? Members, any additional questions? Seeing
none, we're going to go to the audience. We have, I think, Rita Sklaris signed up to speak. Okay. Speak on the bill. Rita, go right ahead. Please state your name. Well, I'm trying to find what she said here.
I can't find it. I just know she wants to speak. I don't know
Speaker 379
1:59:39
what she signed up for. I apologize. Yes. My name is Rita Sklar. My name is Rita Sklar. I'm executive director of the ACLU of Arkansas. Thank you, Mr. Chair. Good morning. Good morning, members of the committee. Thank you for allowing me the opportunity to embarrass myself by going up against these great legal minds here, Dean DePippa and John Walker, but I'm going to do my best.
Jerry Cox came to us with the hopes that
Speaker 381
2:00:04
we would support this bill, and we, of course, one of the chief aims of the
Speaker 379
2:00:10
ACLU is support religious liberty and promote religious liberty and the protection. Ms. Sklar, before we let you go, let me
ask you. You've got your laptop. We don't really take testimony by electronic means. I'm not sure. Is that just your paper? Some notes, you're not wired, you're not receiving any signal. No, I wish, but I'm not. That's just like a piece of paper that you wrote up.
That's my saving paper, yes. All right,
Speaker 379
2:00:37
I wanted to make sure that you, all right, go right here. Sure. So we were presented with a draft of the bill, and it's true that we didn't have an opportunity to get back to it as quickly as we'd like. I know it's not your bill, sir. But we presented amendments and said that we would be glad to support it with these amendments because, of course, we have more concerns than just religious liberty.
We are concerned about civil rights as well, like Mr. Walker mentioned, and are concerned about the possibility of sanctioned discrimination taking place. So we suggested that
Speaker 381
2:01:22
in front of burden, substantial be added, that the standard of burden be changed to substantial
Speaker 379
2:01:33
burden. And we also asked that the main points really being that there being an insertion in,
And I don't know what page it is, but where it talks about construction and applicability. John, help me if you can. Page three. Yes. Again, we would end substantially burden. And line seven, affect, interpret, limit, we would add, or in any way address those portions, et cetera, of the Constitution, the First Amendment that prohibit laws respecting the establishment of religion. And then we wanted to add, and this is the civil rights aspect, or state and federal laws that prohibit discrimination on the basis of race, national origin, gender, sexual orientation, marital status, and religion.
The idea being that,
Speaker 381
2:02:34
yes, we defend religious liberty. It is one of our chief goals as an organization. But should an entity be
Speaker 379
2:02:47
able to fire a woman because she became pregnant while unmarried, for instance? and we don't think that that should be sanctioned by the by
Speaker 381
2:03:06
the Arkansas legislature that's that's
about it thank you miss Sklar you take
questions if he's easy on me well mr. Gilliam is first he's got a question for you and
Representative Jeremy Gillam
Unverified
2:03:19
then Walker hopefully mine will be easy it's basically a yes or no question so are you in fact here today to speak against this bill
Speaker 381
2:03:26
we are against it as written we would be for it as amended as we propose to be amended thank you
Representative John W. Walker
Unverified
2:03:35
mr chairman mr walker you recognize miss clark doesn't this actually go further than you really wanted to and in a sense
because when you authorize a government entity when you use the language authorize a government entity to burden a religious belief, you're taking a lower standard. It's almost any burden that doesn't say a
Speaker 381
2:03:58
substantial burden. Right. And our amendment
Representative John W. Walker
Unverified
2:04:01
is substantial. But doesn't this, in effect, keep a religious belief from being burdened by the
state pure and simple? It doesn't have to be a great or substantial burden.
Speaker 379
2:04:15
And our concern is that unless there's a higher standard, it would be too easy to do things like discriminate under this law without showing it was a substantial
Speaker 381
2:04:28
burden. That's the bottom line. Well, this is one I respectfully disagree with you on, on all the points
Representative John W. Walker
Unverified
2:04:33
you make. Okay. Thank you. Thank you. Members, any additional questions? Thank you, Ms. Clark.
Does anyone else in the audience want to speak for or against House Bill 1917? I don't think I have any more on the list. Anyone else signed up to speak for or against House Bill 1917? Seeing none, Representative Hammer, you're recognized to close for your bill. I'm sorry, Mr. Hammer. Mr. Deffenbaugh, did you have a question? Okay. We're about to get
there. Representative Hammer, you're recognized to close for your bill.
Representative Kim Hammer
Unverified
2:05:15
Thank you, Mr. Chairman. Thank you, committee. I think that, and I just want to introduce something. I know that sometimes we as legislators are asked to bring bills on behalf of other people, and that's a good part of the process, and that's what I think we are partly here to do. But I want to speak to the personal level of this. I do not know if you know or not, but I have 27 years of pastoral experience in three different churches, and currently I'm a chaplain for hospice. So I've been around, quote, religion for quite a bit. My intent and the reason that I want my name to be on this is because I want to afford
each individual in the United States of America the greatest opportunity, even those that may go against my grain and may go against my belief system, I want to afford them equal opportunity. And in reality, the decision that's made around this table is part of the process, but there's a greater process, and that's the responsibility of each person out there. I'm going to speak to my personal situation and not speak on behalf of any other organization or religion, and that is for me as an individual to advance what I believe through the actions
that motivate me partly for what I believe. And I believe that this bill gives us greater latitude and gives all individuals that greater latitude to do so as they see led and of mind to do so. And with that, I would just say I would appreciate a good vote and that we can take this out
to the floor, and I'd appreciate a good vote at this time.
Thank you. Thank you, Mr. Hammer. Mr. Deffenbaugh, you recognize? It's a proper motion. Any question or discussion? The motion before the committee is due pass on House Bill 1917 as amended.
There was amended, correct? Amendment, correct? As amended. Is that correct, Mr. Deffenbaugh? All in favor of passing House Bill 1917 as amended. indicate by saying aye. Opposed, no. Congratulations, Mr. Hammer. You have
passed your bill. Members, we're going to... Mr. Chair, may I please, and
Representative Kim Hammer
Unverified
2:07:18
if I'm out of order, I know you will, so feel free. I have a judge who has come to speak to a bill. I would just like to request that before we dismiss today, if we could get that bill brought on the table at the time that
the chair sees fit that we could get that done. Okay. Mr. Wilkins was slated to be one of the The first one is on the agenda. He's waited patiently. Let's get him taken care of here in a minute. Members, while we're taking a break here, we've got a number of folks who say they want to be – who want to present bills and who come in and out. We were not necessarily prepared to work late, but we have ordered lunch. So after Mr. Wilkins, if it's okay, we'll take a short lunch break, Mr. Steele, Mr. Edwards, and then we'll be right back here.
Would the committee prefer that we come back after adjournment? We usually work through lunch. I wasn't prepared today, but they did go in and order lunch. I'm looking for some direction from the committee. Would you prefer to keep working, or it looks like I want
to keep working? All right. We'll keep working. Mr. Wilkins? What bill are you running, Mr. Wilkins? 1759, Mr. Chair. Members, we're on House Bill 1759.
Representative Butch Wilkins
Unverified
2:08:34
Mr. Wilkins, you're recognized for House Bill 1759. 1759 is actually a very simple bill.
It enhances penalties for crimes committed against certain persons. The bill lists the people. They are law enforcement officers, ambulance drivers, physicians, correctional workers who are subject to, and a lot of times, large, hostile crowds or who are family disputes. You know, I spent a long time in law enforcement, but actually have very little experience in this, in large crowd control.
But I have two guys with me today that do, and I would like for them
Scott Baxter
Unverified
2:09:25
to introduce themselves. Go ahead, gentlemen. Thank you, Mr. Chair, member of the committee. My name
Speaker 390
2:09:30
is Scott Baxter. I'm a lieutenant with the Jonesboro Police Department. I'm here today to represent the Arkansas Municipal Police Association. The AMPA has been in existence since 1936 and represents municipal police officers from all across the state, small departments and large, and it represents a wide variety within those agencies,
from chief to patrolmen and all ranks in between. I am a chair of the legislative committee of AMPA. It's our largest committee. It has 12 members, and like the organization itself, it's well represented by a wide range of officers, from chief patrolmen and those in between, and from small departments to large departments. So when our members bring an issue to us, it's looked at from a wide variety of perspectives. When we try to look at is the issue real or is it an isolated incident, is it confined
to a localized area or is it larger in scope, is it already covered in statute somewhere that may just need some tweaking or clarification, and things like that. This issue was brought to the committee by one of my fellow officers in Jonesboro, and And it created a lot of discussion among members from all across the state, and
Scott Baxter
Unverified
2:10:49
many echoed the same sentiments. We're having a lot of issues with an increase of assaults on police officers.
And while we included in the bill certain persons that goes beyond law enforcement officers, that's mainly because in statute
Speaker 390
2:11:04
we already have enhanced penalties for battery on an officer if you if you actually carry out the the harm and do injury to an officer in battery that's been expanded on over the years by various legislators to include other persons such as firefighters medical personnel teachers i believe maybe even included in that and some various
divisions of those certain persons and we
Scott Baxter
Unverified
2:11:34
just copied those from the battery statute over to the assault statutes what we the issue basically was that while there are
Speaker 390
2:11:43
enhanced penalties if you hurt these certain persons and cause them injury there's nothing for trying to hurt them and I'll give you an example that from my perspective in Jonesboro we had an officer that two officers actually get out to contact a suspected drug dealer on the corner this is at nighttime this
And this person actually has marijuana in their pocket, it's sticking out of their shirt pocket. When they go to arrest him, he runs. While they're giving chase, he turns with a .357 Magnum toward the officers as he's running. And fortunately, at the exact same time, clotheslines himself on a guide wire to a pole. And, of course, the weapon falls free of his hands, and they're able to apprehend him without an injury. He was charged with assault. There's no enhanced penalties for that.
He was given, in that particular incident, 42 months. He served six months and was released. We had another incident where a lady officer was attempting to make an arrest at a disturbance fight call, and we had a college football player get her in a headlock and pound her repeatedly with his fist to her face. This lady officer is I'd guesstimate 5'4", 120 pounds with her vest maybe on a rainy day.
She has long blonde hair that is normally kept in a ponytail or a bun. I think this particular night it was in a bun. And this guy says he didn't realize it was an officer that he was hitting, and he sure didn't realize it was a female. He reluctantly later admits that he didn't know it was an officer, but he still contends he didn't know it was a female. That's been two and a half years ago, and it's still yet to be resolved. The prosecutors want to reduce it because the injuries weren't permanent. Why her injuries were significant, they weren't permanent.
She had two black eyes. Her entire face was swollen. Her nose was broke to a point that it had to be surgically repaired. And they're wanting, let's say again, they're wanting to reduce it. And I don't know, I don't really know the why of that. I know there's a lot of things that affect the prosecutor's decisions, including I know they're overwhelmed and the jail system's overwhelmed, but there's some things that are just worth pursuing, and there's some things that are worth enhanced penalties.
When these certain persons are placed out there on behalf of society and given great responsibility that society expects us to carry out, and I think as a general rule, part of the reason this has carried on so long and hasn't been reduced is because the citizens have come to our aid and backed us once they found out what the problem was. And I think the citizens have our back in this. I don't have statistics on assault. I wasn't able to find that. I did find a research bulletin on the National Law Enforcement Officers Memorial website
that basically indicates the same trend that's going on nationwide. Of course, it's on fatalities rather than assaults. but law enforcement fatalities spiked dangerously in 2010 is the heading, and it speaks of a 40% increase last year over the previous year. The stats they had through March the 16th of this year, over the same period through March 16th of last year, we've already increased beyond that 40%, another 10%. Of course, that's, again, officer fatalities.
But these assaults is a step toward that direction, and it shows the overall problem that we're having with these becoming so frequent, and we're noticing it in law enforcement, and it's showing to be true on that end of it. I can tell you recently, just within the last few months, we've had as many as seven officers on injured duty at the same time. Injured duty or light duty is not something we're required to give, but we try and afford them that opportunity if they want to come to work
and just can't work the regular job. It's basically a desk job. or a filing job or something like that. And it's to the point that we were having trouble finding them something to do. This is a genuine problem. It's real, and these sentiments are echoed from Hot Springs and Texarkana to Fort Smith to Cersei and Plynebough and Jonesboro are all indicating the same issues. And I thank you for your time. Thank you for your testimony, Representative Wilkins.
Speaker 391
2:16:19
Do you have further testimony? No, not this time. We'll take questions. Okay.
Representative John W. Walker
Unverified
2:16:27
Members, there are questions. Representative Walker. Now, I
guess you really want to have people who commit crimes serve as much time as possible. So, therefore, you
enhance penalties. Is that right? Yes, sir. That's fine. Now,
that means that when you have them serve as much time as possible, you're going to have them spending more time in the penitentiary.
That's possible. I see. And since we've just passed this bill yesterday with respect to crime and punishment,
isn't it important for us before we vote
on this bill to know what the impact is going to be financially? I mean, I see that you have some impact data, and it talks about the number of people who would be affected, and I think that that's conservatively stated.
But by your numbers, it's several hundred additional people. Would you agree? MR. That's possible. I see. MR. Several hundred additional people being incarcerated. Let's see, and you enhance the penalty, and that's at least a one-year enhancement, isn't it? Could be five. Not necessarily.
Scott Baxter
Unverified
2:17:50
Each assault charge has a current classification. What we're asking is that it be up one degree. Well, I
Representative John W. Walker
Unverified
2:17:57
understand, but let's assume it's up one degree at the top.
That's at least one year, and it could be as many as five years. Isn't that correct? I suppose so. All right, so that means we can take 200-plus individuals and we can just average that, say, two-and-a-half years, so that's 500 years, and that at $22,000 a year per person would have an impact for in excess of a million dollars, wouldn't it? It has that potential.
All right. In fact, it could have the potential for as much as $10 million. All right. Now the other concerns that I have regarding this bill, I mean, of course, you say you're trying to
transfer this from battery to assault. How do we get for assault a medical person involved here? I mean, I think when you include in this situation a person who's semi-conscious and who's relating
to a doctor, and that person may accidentally hit the
doctor in the mouth and hurt that doctor, I mean, and the doctor may not like it, and he
Speaker 390
2:19:14
can charge him with a crime. No, I think that would lead
Representative John W. Walker
Unverified
2:19:17
more to the intent. Well, but at least the person can be charged. I mean, it depends on what the person wants. And then a kid who's 12 years of age or younger or an individual over 60, I mean, how do you pull all these things in when you're talking about aggravated assault against
people i'm trying to understand what you accomplish by just throwing everything into the pot it's like a smorgasbord what do you accomplish by doing
Speaker 390
2:19:49
that basically the the intent of including all those persons was because previous legislatures have already said they should be included under the battery statutes and we basically just
Scott Baxter
Unverified
2:19:59
included them here to save that argument that has already been established.
Representative John W. Walker
Unverified
2:20:04
Isn't third-degree battery one, a third-degree assault,
Scott Baxter
Unverified
2:20:07
one that does not require a
Representative John W. Walker
Unverified
2:20:14
touching? Yes, sir. That's like a class B misdemeanor, I believe. Oh, I understand. Well, third-degree, all right. But you're upping it one if a person just uses words against one of the people in your protected class. Isn't that correct? Yes. So if a person who's in a medically compromised situation or in some stress situation or who's perhaps emotionally or mentally challenged uses profanity to a police person
or to a fireman or another person, that person can be charged
with an enhanced penalty, with an enhanced defense? I think, again, it would go
Scott Baxter
Unverified
2:20:52
to their intent and the circumstances around it. Well,
Representative John W. Walker
Unverified
2:20:55
I understand, but he can be charged. Now, the burden of proof is one of intent you're saying, but they
can be charged by affidavit from you or someone else or by a warrant being issued by a magistrate. Isn't that correct?
Representative John W. Walker
Unverified
2:21:14
be done that. But on assault for no touching? Yes, that can already be done. Well, I'm trying to understand what is it that makes this necessary? I mean, is there a body of evidence out here, empirical evidence, that causes the concerns that you raise to rise to a level of great public concern, something that can be quantified?
Representative Butch Wilkins
Unverified
2:21:42
Let me tell you, Representative Walker, my take on that. Police officers, medical personnel who are on the scene, even in an automobile accident, can be seriously injured. And the intent, if you read aggravated assault, a person commits aggravated assault If under circumstances manifesting extreme indifference to the value of life, human life, or he or she purposely engages in contact, it creates a substantial danger of death and serious physical injury to another person.
Now, my experience is limited. I have been at family disputes as an officer when I
was very concerned about the other people in the room and said they choose to take offense against you, and they often do. You can put an officer, you know, if they throw a bottle or a knife or point a gun at me, then they have assaulted me if I'm on the scene of my official duty as a law enforcement officer
or as an ambulance driver, as a medical person that has to come to assistance with them people. And I think that's where this law intends to go or where this assault intent intends to go. Representative Walker,
are you, Willem? Okay. Representative Gillen, you're next. Thank you, Mr. Chair.
Representative Jeremy Gillam
Unverified
2:23:25
Just a quick question. Earlier, my good friend here, Representative Walker, ran through some mathematical equations and came up with a figure on the dollar amount and everything. I'm curious if that math could have been done so easy, why the impact statement says it cannot be determined at this time? It just seems to me that the Sentencing Commission has run through these numbers and they can't determine it, So I'm just curious maybe if you
might discuss that or if you may shed some light.
Scott Baxter
Unverified
2:24:02
Thank you. I'd speculate for someone else, but I would suspect that it's because none of this will
Speaker 390
2:24:09
take away a prosecutor's ability to plea anything. I mean, if they still have the ability to plead a probation, extended probation, extended, extended probation, and when I say that, while it's laughable, it's not as a joke that's serious that happens, and it has happened to us.
Suspended in positions of sentences. When they do actually get time, you know, I gave you an example of the 42 months with good time in the county jail waiting on a bed at state prison, that turns into six months. And that's if they don't get an emergency release, fall under one of those emergency releases that often occur because of the overcrowding. And I suspect that's why they have a hard time putting a number on it because the prosecutors still have that ability and latitude to plead a probation
or suspended sentences or lighter sentences. Thank
Representative Jeremy Gillam
Unverified
2:25:06
you, sir. Mr. Chair, I have a motion
Speaker 392
2:25:18
thank you. Representative Deffenbaugh. Okay, any other members
Representative Nate Steel
Unverified
2:25:25
have questions? Representative Steele. Thank you, Mr. Chair. To your point about the impact, my understanding is any violent crime,
any violent crime and this would this would classify assault would classify as a violent crime would not uh give a defendant an opportunity to go to boot camp so if we created a class c felony violent crime you mentioned something about about probation a lot of times those those uh crimes that are 10 years or less uh that call for 10 years or less as a class c felony would for other crimes like delivery of certain controlled substances and things like that are diverted to boot camp. So they don't really have an impact, a significant impact on
ADC population. But I would be interested to hear from maybe somebody from ADC, or is there any concern that maybe since this would be a class C felony that would be classified as a violent crime, that it might actually have a substantial impact because of the inability to go through some other
program? Anybody? Has that been a consideration? No,
Scott Baxter
Unverified
2:26:27
sir. I don't know the answer to your question. The two that are felonies, though, as Representative Wilkins pointed out,
is circumstances manifesting extreme indifference to human life, to the value of human life, and substantial danger of death or
Speaker 390
2:26:43
serious physical injury. Those are the two felonies. I think I support this bill. I just
Representative Nate Steel
Unverified
2:26:48
kind of wanted to point out that I could understand, somebody mentioned something about probation, I could understand the concern for impact on
ADC. Generally speaking, you're talking about examples like you mentioned a while ago where a firearm is aimed at an officer
or something like that. Is that correct? Yes. Okay. Thank you. Thank you, Mr. Chair.
Speaker 408
2:27:08
Okay, members, any other questions? If not, are there
any, anybody who will speak for this bill? I have Representative Rosenzweig who I am going
Speaker 409
2:27:31
to speak against. Jeff Rosentoy, Arkansas Association of Criminal Defense Lawyers. I want to point out a couple problems with this bill. First, aggravated assault is already a felony, subject to six years in prison, or more if
it's an habitual offender. So it's already a felony. Secondly, because it's an assault as opposed to a battery, that means no injury or serious physical injury has occurred. These cases come up most oftentimes of stress as family disputes, emotional issues. People may be drunk, may, you know, do things that they wouldn't do if they were sober. They're upset. No injury has occurred.
And I want to also point out they're wanting to make assault first degree a felony for some instances, and in assault first degree is when you recklessly engage in conduct that creates a substantial risk. So you're making a felony reckless conduct, not purposeful, not even knowing, and where no injury has occurred. I have no idea how many people this will be affected by because assault first degree is
a fairly common charge in cases involving, you know, family disputes, people get upset, someone takes a swing and misses, that type of thing. So you're going to end up felonizing a bunch of people that there's been an agreement for many years since the adoption of the criminal code but not a felony, and I think it's
a dangerous bill for those reasons. Thank you, Mr. Rosenzweig. Representative Wilkins.
Speaker 392
2:29:20
Are there any questions for Mr. Rosenzweig? If not, Representative Wilkins, are you ready closed
Representative Butch Wilkins
Unverified
2:29:40
for you bill uh yes sir mr chair i
Speaker 24
2:29:46
think i i think i am closed members on uh house bill 1759
are there any other comments from members if not those in favor boys saying excuse me Sorry, I need a motion. I've got to do pass a motion, Representative Steele. Thank you. All those in favor, say aye. Aye. All those opposed, no. Rule of aye as a habit.
Mr. Wilkins, you'd pass your bill. Thank you, Mr. Chair. Thank you, committee. Y'all want to grab your sandwiches and come back to the table, and if you want to, we'll work on through and get some stuff on through here. We were temporarily recessed.
Unknown speaker
2:31:05
Well, I'm going to cut you off.
Thank you.
Unknown speaker
2:33:05
It's not nice to have somebody with you.
Speaker 436
2:39:07
thank you you can well i might after i get
you pass out my amendment judy
Speaker 24
2:42:05
Please take your seats, members. We're going to go a little out of order. Representative Valtis was here previously. Representative Valtis is going to allow you to
make your motion. Thank you, Mr. Chair. Members, remember a few minutes ago you gave me a due pass on my 1723. A couple of members wanted me to make an amendment, so I've run really hard and worked really hard and got this amendment back to you guys
and so I would appreciate you going along with me on this the motion, I mean the amendment is in front of you all it does is more clearly defines purpose or adds purpose to the two added paragraphs in the bill this meets the requirements of Representative Vines and there was another member I think that wanted this put in there Williams okay so I need a motion to expunge the vote
Speaker 463
2:43:08
by which members we're gonna need a
motion expunge to get started have reps in
Speaker 13
2:43:15
the payment and mr. chair make a motion to expunge a vote please proper motion all those
in favor motion to expunge on House Bill 1723 say aye those opposed go ahead okay
like I was saying the motion I mean that the amendment all it does is add purpose in two paragraphs which is what represented Vines and representative Williams wanted
I appreciate you adopting them up
Speaker 463
2:43:47
at the amendment members Calvary and representative Walker motion move passes men and proper motion
this be to adopt the amendment that
Speaker 13
2:44:04
your motion President Walker, turn your microphone on, if
Representative John W. Walker
Unverified
2:44:20
Pardon? All right. The motion is to pass Mr. Alta's bill as amended. Okay. As he's already explained earlier. We
Speaker 13
2:44:30
have to adopt the amendment first. We expunge the vote. Oh, I'm sorry. Need to adopt the amendment. i have a motion you adopt the amendment so moved okay remember we have a motion you adopt the amendment all in favor say
Representative John W. Walker
Unverified
2:44:48
aye aye opposed now now i move that we uh pass
uh his uh his most uh his
his bill as amended okay this is a motion represent walker to pass hb 723 as amended All those in favor say aye. Opposed? Thank you, Mr. Chair. Representative Alvarez, you've got the deal done. Thank you. Okay, next we have Representative Steele. House Bill 2198. Representative Steele, you are recognized.
Representative Tracy Steele
Unverified
2:45:20
Thank you, Mr. Chairman and committee. I also have with me Mr. Eric Treat,
Speaker 484
2:45:26
who is the president of a very fine organization, Arkansas People First, who deals and helps individuals with disabilities. House Bill 2198 simply, a short bill, simply does one thing. It requires law enforcement officers to have training in dealing with those individuals with disabilities. At the rest, interview, and we work with law enforcement and the academy who does the training
is on board. They're just going to make this a part of their existing training program and their
Speaker 408
2:46:07
curriculum. Thank you. Any further information? Any questions from the committee? Representative Gillum. Thank you, Mr. Chair. I'd just
Representative Jeremy Gillam
Unverified
2:46:14
like to make a motion at the appropriate
time. Okay. Representative Wright, next. Okay. Representative, any other questions? Representative Guilherme, your motion. I move to do pass. Okay. Do pass, committee.
Speaker 408
2:46:28
Proper motion. Are there any comment from the audits? Far? Anyone who will speak against?
If not, committee, will the committee, all those in favor say aye. Aye. Opposed? You pass your bill. Mr. Steele, we thank you for your
patience. Thank you, committee. Thank you. Okay, committee, I'm now
Speaker 24
2:46:54
asking for House Bill 2169, Representative Hammer. Is
Speaker 336
2:46:59
Representative Mayberry going to run that?
Yes, sir. I was going to run it for Mr. Mayberry, but he is. Representative Mayberry, if
you will come to the table, please, sir. We have some handouts on
Speaker 24
2:47:31
HB 2169 being passed out now. Members in audience and those here to testify, we appreciate your patience this morning,
Chair
Unverified
2:47:38
this afternoon. Representative Mayberry, you are recognized. Thank you,
Representative Andy Mayberry
Unverified
2:48:05
Mr. Chair. We began presenting this bill the other day, and we had quite a bit of testimony.
We've got some of the same members who are some of the same guests back with us today and also a couple of additions. With your permission, sir, I'd like to have each of the guests here introduce themselves. Please
Speaker 495
2:48:32
go ahead. I'm Circuit Judge Robert Hurstville from Saline County, the 22nd Judicial
Speaker 496
2:48:38
District. I'm Ken Cassidy, the 22nd Judicial District Prosecuting Attorney.
Speaker 497
2:48:43
Dave Raup from the Attorney General's
Speaker 230
2:48:47
Office. Larry Jagley, Perry and Pulaski County, 6th Judicial District.
Speaker 331
2:48:52
Okay. You will proceed, Mr. Baybear. This,
Representative Andy Mayberry
Unverified
2:48:55
again, is an act regarding the collection of the full bail bond premium and to affirmatively clarify that the financing of a bail bond is prohibited. And as I mentioned, we had quite a bit of testimony the other day. I'm actually going to turn this over to Ken Cassidy to kind of refresh our memory on where we were with that
Speaker 498
2:49:17
and to offer any additional testimony he might wish. Thank you, members of the committee.
Speaker 496
2:49:27
The first thing I would like to do is allow Deputy Attorney General David Raup to state exactly what the law is on this issue. in the view of the Attorney General's Office in the view of what's called credit
Speaker 497
2:49:43
bonding. Thank you, Mr. Chairman and members. The Attorney General's Office has litigated
Speaker 500
2:49:48
the question of the current law as the current statute that this bill makes an amendment to. And the Attorney General has litigated both in federal court and state court and in advising the Bail Bond Board that credit bonding is prohibited by the statute. And so we're neither speaking for or against the bill, but to clear up what we understood to be confusion about what the current state of law is.
And from our standpoint, the law does prohibit credit bonding, and we've litigated that, as I say, both in state court and federal court, and we advise our agency counsel advises the board of that view as well
Speaker 496
2:50:36
so very simply members of the committee the law as is says to bond to write a professional bail bond for a defendant to bond out of jail professional bail bondsman must take ten percent of
premium now the Attorney General says what just states what the law is which is clearly what the law is. They have to take 10%. You have an industry, members of the industry, the bond industry, that will come up and say, well, credit bonding is legal because we do it all the time, but that's not the face of the law and it's not the Attorney General's opinion. This results in several different things that impact the judicial
system. The first and foremost, one of the most important things is that it subverts the will of the judiciary, and I would like one of my circuit judges, Judge Robert Hurstfield, to talk about how the act of credit bonding subverts the will of the judiciary. Go ahead, Judge. Judge Arnold
Speaker 495
2:51:40
spoke to this briefly the other day, and it's my understanding, and I'm not going to go over it in too much depth. I will be available, obviously, to answer any questions, But when we set bonds, as a circuit judge, I set bonds often.
Most often it's set by our district court judge, Mike Robinson, in Benton. But we consider a list of factors. We consider their ties to the community. First of all, we're obligated by law to determine whether or not they even have to have a bond. And the preference in the law is that they not. If they have sufficient ties to the community, if they're likely to show up for court, and also we have to take into consideration, obviously, the seriousness of the crime. But if we can avoid setting a bond at all, that's the law. We're supposed to do that. And then you back in and see what is the most reasonable or least amount of bond that you can order
in order to ensure that somebody is going to show up to court and what is their obligation and the accountability on that person and then potentially on the bail bondsman to do so. And it can't go without saying I had always thought that, you know, the 10 percent, which is in the law, is what happened. And that goes back to my private practice. Before I was elected, I was a city attorney, was active in defending cases as well, and then I was elected prosecutor and was a prosecuting attorney for years before I ever conceived of the notion that the law,
as it clearly states, which is 10%, didn't really mean 10%. And so it's, I would be shocked if there weren't many judges out there who don't know really what's going on because there's no accountability for enforcing this part of the law. And as far as when we set a bond, if we can't count on knowing that the person who's bonding out is paying the 10%, then And it makes the calculation as to what is a fair bond, frankly, impossible.
And I think that to enforce the law, you need accountability, and therefore the bill that Representative Mayberry is putting forward puts in accountability to make sure that the law is clear. It's clear for judges to know when they're setting a bond that if you set a million-dollar bond for, say, somebody who's accused of first-degree murder and rape and whatever else, that somebody's not going to get out of jail on $100 with a promise to pay the other $99,900 to their
bondsman at some point, and also taking into consideration that there's rebates and other types of gimmicks are prohibited specifically by the law that goes to the previous legislative of intent as to why you have to have 10 percent. It gives the arrested person, the accused, a stake personally in showing up. And if they have no real stake, if the amount of money they're paying is minimal, then there's a real problem in determining whether or not they're going to come back to court.
And, again, I'll be very willing to answer more questions. I do want to say one thing. I've got a copy of the, I guess, projected fiscal impact that somebody has presented, I guess, from the bail bond folks. And taking into consideration what I just said as far as what the law is, what I believe the law to be, and have actually interpreted the law to be 10 percent up front from the accused or through the accused, and Mr. Raup just said that, the fact that their income statement says that passing this law,
which has accountability for the law as is, would reduce bonds by 40% means that right now there's at least 40% of the bonds that are not complying with the law as is. And that's astonishing to me, scary to me. And that probably is because, although the law I believe is clear and the Attorney General's office believes it's clear, my understanding is the bail bond board and other folks, and maybe even some judges, don't believe that's what the law is. And so, if nothing else, to bring clarity to what the law is, to make sure that it's fair for defendants, fair for a bail bondsman who may be competing in a race to the bottom against somebody else who's not taking as much premium, that's not fair for them at all, for folks who are trying to follow what the law is, to be competing against someone who has a different interpretation of the law because it's not clear enough.
So I think that's really important to point out. And, again, I'll be available for questions,
Speaker 496
2:56:16
but I'm sure the other folks have lots to say. Thank you. Also, the practice itself leads to predatory actions against defendants. Oftentimes, when someone credit bonds out of jail, and they could use that money to pay a private defense attorney or whatever they wanted to do with it, oftentimes when someone credit bonds out of jail, what a bondsman does, the practice, is sign an agreement for this person to pay a payment plan.
And the moment this person doesn't pay the payment plan, they jerk this person off the street with no warrant, no other law enforcement authority, and put him in jail because they haven't paid the payment plan on the credit bond that was illegal in the first place. The law very clearly, another part of the bond law that is current, disallows discounted bonding, which is just another word for credit bonding, except discount bonding, they admittedly don't take the full premium.
Agenda
Call to Order
HB1869
HB1723
HB1785
HB1982
SB637
SB636
HB1917
HB1759
Break
HB2096
HB2198
HB2169
Documents
No documents posted.
Speakers
Representative Darrin Williams Chair
Unverified
Speaker 9
Speaker 10
Speaker 13
Representative David "Bubba" Powers
Unverified
Representative Terry Rice Chair
Unverified
Speaker 29
Speaker 39
Representative Jon S. Eubanks
Unverified
Speaker 54
Representative David L. Branscum
Unverified
Speaker 71
Speaker 72
Speaker 78
Speaker 79
Representative Denny Altes Chair
Unverified
Representative John T. Vines
Unverified
Representative John W. Walker
Unverified
Speaker 110
Representative Matthew Shepherd
Unverified
Speaker 113
Speaker 126
Speaker 85
Speaker 132
Speaker 135
Speaker 137
Representative Nate Steel
Unverified
Speaker 142
Speaker 143
Representative Kim Hammer
Unverified
Speaker 153
Representative Marshall Wright
Unverified
Speaker 156
Speaker 161
Speaker 162
Speaker 164
Dan Greenberg
Unverified
Speaker 171
Speaker 174
Speaker 175
Speaker 177
Representative Tiffany Rogers Chair
Unverified
Speaker 200
Speaker 205
Speaker 216
Speaker 219
Speaker 225
Speaker 234
Speaker 100
Representative Jeremy Gillam
Unverified
Speaker 253
Speaker 204
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Speaker 246
Speaker 298
Speaker 300
Speaker 302
Speaker 306
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Representative Gary Deffenbaugh
Unverified
Speaker 324
Speaker 291
John Depippa
Unverified
Speaker 339
Speaker 336
Speaker 138
Speaker 345
Speaker 349
Speaker 348
Speaker 121
Speaker 43
Speaker 365
Speaker 368
Speaker 379
Speaker 381
Representative Butch Wilkins
Unverified
Scott Baxter
Unverified
Speaker 390
Speaker 391
Speaker 400
Speaker 24
Speaker 392
Speaker 408
Speaker 409
Speaker 417
Speaker 424
Speaker 434
Speaker 420
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Speaker 438
Speaker 447
Speaker 436
Speaker 427
Speaker 421
Speaker 448
Speaker 430
Speaker 462
Speaker 450
Speaker 463
Speaker 481
Representative Tracy Steele
Unverified
Speaker 484
Chair
Unverified
Representative Andy Mayberry
Unverified
Speaker 495
Speaker 496
Speaker 497
Speaker 230
Speaker 331
Speaker 498
Speaker 500