Legislature(2007 - 2008)CAPITOL 120

04/27/2007 01:00 PM JUDICIARY

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                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         April 27, 2007                                                                                         
                           1:05 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Jay Ramras, Chair                                                                                                
Representative Nancy Dahlstrom, Vice Chair                                                                                      
Representative John Coghill                                                                                                     
Representative Bob Lynn                                                                                                         
Representative Ralph Samuels                                                                                                    
Representative Max Gruenberg                                                                                                    
Representative Lindsey Holmes                                                                                                   
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
HOUSE BILL NO. 22                                                                                                               
"An  Act  extending  the  termination   date  for  the  Board  of                                                               
Governors of  the Alaska  Bar Association;  and providing  for an                                                               
effective date."                                                                                                                
     - MOVED HB 22 OUT OF COMMITTEE                                                                                             
HOUSE BILL NO. 163                                                                                                              
"An Act  relating to real property  foreclosures, executions, and                                                               
deeds of trust."                                                                                                                
     - HEARD AND HELD                                                                                                           
HOUSE BILL NO. 194                                                                                                              
"An  Act  relating  to  fines   for  certain  offenses  involving                                                               
aeronautics, alcoholic  beverages, boats,  fish and  game, health                                                               
care  records and  public health,  medical review  organizations,                                                               
public    restroom   facilities,    smoking,   shelter    cabins,                                                               
refrigerators  and  similar  equipment, radiation  sources,  high                                                               
voltage  lines, child  labor,  employment  in underground  mines,                                                               
marriage   licenses,  motor   vehicles  and   driver's  licenses,                                                               
ignition  interlock devices,  pipelines, use  of the  state seal,                                                               
and  emissions   requirements;  relating  to  the   maximum  fine                                                               
provided for violations and infractions  and to the definition of                                                               
'minor   offenses';   redesignating   certain   fish   and   game                                                               
misdemeanor  offenses  as  class   A  misdemeanors;  relating  to                                                               
violations and offenses that are  committed on state land, water,                                                               
and land  and water or  that are  related to water  management or                                                               
dam  and reservoir  safety; amending  Rule 8(b),  Alaska District                                                               
Court  Rules   of  Criminal  Procedure;  and   providing  for  an                                                               
effective date."                                                                                                                
     - HEARD AND HELD                                                                                                           
HOUSE BILL NO. 225                                                                                                              
"An Act relating to misconduct involving weapons and bail."                                                                     
     - BILL HEARING CANCELED                                                                                                    
HOUSE BILL NO. 195                                                                                                              
"An Act relating to limited liability companies."                                                                               
     - BILL HEARING CANCELED                                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: HB 22                                                                                                                   
SHORT TITLE: EXTEND BOARD OF GOVERNORS ABA                                                                                      
SPONSOR(s): REPRESENTATIVE(s) STOLTZE, RAMRAS                                                                                   
01/16/07       (H)       PREFILE RELEASED 1/5/07                                                                                
01/16/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/16/07       (H)       JUD, FIN                                                                                               
04/27/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB 163                                                                                                                  
SHORT TITLE: PROPERTY FORECLOSURES AND EXECUTIONS                                                                               
SPONSOR(s): REPRESENTATIVE(s) RAMRAS                                                                                            
02/28/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/28/07       (H)       L&C, JUD                                                                                               
03/30/07       (H)       L&C AT 3:00 PM CAPITOL 17                                                                              
03/30/07       (H)       -- MEETING CANCELED --                                                                                 
04/20/07       (H)       L&C AT 3:00 PM CAPITOL 17                                                                              
04/20/07       (H)       Moved CSHB 163(L&C) Out of Committee                                                                   
04/20/07       (H)       MINUTE(L&C)                                                                                            
04/23/07       (H)       L&C RPT 1DP 4NR                                                                                        
04/23/07       (H)       DP: RAMRAS                                                                                             
04/23/07       (H)       NR: BUCH, LEDOUX, NEUMAN, OLSON                                                                        
04/27/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB 194                                                                                                                  
SHORT TITLE: FINES AND OFFENSES                                                                                                 
SPONSOR(s): RESOURCES                                                                                                           
03/14/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/14/07       (H)       RES, JUD, FIN                                                                                          
03/28/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
03/28/07       (H)       Scheduled But Not Heard                                                                                
04/04/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
04/04/07       (H)       Moved CSHB 194(RES) Out of Committee                                                                   
04/04/07       (H)       MINUTE(RES)                                                                                            
04/10/07       (H)       RES RPT CS(RES) 4DP 2NR                                                                                
04/10/07       (H)       DP: ROSES, SEATON, GATTO, JOHNSON                                                                      
04/10/07       (H)       NR: KOHRING, GUTTENBERG                                                                                
04/23/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/23/07       (H)       <Bill Hearing Rescheduled to 04/27/07>                                                                 
04/27/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
WITNESS REGISTER                                                                                                              
JAMES ARMSTRONG, Staff                                                                                                          
to Representative Bill Stoltze                                                                                                  
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented HB 22 on behalf of one of the                                                                  
joint prime sponsors, Representative Stoltze.                                                                                   
JOHN TIEMESSEN, President                                                                                                       
Alaska Bar Association (ABA)                                                                                                    
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During discussion of HB 22, spoke on the                                                                 
mission and history of the ABA.                                                                                                 
STEVE VAN GOOR, Bar Counsel                                                                                                     
Alaska Bar Association (ABA)                                                                                                    
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During discussion of HB 22, spoke on the                                                                 
role of the ABA.                                                                                                                
PAT DAVIDSON, Legislative Auditor                                                                                               
Division of Legislative Audit                                                                                                   
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  During discussion of HB 22, presented the                                                                
legislative audit of the bar association.                                                                                       
JANE W. PIERSON, Staff                                                                                                          
to Representative Jay Ramras                                                                                                    
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Presented HB 163 on behalf  of the sponsor,                                                             
Representative Ramras.                                                                                                          
STEPHEN ROUTH, Attorney at Law                                                                                                  
Routh & Crabtree, APC                                                                                                           
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Provided supporting testimony for HB 163.                                                                
HEATH HILYARD, Staff                                                                                                            
to Representative Carl Gatto                                                                                                    
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Presented HB 194 on behalf  of the sponsor,                                                             
the  House Resource  Standing Committee,  which is  co-chaired by                                                               
Representative Gatto.                                                                                                           
DICK MYLIUS, Acting Director                                                                                                    
Central Office                                                                                                                  
Division of Mining, Land and Water                                                                                              
Department of Natural Resources (DNR)                                                                                           
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:    Provided comments  during  discussion  of                                                             
HB 194.                                                                                                                         
JOHN BAKER, Assistant Attorney General                                                                                          
Natural Resources Section                                                                                                       
Civil Division (Anchorage)                                                                                                      
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Provided comments to HB 194.                                                                             
WYN MENEFEE, Chief of Operations                                                                                                
Central Office                                                                                                                  
Division of Mining, Land and Water                                                                                              
Department of Natural Resources (DNR)                                                                                           
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Provided comments to HB 194.                                                                             
ACTION NARRATIVE                                                                                                              
CHAIR JAY  RAMRAS called the  House Judiciary  Standing Committee                                                             
meeting  to  order  at  1:05:34   PM.    Representatives  Ramras,                                                             
Dahlstrom,  Coghill,  Lynn,  Samuels, and  Holmes  were  present.                                                               
Representative Gruenberg arrived as the meeting was in progress.                                                                
HB 22 - EXTEND BOARD OF GOVERNORS ABA                                                                                         
1:06:01 PM                                                                                                                    
CHAIR RAMRAS announced that the  first order of business would be                                                               
HOUSE BILL  22, "An  Act extending the  termination date  for the                                                               
Board of Governors  of the Alaska Bar  Association; and providing                                                               
for an effective date."                                                                                                         
1:06:34 PM                                                                                                                    
JAMES  ARMSTRONG, Staff  to Representative  Bill Stoltze,  Alaska                                                               
State Legislature,  relayed on behalf of  Representative Stoltze,                                                               
joint prime  sponsor, that HB  22 extends the appointment  of the                                                               
Alaska  Bar Association  (ABA) board  of governors  from July  1,                                                               
2007, to July 1, 2010.                                                                                                          
REPRESENTATIVE HOLMES noted that  the audit report recommends the                                                               
extension  to 2014.   She  asked why  the bill  only extends  the                                                               
board to 2010.                                                                                                                  
MR. ARMSTRONG  replied that  the sponsors  felt that  three years                                                               
would be  fine for  right now.   If  this initial  extension went                                                               
well, then they  would probably recommend this  for an eight-year                                                               
CHAIR RAMRAS, speaking  as one of the joint prime  sponsors of HB                                                               
22, surmised that  the bill has some  complicated components, and                                                               
that there  would be considerable  discussion as to who  would be                                                               
the stewards  of the  bar funds,  when the bill  is heard  in the                                                               
House Judiciary Standing Committee.                                                                                             
1:08:31 PM                                                                                                                    
JOHN TIEMESSEN, President, Alaska  Bar Association (ABA), offered                                                               
that the  one thing the  ABA enjoyed  about the sunset  clause is                                                               
the  ability to  communicate with  the legislature,  even though,                                                               
unfortunately,  it is  often the  only communication  between the                                                               
ABA and  the legislature.   He suggested annual  meetings between                                                               
the ABA and the House and Senate Judiciary Standing Committees.                                                                 
MR. TIEMESSEN noted  that many policies proposed  during the last                                                               
year  started  with  members  from  this  committee:    mandatory                                                               
continuing  legal  education  (CLE); a  diversity  initiative  to                                                               
increase Native Alaskan  membership in the ABA; and  a program to                                                               
initiate  discussions  of  careers  in  the  legal  and  judicial                                                               
profession  with the  youth and  others  from the  villages.   He                                                               
observed that  lawyers have been  licensed in Alaska  since 1895,                                                               
and that the  ABA has existed since 1955.   He commented that the                                                               
ABA  was an  old institution  and an  old instrumentality  of the                                                               
MR. TIEMESSEN outlined the audit  report recommendations from the                                                               
past two audits:  CLE, which  the board passed, and online access                                                               
for  [ABA] disciplinary  history, though  an old  software system                                                               
had slowed this progress.   Disciplinary history would be part of                                                               
the new database in 2007 or 2008.                                                                                               
MR. TIEMESSEN  commented that the  ABA core mission  of admission                                                               
and  discipline  is  taken  very seriously.    With  the  130-140                                                               
applicants  to  the  bar  each  year, the  ABA  conducts  a  full                                                               
background  check,  administers  and  grades  the  three-day  bar                                                               
examination,  and makes  recommendations  to  the Alaska  Supreme                                                               
Court for admissions to the bar.   He observed that discipline is                                                               
the  board's  most important  role,  as  it involves  their  core                                                               
mission  of  protection   of  the  public  interest.     The  ABA                                                               
recognizes   its  unique   professional  position,   as  directly                                                               
supervised  by  the  supreme court,  to  ensure  only  qualified,                                                               
ethical, honorable individuals appear  before the Alaskan courts.                                                               
He said the audit report demonstrates  that the board and the ABA                                                               
have done a "wonderful job" with their core missions.                                                                           
1:14:00 PM                                                                                                                    
MR.  TIEMESSEN,  in  response   to  Chair  Ramras,  relayed  that                                                               
disciplinary matters are confidential  until they reach a certain                                                               
REPRESENTATIVE  COGHILL,  referring  to   the  issue  of  ethics,                                                               
questioned how the ABA avoids  the perceived conflict of interest                                                               
of having attorneys on the board.                                                                                               
MR.  TIEMESSEN  explained  that   the  board  has  twelve  voting                                                               
members, nine of which are attorneys,  and three of which are lay                                                               
members.  One of the  board's responsibilities is fact finding to                                                               
support their disciplinary recommendations  to the Alaska Supreme                                                               
Court.   All attorney  discipline is done  by the  Alaska Supreme                                                               
Court.   The Alaska Supreme Court  is hardly "a rubber  stamp" he                                                               
remarked,  as  often matters  are  sent  back  to the  board  for                                                               
further findings.   As attorneys, he pointed out,  they know what                                                               
is and is not right.   The board maintains very strict accounting                                                               
and accountability  of members.  There  is a good balance  on the                                                               
board between the attorney members and  the lay members.  The lay                                                               
members  bring  a  lay  perspective  and  other  expertise.    As                                                               
attorney members,  they do  not want  any "whiff"  of impropriety                                                               
among their [board] members.                                                                                                    
1:17:43 PM                                                                                                                    
REPRESENTATIVE COGHILL concurred.                                                                                               
CHAIR RAMRAS  asked a question  regarding the aggregate  money in                                                               
trust accounts and the interest that money accrued.                                                                             
MR. TIEMESSEN explained  that the Alaska Interest  on Legal Trust                                                               
Accounts   (IOLTA)  system   is   available   for  attorneys   to                                                               
participate  in.   This is  an "opt  out" system.   In  2006, the                                                               
IOLTA earned  $146,822 in interest,  and awarded  grants totaling                                                               
$104,000.    These  grants went  to  Alaska  Immigration  Justice                                                               
Project, Alaska Pro Bono Program,  United Youth Courts of Alaska,                                                               
and Alaska  Legal Services Corporation.   Much of the  money went                                                               
to provide legal representation for  the indigent, and for access                                                               
to justice programs.                                                                                                            
CHAIR  RAMRAS  suggested to  Mr.  Tiemessen  that he  speak  with                                                               
Senator  McGuire regarding  possible use  of the  IOLTA funds  to                                                               
help  fund the  Alaska Legal  Services Fund.   Chair  Ramras also                                                               
asked how much money is in the broader trust account.                                                                           
MR.  TIEMESSEN in  response  to the  question  on trust  accounts                                                               
replied it  would be difficult to  know how much money  is in all                                                               
the legal  trust accounts,  but he  could extrapolate  that gross                                                               
amount using a  calculation for a three  percent interest return.                                                               
He further explained that "opt  out" means the interest return is                                                               
not required  to be used for  legal justice programs.   For large                                                               
amounts of money  placed in trust account  deposits, some clients                                                               
would prefer to have the accrued interest returned to them.                                                                     
CHAIR  RAMRAS asked  for clarification  that  the interest  money                                                               
does not go to the attorney.                                                                                                    
MR.  TIEMESSEN  responded  that  the  money  never  goes  to  the                                                               
REPRESENTATIVE LYNN  asked how many complaints  were investigated                                                               
that  continued through  disciplinary action,  and what  were the                                                               
typical areas of complaint or misbehavior.                                                                                      
1:21:56 PM                                                                                                                    
STEVE  VAN  GOOR,  Bar Counsel,  Alaska  Bar  Association  (ABA),                                                               
relayed that his principal responsibilities  are to supervise the                                                               
discipline section of  the ABA.  The  discipline section consists                                                               
of 7  of the 17 employees  of the bar.   The discipline section's                                                               
task is to field grievances  filed against attorneys, and to give                                                               
the public information  about the grievance process.   He and his                                                               
colleagues at the ABA office  also provide informal ethics advice                                                               
to  help lawyers  stay out  of  trouble.   Historically, the  ABA                                                               
annually receives  200-300 complaints  concerning members  of the                                                               
ABA.  This  is about a 10 percent complaint  rate, similar to the                                                               
rate of complaints throughout the nation.                                                                                       
MR. VAN GOOR  commented that about half the  complaints fell into                                                               
the "intake stage."  This "intake  stage" is a stage in which the                                                               
lawyer is immediately served with  the complaint.  At this point,                                                               
the  ABA asks  for  a  voluntary response,  and  most lawyers  do                                                               
respond  at this  time.   The ABA  is then  able to  identify and                                                               
determine which  complaints should be formally  investigated, and                                                               
which misconducts  should be prosecuted.   Of all  the complaints                                                               
received, 5-10 percent of the  complaints may result in some form                                                               
of  discipline.   An even  smaller percentage  of the  complaints                                                               
results  in  public  discipline.   This  is  reserved  for  those                                                               
offenses that everyone would recognize  as problems, for example,                                                               
lying, cheating, and stealing.                                                                                                  
MR.  VAN  GOOR  went  on  to explain  that  trust  accounts,  and                                                               
mismanagement, misappropriation, or  stealing from these accounts                                                               
are  the  "third  rail"  of attorney  discipline.    Lawyers  are                                                               
entrusted  with billions  of transaction  dollars  being held  in                                                               
escrow and  this money is  not bonded.  There  is not a  bond for                                                               
the  money  because  the consequence  for  misappropriating  this                                                               
money is  significant suspension or disbarment  from the practice                                                               
of  law.   He  also  explained  that  the discipline  section  is                                                               
identifying  those lawyers  that have  no business  being lawyers                                                               
because  of misconduct,  and performing  an  educational role  in                                                               
fielding  almost  900 calls  each  year  from lawyers  requesting                                                               
legal ethics advice.                                                                                                            
REPRESENTATIVE  LYNN  remarked  this  is similar  to  the  ethics                                                               
procedure for the Board of Realtors.                                                                                            
1:25:37 PM                                                                                                                    
REPRESENTATIVE  SAMUELS  asked  for  a  description  of  the  ABA                                                               
internal review process for an ethics violation.                                                                                
MR.  TIEMESSEN   conveyed  that  once  a   written  complaint  is                                                               
received,  it   is  screened   by  Bar   Counsel,  who   makes  a                                                               
determination  whether the  allegations,  if  proven true,  would                                                               
have a basis for discipline.   The attorney is then provided with                                                               
an   opportunity  to   respond  to   the  allegations,   and  the                                                               
complainant is  allowed to reply.   There could then be  a second                                                               
response  from  the attorney.    After  this, Bar  Counsel  would                                                               
conduct an  investigation and  make a decision.   At  this point,                                                               
the matter  is either resolved, or  it may go on  to an area-wide                                                               
hearing committee.   This committee, consisting  of two attorneys                                                               
and one lay person, will then issue  a decision.  If the issue is                                                               
still  not resolved,  it can  go to  the ABA  Board of  Governors                                                               
sitting as a disciplinary board.   The ABA Board of Governors can                                                               
make  a  recommendation  for discipline  to  the  Alaska  Supreme                                                               
REPRESENTATIVE  SAMUELS asked  what happens  if the  complaint is                                                               
against a justice on the supreme court.                                                                                         
MR. TIEMESSEN  responded that a  special counsel is  appointed if                                                               
there is a complaint by or against the Board of Governors.                                                                      
1:28:45 PM                                                                                                                    
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]                                                                   
MR.  VAN GOOR  further  informed  that if  there  is a  complaint                                                               
against any  judge in  the state of  Alaska, including  a supreme                                                               
court justice,  the complaint would  go to the  Alaska Commission                                                               
on Judicial  Conduct (CJC),  which has a  process similar  to the                                                               
ABA  Bar Counsel.   Most  commonly, the  complaint would  be with                                                               
regard to  a decision made by  a judge, and these  do not usually                                                               
result in a  formal investigation.  If  the commission determines                                                               
that an  investigation is  necessary, it would  move to  a higher                                                               
special  counsel  to  handle the  prosecution.    The  commission                                                               
itself,  consisting of  three judges,  three  lawyers, and  three                                                               
public  members appointed  by the  governor,  would consider  the                                                               
case,   and,  in   a   case  of   serious   misconduct,  make   a                                                               
recommendation to the Alaska Supreme  Court.  If this concerned a                                                               
justice   of  the   supreme  court,   that   justice  would   not                                                               
participate.   In this instance,  Mr. Van Goor surmised  that the                                                               
supreme court would  appoint a superior court judge  as a supreme                                                               
court judge pro tem to sit in on the disciplinary matter.                                                                       
MR. VAN GOOR  recalled that there have been two  instances in the                                                               
past  wherein the  supreme  court did  appoint  a superior  court                                                               
judge pro tem.                                                                                                                  
REPRESENTATIVE SAMUELS  pointed out,  though, that  it is  a very                                                               
small group  of people that  are judging themselves and  who also                                                               
have to do business with each other.   He pointed out that if the                                                               
legislature  attempted something  similar with  regard to  ethics                                                               
complaints, the electorate  would not approve.   This would allow                                                               
a small group  of people to have an inordinate  amount of control                                                               
over an entire branch of government.   The public has very little                                                               
say in this,  as only three members of the  Board of Governors of                                                               
the ABA are confirmed.   He asked Mr. Van Goor  to comment on the                                                               
idea of  an amendment which  would state  that all 12  members of                                                               
the Board of Governors would need to be confirmed.                                                                              
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
REPRESENTATIVE SAMUELS  said that he  didn't know how to  fix the                                                               
perceived problem but opined that  he'd once attempted to hire an                                                               
attorney to  file a  complaint against  a supreme  court justice,                                                               
but  he  was told  "I  have  to do  business  in  front of  those                                                               
people."   Representative Samuels commented that  he realized the                                                               
practicality of the  entire situation, and that he  would need to                                                               
find a different method to even file the complaint.                                                                             
1:33:59 PM                                                                                                                    
MR.  TIEMESSEN acknowledged  that point,  but offered  that there                                                               
are  public  members  throughout  the system.    He  offered  his                                                               
personal  feeling  that when  an  attorney  that he  knows  comes                                                               
before him,  his first  inclination is "not  to cut  them slack,"                                                               
rather "to  flog them" because  he knows  them.  If  anything, he                                                               
knows that  he must instead pull  that inclination back.   It can                                                               
be  much easier  to be  objective with  an attorney  he does  not                                                               
know.  He  went on to further describe that  one change in recent                                                               
years is public censure as a  discipline by the court.  This used                                                               
to be an order  from the court, but now it is  an order to appear                                                               
before the  full court.  The  person stands in front  of the full                                                               
court and gets "chewed out" by the entire supreme court.                                                                        
MR.  TIEMESSEN reiterated  that  he understood  the concern,  but                                                               
could only  give his personal  assurance of a  harsher discipline                                                               
for those attorneys  appearing before the board who  are known by                                                               
a committee member.                                                                                                             
REPRESENTATIVE  SAMUELS  reiterated  his comments  regarding  the                                                               
makeup of the legal counsels  and boards being over weighted with                                                               
attorneys who  are internally picked  and not elected.   The pool                                                               
of people  picking the attorneys is  even smaller.  He  asked Mr.                                                               
Tiemessen how many attorneys are in Alaska.                                                                                     
MR. TIEMESSEN  responded there  are 2,800  active members  of the                                                               
REPRESENTATIVE SAMUELS surmised that not  all those are active in                                                               
selecting the board and counsel members.                                                                                        
REPRESENTATIVE GRUENBERG pointed out  that although those numbers                                                               
sound small,  Alaska is  small state in  terms of  population and                                                               
thus has a  smaller pool of attorneys.  He  recalled that when he                                                               
took the bar  exam in California, 2,000 members  were admitted to                                                               
the California  bar; but  when he  took the  bar exam  in Alaska,                                                               
only 32 new members were admitted.                                                                                              
REPRESENTATIVE COGHILL remarked on the  need for the public to be                                                               
assured [of  the integrity  of all  branches of  the government].                                                               
One of the reasons for the  one-year extension [of the ABA board]                                                               
is to try  to figure out the  best way to ensure  integrity.  One                                                               
of the  recommendations is that  [an ABA board  appointment] fall                                                               
to the Alaska  Supreme Court as an appointed position.   He asked                                                               
Mr. Tiemessen how the board felt about this.                                                                                    
MR. TIEMESSEN  reiterated that the  Alaska Supreme Court  does do                                                               
discipline.    All  the  supreme  court  says  to  the  Board  of                                                               
Governors is  that it is busy  being the supreme court  on a day-                                                               
to-day  basis  and so  asks  the  board  to  find the  facts,  do                                                               
conclusions  of law,  and  make  recommendations on  disciplinary                                                               
matters to the supreme court.                                                                                                   
REPRESENTATIVE COGHILL  proposed that an analogous  commentary in                                                               
the legislature would  be that the House  majority leader screens                                                               
all the legislative  issues that go before  the ethics committee,                                                               
and then make recommendations to the ethics committee.                                                                          
1:41:43 PM                                                                                                                    
MR.  TIEMESSEN  explained that  the  current  board system  is  a                                                               
tremendously  powerful  and  effective method  of  screening  out                                                               
"nut"  complaints, many  of which  are by  prisoners against  the                                                               
district attorney, for obvious reasons.                                                                                         
CHAIR RAMRAS asked  Ms. Davidson to give a cursory  review of the                                                               
[legislative audit] recommendations.   He offered that it appears                                                               
there were  two issues to  address:   an issue with  funding that                                                               
should be  addressed by the  finance committees, and an  issue to                                                               
address  the  ethical aspect  of  self-policing.   He  asked  Ms.                                                               
Davidson to limit her remarks to the ethical aspect.                                                                            
REPRESENTATIVE  SAMUELS  clarified his  concern  is  for lack  of                                                               
oversight of the judiciary branch by the people.                                                                                
MR. TIEMESSEN  relayed that  the board would  be willing  to look                                                               
into that  point.  He mentioned  that in this context,  the board                                                               
does serve  two masters.  The  board is a creation  of and serves                                                               
delegated  duties  from the  Alaska  Supreme  Court, as  well  as                                                               
serves  under  sunset  authority  from  the  legislature.    This                                                               
highlights the conflict as he perceived.                                                                                        
1:45:04 PM                                                                                                                    
PAT  DAVIDSON,  Legislative   Auditor,  Division  of  Legislative                                                               
Audit, Alaska  State Legislature,  responded that the  concern of                                                               
the  Division   of  Legislative   Audit  was  addressed   at  the                                                               
disciplinary level,  as the  disciplinary function  was occurring                                                               
within  the  ABA.    For example,  the  Department  of  Commerce,                                                               
Community, and  Economic Development (DCCED)  investigative staff                                                               
does  not report  directly to  the boards  under its  purview, in                                                               
terms  of what  they investigate.   The  investigative staff  are                                                               
employees  of   the  division,  and  once   they  conclude  their                                                               
investigation,  they   make  recommendations  to  the   board  in                                                               
question.   Therefore, members  of the  profession are  not doing                                                               
the   investigations,   though   an  investigator   may   require                                                               
expertise, and so may go to  the board to ask for recommendations                                                               
or discuss  some of the issues.   There is a  separation, though,                                                               
between the  occupational licensing boards and  the investigative                                                               
function of the division.   The legislative audit's suggestion to                                                               
the ABA  was to  remove the investigation  function from  the ABA                                                               
MS. DAVIDSON  commented that  the responses  by the  court system                                                               
and the  ABA were that the  audit suggestion did not  feel either                                                               
"particularly workable" or "totally necessary."                                                                                 
REPRESENTATIVE  GRUENBERG  noted  that the  third  recommendation                                                               
from  the legislative  audit  was  that the  board  [of the  ABA]                                                               
should  adopt a  due  date for  its annual  report.   This  would                                                               
ensure  that it  is  made  available to  the  supreme court,  the                                                               
legislature, and the public on a timely basis.                                                                                  
MR.  TIEMESSEN   responded  that  the  recommendation   has  been                                                               
implemented both  in practice  and rule.   There was  an internal                                                               
error in tardiness from the ABA, and this would not be repeated.                                                                
REPRESENTATIVE COGHILL  opined that the transparency  issue ought                                                               
to be addressed as it pertains to the court system.                                                                             
REPRESENTATIVE  GRUENBERG  said  he'd   planned  to  introduce  a                                                               
mandatory continuing  legal education bill or  amendment, but did                                                               
not do so  because the board of governors agreed  to discuss this                                                               
with  the  Alaska  Supreme  Court,  and  has  since  submitted  a                                                               
proposed rule for mandatory CLE.   The supreme court had reviewed                                                               
this  rule, and  sent it  back  for further  work.   He said  the                                                               
public demands CLE.  He continued,  stating that this is not just                                                               
mandatory  reporting, but  really good  programs so  that lawyers                                                               
keep up with the law and don't commit malpractice.                                                                              
REPRESENTATIVE SAMUELS  offered to assist  Representative Coghill                                                               
with the  concerns being raised  regarding ethics.   He expressed                                                               
some of  the problems  with the structure  of review  boards, and                                                               
the background of the members who comprise the boards.                                                                          
CHAIR RAMRAS  added that a  reallocation for the  distribution of                                                               
the trust funds might resolve some of the issues.                                                                               
MR.  TIEMESSEN  remarked that  of  the  $14.5 million  in  trust,                                                               
assuming a 3 percent return,  about 53 percent of the distributed                                                               
funds went directly  to pro bono work.  The  current problem that                                                               
the Alaska  Legal Services Corporation  faces in funding  was not                                                               
caused by  a drop  in the  IOLTA percentage; it  was caused  by a                                                               
drop in the interest rates.                                                                                                     
1:53:50 PM                                                                                                                    
REPRESENTATIVE GRUENBERG moved  to report HB 22  out of committee                                                               
with individual recommendations and  the accompanying zero fiscal                                                               
notes.   There being no  objection, HB  22 was reported  from the                                                               
House Judiciary Standing Committee.                                                                                             
HB 163 - PROPERTY FORECLOSURES AND EXECUTIONS                                                                                 
1:54:29 PM                                                                                                                    
CHAIR RAMRAS announced  that the next order of  business would be                                                               
HOUSE  BILL   NO.  163,  "An   Act  relating  to   real  property                                                               
foreclosures,  executions,  and deeds  of  trust."   [Before  the                                                               
committee was CSHB  163(L&C); included in members'  packets was a                                                               
proposed  committee  substitute  (CS)  for HB  163,  Version  25-                                                               
LS0630\K, Bannister, 4/24/07.]                                                                                                  
CHAIR RAMRAS, speaking  as the sponsor, relayed  that the genesis                                                               
of HB  163 was the result  of the failure of  subprime borrowers.                                                               
The bill is  meant to clarify things for  borrowers, lenders, and                                                               
title  companies.   He  mentioned  that  in the  prior  committee                                                               
hearing it  was evident that  the lenders and title  companies do                                                               
an able job  of looking out for themselves but  no one is looking                                                               
out for the interest of the  borrowers once it becomes clear that                                                               
they are  in trouble.   No one  seems to be  the trustee  of that                                                               
[home] equity  when a borrower  is going to lose  their property.                                                               
Once a  borrower is in trouble  and it is clear  the property was                                                               
going to  be lost,  there is  often equity  in the  property with                                                               
which  neither the  lender nor  the title  company is  concerned,                                                               
beyond that which the bank was reimbursed.                                                                                      
1:57:09 PM                                                                                                                    
REPRESENTATIVE DAHLSTROM  moved to adopt  the proposed CS  for HB                                                               
163,  Version 25-LS0630\K,  Bannister,  4/24/07,  as the  working                                                               
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.                                                                
REPRESENTATIVE LYNN declared  he may have a  possible conflict of                                                               
interest as he is a licensed real estate broker.                                                                                
REPRESENTATIVE  HOLMES  also  declared  a  possible  conflict  of                                                               
interest, as she is a real estate attorney.                                                                                     
REPRESENTATIVE     GRUENBERG     objected,     thus     requiring                                                               
Representatives Lynn  and Holmes to participate  in any necessary                                                               
1:58:11 PM                                                                                                                    
JANE  W.  PIERSON, Staff  to  Representative  Jay Ramras,  Alaska                                                               
State Legislature, sponsor, remarked  on behalf of Representative                                                               
Ramras  that   current  Alaska   statutes  on   foreclosures  are                                                               
antiquated, ambiguous,  unclear, and prone to  litigation.  House                                                               
Bill  163 would  clarify,  simplify, and  modernize,  as well  as                                                               
reduce litigation.  Currently, the  process of foreclosure is one                                                               
that  allows auction  on the  courthouse steps.   At  this point,                                                               
there is  a group, which  she characterized as  "bottom feeders,"                                                               
who  regularly attend  these  auctions,  purchase the  properties                                                               
with the intention of making a  quick sale, and don't really care                                                               
about  the neighborhoods  surrounding the  foreclosed properties.                                                               
House  Bill 163  would  make property  foreclosure auctions  more                                                               
open and accessible.  It  would benefit borrowers, lenders, title                                                               
insurers, individuals,  and neighborhoods.  The  bill was drafted                                                               
using  examples  from the  best  practices  of 11  other  states.                                                               
Currently banks are averaging a  loss of $20,000 per foreclosure.                                                               
This bill would  clarify how dispersal of excess  income from the                                                               
sale would go back to  the borrower, and would require properties                                                               
to  be  listed on  the  internet  and  in  the newspaper.    This                                                               
increased exposure  would attract  more bidders  to bring  up the                                                               
price, purchase homes, and repay more money to the borrowers.                                                                   
MS. PIERSON,  referring to Version  K, relayed that  the versions                                                               
of  the  bill  on  both  sides  of  the  legislature  are  moving                                                               
simultaneously and  similarly.  The  title was changed  to remove                                                               
"post  office" as  a  place of  notification,  because some  post                                                               
offices no longer want to post public notices.                                                                                  
CHAIR RAMRAS  added that  another change was  such that  the bill                                                               
used to say "three months" and now says 90 days.                                                                                
2:03:50 PM                                                                                                                    
REPRESENTATIVE GRUENBERG removed his objection.                                                                                 
CHAIR  RAMRAS  indicated  that  Version  K  was  now  before  the                                                               
CHAIR  RAMRAS went  on to  explain  that the  Internet offered  a                                                               
wider base to bring in more  potential buyers, and that Version K                                                               
addresses  the  issue of  more  competition  for distressed  real                                                               
estate;  the issue  was "who  is  looking out  for the  borrower,                                                               
who's already  in trouble."  It  is fair to anticipate,  as these                                                               
issues sweep across the country,  that these problems will emerge                                                               
in Alaska.                                                                                                                      
CHAIR RAMRAS stated that when  a loan rate goes up significantly,                                                               
the  borrower cannot  afford  the  higher rate,  and  so is  then                                                               
forced to  try to find a  new loan.  However,  because the market                                                               
could  then be  much tighter,  the borrower  may have  difficulty                                                               
finding a  new loan, and  yet the borrower cannot  afford his/her                                                               
current loan  at the higher rates,  but may have equity  in their                                                               
home.     By  creating  more  clarification   for  timelines  and                                                               
broadcasting  the notice  of de-fault,  this will  better protect                                                               
the consumer.                                                                                                                   
REPRESENTATIVE GRUENBERG  asked for  a sectional analysis  of the                                                               
2:08:51 PM                                                                                                                    
STEPHEN ROUTH, Attorney at Law,  Routh & Crabtree, APC, mentioned                                                               
that  his field  of  expertise  is real  estate  finance and  the                                                               
foreclosure  process,   and  that  he  has   written  and  spoken                                                               
nationwide  on  matters  relating to  non-judicial  foreclosures.                                                               
His office has  identified several areas of  foreclosure law that                                                               
could  be  made  more  efficient,   fairer,  and  less  prone  to                                                               
litigation.  This bill addresses many  of these areas.  Section 1                                                               
deletes the  requirement of public  posting at post offices.   It                                                               
has become  impossible to post  at some  post offices due  to the                                                               
interpretation  of federal  regulations by  postmasters that  one                                                               
cannot  post these  kinds of  notices inside  post offices.   His                                                               
office  suggested,  instead  of  requiring  three  public  places                                                               
including  a post  office, just  requiring  three public  places,                                                               
none mandated to be a post office.                                                                                              
REPRESENTATIVE GRUENBERG  referred to  a bill  regarding election                                                               
notices from a  few years ago, and acknowledged  that the concept                                                               
of posting in public places,  especially in larger places, may be                                                               
anachronistic.  He  asked whether such posting is  helpful in the                                                               
foreclosure field,  or whether something  besides posting  on the                                                               
Internet, in addition, should be done.                                                                                          
MR. ROUTH offered  that his experience showed  the most effective                                                               
method was through the Internet.                                                                                                
REPRESENTATIVE  LYNN  asked  what   would  constitute  a  "public                                                               
MR.  ROUTH responded  that this  is not  specifically defined  in                                                               
statute.  However, in practice,  in most judicial districts, this                                                               
would include any  public building, a state court  house, and the                                                               
post  office.   However, as  it  is not  defined specifically  in                                                               
statute,  it "could  be a  tree on  the corner,  as long  as it's                                                               
MR. ROUTH continued  discussing Sections 2 and 3.   He summarized                                                               
that  both  are  designed  to attract  more  interest  in  public                                                               
foreclosure  auctions.   The wider  publicity would  attract more                                                               
bidders.  Section 3 provides a  mechanism for "proving up the web                                                               
REPRESENTATIVE GRUENBERG  asked how  people would find  out where                                                               
the web sites are, both to look at and to advertise on.                                                                         
MR. ROUTH  replied that it should  be the same way  as with legal                                                               
newspapers.  The final arbiters  would be the title companies who                                                               
would provide  a list of  web sites  that qualify.   People would                                                               
most  likely  learn about  these  web  sites  by using  a  search                                                               
engine,  and   typing  in  the   request,  for   example,  Alaska                                                               
foreclosure notices, or something similar.   This would result in                                                               
a list of sites.                                                                                                                
MR. ROUTH continued, explaining that  Section 3 simply allows for                                                               
a mechanism to approve a web  site, similar to the current system                                                               
to  approve newspapers.   Section  4  refers to  time limits  for                                                               
reinstatement.  It changes some  language from three months to 90                                                               
days, and  also puts  a limit  of 5  days before  the foreclosure                                                               
auction to  reinstate or pay off.   The reason for  this limit is                                                               
that one of  the most litigation-prone areas of  this practice is                                                               
at the sale.                                                                                                                    
2:16:41 PM                                                                                                                    
REPRESENTATIVE HOLMES  offered that [Section 4]  appears to limit                                                               
the rights  of property owners  to hold  on to their  property if                                                               
they could come up with the  money, for example, in the last five                                                               
days before the sale.                                                                                                           
REPRESENTATIVE GRUENBERG expressed similar  concerns.  He pointed                                                               
out there  are some  people who might  have a  temporary problem.                                                               
He  asked whether  deleting  the  phrase "up  to  five days"  and                                                           
allowing the  bill to state "up  to the date of  the sale", would                                                               
be alright.                                                                                                                     
MR.  ROUTH  said he  has  no  objection to  such  a  change.   He                                                               
commented  that his  experience is  that no  bank would  refuse a                                                               
payment if it had time to  process the payment.  This [provision]                                                               
gives the bank this  right, if there is a mix up  at the sale, to                                                               
say it is  too late.  A  last minute flurry can  be expensive for                                                               
the borrower, because  the deed of trust says any  money spent to                                                               
protect the security of the deed  of trust goes to the borrower's                                                               
account.   He characterized this  section as system  friendly and                                                               
efficient adding that  he did not feel this  section is "borrower                                                               
REPRESENTATIVE GRUENBERG  commented that the law  tries to ensure                                                               
borrowers are given a fair shake.                                                                                               
MR.   ROUTH   reported   that   Section   5   clarifies   mailing                                                               
requirements; it proposes to change  the language of "grantor" to                                                               
"trustor" to  make it consistent with  the rest of the  bill.  It                                                               
also clarifies actual possession, an area of some litigation.                                                                   
REPRESENTATIVE   GRUENBERG  asked   whether  the   term,  "actual                                                           
physical   possession,"   may    cause   additional   litigation,                                                           
particularly  since   raw  land   or  similar  property   is  not                                                               
necessarily subject to actual possession.                                                                                       
MR.  ROUTH  answered  that  the law  has  always  said  "physical                                                               
possession" or  "possession".  This proposed  change would simply                                                               
clarify  this.    There  was   prior  litigation  regarding  what                                                               
possession really  meant, whether  that was  inferred possession.                                                               
Section 5  states, in combination  with the change in  Section 6,                                                               
how to  deal with determining possession.   He went on  to detail                                                               
Section 6,  which as  a follow  on of  Section 5,  clarified what                                                               
kind  of  notice  is  inferred  from  possession.    The  mailing                                                               
requirement is just one of five  types of notices mandated by the                                                               
statute.  Internet notification would  be an added type of notice                                                               
with  this bill.    Section 6  also  speaks about  non-possession                                                               
liens, and cleans up some of the language.                                                                                      
REPRESENTATIVE GRUENBERG  commented that  the [Version] is  not a                                                               
statute  of limitations  but a  conclusive presumption,  which is                                                               
fairly  unusual in  the law.   He  surmised that  the reason  for                                                               
using conclusive  presumption rather than statute  of limitations                                                               
is that the sponsors did not  want two parties to waive a statute                                                               
of limitation that might impact others  who might not be privy to                                                               
that information  and are, instead,  relying just on  the records                                                               
as to the ownership of the property.                                                                                            
MR.  ROUTH concurred  with  that  summation.   In  response to  a                                                               
question, he  explained that this  is an area of  litigation that                                                               
can unsettle  title to real estate.   This provision sets  a time                                                               
limit regarding  complaints pertaining to affidavits  of posting.                                                               
He recognized the  conclusive presumptive is not  often used, but                                                               
if one  had complied with  the requirements of the  statute, then                                                               
one could  not go  back and  complain about  the affidavit.   The                                                               
affidavit  is considered  to be  correct  after one  year.   This                                                               
allows real  property settlements; record title  to real property                                                               
could be relied upon.                                                                                                           
2:25:22 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG voiced  that a  statute of  limitations                                                               
can  be waived  in civil  cases by  the parties  involved, but  a                                                               
conclusive  presumption cannot  be waived.   He  said he  assumes                                                               
this is a good policy.                                                                                                          
MR.  ROUTH  agreed  with Representative  Gruenberg,  stating  the                                                               
issue is to get  to the same place of settling  the title of real                                                               
MR. ROUTH continued the overview of  Section 6:  the procedure on                                                               
delivering notice  if the property  is raw land  or inaccessible;                                                               
the procedure  if the borrower  is deceased and the  necessity of                                                               
extra notices; and clarification of  who could bring an action to                                                               
restrain a trustee sale.                                                                                                        
MR. ROUTH  went on to discuss  Section 7:  what  happens with the                                                               
proceeds from  a sale and that  it is mandated that  the proceeds                                                               
go  into escrow  until dispersal.   He  explained that  Section 7                                                               
allows  the  trustee  to  accept  bids in  places  which  are  in                                                               
addition  to  the  court  house  steps,  such  as  by  telephone,                                                               
internet, and e-mail,  as long as the trustee has  taken steps to                                                               
ensure that those  methods are workable and would  result in fair                                                               
access for people.   It is designed to allow  money for dispersal                                                               
to be available immediately after the sale.                                                                                     
MR. ROUTH continued with Section  8:  confirmation of the present                                                               
practice that agents for the  trustee may conduct the foreclosure                                                               
auction.   Section  9  clarifies the  procedure  on postponing  a                                                               
REPRESENTATIVE  GRUENBERG  referred  to   Section  8,  and  asked                                                               
whether the rules  and conditions for the conduct of  a sale must                                                               
be made available in advance.                                                                                                   
MR. ROUTH  responded that yes,  in practice the  published notice                                                               
of  sale  that   is  mandated  by  statute   would  contain  some                                                               
information.  Currently,  the practice is to have  the rules read                                                               
prior to  the opening of  the auction.   This bill  would clarify                                                               
that the current system, which works well, would continue.                                                                      
REPRESENTATIVE GRUENBERG questioned who  will qualify an Internet                                                               
MR.  ROUTH responded  that this  qualification  process would  be                                                               
left  to  the  discretion  of  the  trustee.    He  continued  by                                                               
explaining an already tested solution:   the bidder would go to a                                                               
bank and  put money  on deposit  and that  deposit would  be made                                                               
instantly available and transferable to the trustee.                                                                            
MR.  ROUTH  continued on  to  Section  9,  which dealt  with  the                                                               
procedure of postponement of a sale.                                                                                            
REPRESENTATIVE DAHLSTROM  asked who would be  responsible for the                                                               
maintenance and  security of the property  during a postponement,                                                               
and who would be responsible for that expense.                                                                                  
MR.  ROUTH explained  the reason  for the  postponement would  be                                                               
that the borrower  is still in the house and  is simply trying to                                                               
work out  a payment  plan.   This situation  would not  involve a                                                               
vacant  property.   He said  he could  think of  no reason  for a                                                               
vacant property  sale to  be postponed.   In general,  the lender                                                               
doesn't have a right to access the property.                                                                                    
REPRESENTATIVE DAHLSTROM asked who  would make that determination                                                               
for the postponement of a sale, referred to in Section 9.                                                                       
MR. ROUTH relayed that this  decision would come from the lender.                                                               
Current  law determines  that  the lender  can  postpone for  any                                                               
period of  time, for any  reason.  The  change in law  would also                                                               
protect the borrower with the requirement to give new notice.                                                                   
2:35:52 PM                                                                                                                    
MR.  ROUTH went  on to  explain Section  10, which  clarifies the                                                               
division of the  proceeds of a sale, and  addresses the unwinding                                                               
of a foreclosure  auction should a mistake occur  in the process.                                                               
Sections  11  and  12  clarify   the  substitution  of  trustees.                                                               
Section  13  requires  a  bond  on  foreclosure  trustees,  since                                                               
currently  foreclosure  trustees  have no  fiscal  responsibility                                                               
MR.  ROUTH,  in  response  to   a  question  from  Representative                                                               
Coghill, said that  one bond exemption is  for title underwriters                                                               
and one exemption is for  the agents of the underwriters, because                                                               
both are already licensed through the state.                                                                                    
REPRESENTATIVE COGHILL asked if these  are the only exceptions to                                                               
the bonding.                                                                                                                    
REPRESENTATIVE  GRUENBERG  asked  whether   the  bond  amount  of                                                               
$250,000 would be adequate in  all cases.  He suggested, instead,                                                               
a bond amount tied to the value of the property.                                                                                
MR.  ROUTH explained  the bond  was not  per transaction  but for                                                               
each trustee.   He agreed that  the bond might not  be enough but                                                               
since currently  there is no  bond requirement, it might  be good                                                               
to have  an incremental approach.   He continued to  explain that                                                               
bonding  companies  feel this  is  a  reasonable bond  which  the                                                               
companies are comfortable bonding.                                                                                              
2:40:19 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG remarked  that this  bond amount  might                                                               
not be enough to satisfy the cumulative claims.                                                                                 
MR. ROUTH  acknowledged that  this could be  the case,  since the                                                               
bond is per  trustee, not per property.  The  bond requirement is                                                               
similar to current contractor bond  requirements.  To have a bond                                                               
requirement per sale,  the sale cost to the borrower  would go up                                                               
so much  that it wouldn't  be workable.   As there is  no current                                                               
requirement, this would be a modest first step.                                                                                 
REPRESENTATIVE GRUENBERG added  that this bond would  be in force                                                               
and cover all  claims made through the statute  of limitations on                                                               
any action  against the trustee.   He  asked what the  statute of                                                               
limitations would be for the bond coverage.                                                                                     
MR. ROUTH replied  he is not sure there is  an endpoint for these                                                               
bonds.  His  basic understanding, though, is that  the bond would                                                               
be period to period.                                                                                                            
REPRESENTATIVE  GRUENBERG questioned  whether there  should be  a                                                               
requirement that a bond be in  force until the end of the statute                                                               
of limitations.                                                                                                                 
MR.  ROUTH  agreed   that  a  "tail  period"  would   be  a  good                                                               
requirement, but  not at this time.   He said he  would prefer to                                                               
see  how  the current  proposal  works,  particularly given  that                                                               
nothing currently exists.                                                                                                       
[HB 163 was held over.]                                                                                                         
HB 194 - FINES AND OFFENSES                                                                                                   
2:46:12 PM                                                                                                                    
CHAIR RAMRAS announced that the  final order of business would be                                                               
HOUSE  BILL  NO. 194,  "An  Act  relating  to fines  for  certain                                                               
offenses involving aeronautics,  alcoholic beverages, boats, fish                                                               
and game, health  care records and public  health, medical review                                                               
organizations,  public  restroom   facilities,  smoking,  shelter                                                               
cabins, refrigerators  and similar equipment,  radiation sources,                                                               
high  voltage  lines,  child  labor,  employment  in  underground                                                               
mines, marriage  licenses, motor vehicles and  driver's licenses,                                                               
ignition  interlock devices,  pipelines, use  of the  state seal,                                                               
and  emissions   requirements;  relating  to  the   maximum  fine                                                               
provided for violations and infractions  and to the definition of                                                               
'minor   offenses';   redesignating   certain   fish   and   game                                                               
misdemeanor  offenses  as  class   A  misdemeanors;  relating  to                                                               
violations and offenses that are  committed on state land, water,                                                               
and land  and water or  that are  related to water  management or                                                               
dam  and reservoir  safety; amending  Rule 8(b),  Alaska District                                                               
Court  Rules   of  Criminal  Procedure;  and   providing  for  an                                                               
effective  date."    [Included   in  members'  packets  was  CSHB                                                               
2:46:27 PM                                                                                                                    
HEATH HILYARD,  Staff to Representative Carl  Gatto, Alaska State                                                               
Legislature, on  behalf of Representative Gatto,  co-chair of the                                                               
House Resources Standing Committee,  sponsor of HB 194, commented                                                               
that  the  bill was  a  carry  over  from the  prior  legislative                                                               
session, with one additional proposed  change.  The Department of                                                               
Public Safety  (DPS) requested  an update of  the fine  level for                                                               
non-criminal violations.   The fine level had  not been increased                                                               
in approximately 30  years, and so the concern was  that the fine                                                               
structure was not currently robust  enough to act as a deterrent.                                                               
There were also  some misdemeanor fines associated  with fish and                                                               
game  violations, which  the  Alaska Department  of  Fish &  Game                                                               
(ADF&G) said had not been  increased, although similar violations                                                               
from other  departments had  been increased.   He  continued that                                                               
this  lead to  discussions  with Department  of  Law (DOL)  which                                                               
resulted  in a  request  to  review and  update  all sections  of                                                               
statute that had  these similar fine structures.   He referred to                                                               
the  sectional statute  index included  in the  members' packets,                                                               
which outlined  the basic component  of each statute  the various                                                               
sections of the bill propose to change.                                                                                         
MR. HILYARD mentioned that the  greatest amount of discussion had                                                               
been  on  Section  37  -the  aforementioned  additional  proposed                                                               
change- which  refers to the penalties  and enforcement authority                                                               
of the Department of Natural Resources  (DNR).  The DNR asked for                                                               
an  extension of  its penalty  and enforcement  authority to  now                                                               
cover  all  the  lands  over  which the  DNR  has  oversight  and                                                               
management.    He  also  offered  to  comment  on  some  proposed                                                               
amendments  in  members'  packets  pertaining to  the  powers  of                                                               
police officers.                                                                                                                
CHAIR RAMRAS asked whether it is  fair to say the bill deals with                                                               
updating penalties and enforcement.                                                                                             
MR. HILYARD responded this was correct.                                                                                         
2:51:10 PM                                                                                                                    
DICK  MYLIUS,  Acting  Director,   Central  Office,  Division  of                                                               
Mining, Land  and Water, Department  of Natural  Resources (DNR),                                                               
stated that  the main reason for  Section 37 is that  the primary                                                               
means  of enforcement  of regulations  on state  land is  a civil                                                               
procedure.  If a violation is  detected, the offender is asked to                                                               
stop and if they do not comply,  then the officer has to have the                                                               
attorney general send  the offender a letter because  there is no                                                               
statutory provision for field citation;  this bill would give the                                                               
DNR  the authority  to issue  such  citations.   The Division  of                                                               
Alaska State  Troopers has also  commented that it does  not have                                                               
the authority to issue citations on DNR land.                                                                                   
CHAIR RAMRAS relayed  that a Knik Arm public  recreation bill was                                                               
passed last year, and mentioned  that the commissioner of the DPS                                                               
recently  met   with  Representative   Stoltze  to   address  the                                                               
lawlessness that is now going  on in that public recreation area.                                                               
Chair  Ramras   suggested  that  the  biggest   weapon  that  law                                                               
enforcement now had is, "stop or I'll send you a letter."                                                                       
MR.  MYLIUS  stated that  this  is  correct  with regard  to  the                                                               
enforcement   authority   for   a   division   employee.      The                                                               
aforementioned legislation for the  Knik Public Use area provided                                                               
for  stronger enforcement  authority, but  this was  only 230,000                                                               
acres out  of 93 million  acres that was  state owned.   The Knik                                                               
Public   Use   legislation    triggered   the   discussion   with                                                               
Representative Gatto regarding the  lack of enforcement authority                                                               
in the  field and  so Representative Gatto  proposed to  add this                                                               
change.   Mr. Mylius mentioned there  was one change made  in the                                                               
House Resources  Standing Committee because members  did not want                                                               
division  staff  to have  the  authority  to arrest  people,  but                                                               
instead only wanted police officers  to have that authority.  The                                                               
problem,  however, was  that a  previous draft  of the  bill from                                                               
House  Resources Standing  Committee had  agreed for  both police                                                               
officers and state  park rangers to have that  authority on other                                                               
state lands.   When  HB 194  returned from  legislative drafting,                                                               
however, the bill limited this authority to police officers.                                                                    
REPRESENTATIVE  GRUENBERG   referred  to   the  statutes   to  be                                                               
repealed,  via  Section  43,  and said  he  was  concerned  about                                                               
repealing AS 41.23.220(b), which states:                                                                                        
     (b) The supreme court shall  establish by order or rule                                                                    
     a schedule of bail amounts  for violations under (a) of                                                                    
     this section  that allow the disposition  of a citation                                                                    
     without a court appearance.                                                                                                
REPRESENTATIVE GRUENBERG  pondered whether  this will  repeal the                                                               
Alaska   Supreme  Court's   authority  generally,   and  why   AS                                                               
41.23.220(b)  is being  repealed, given  that it  now allows  the                                                               
court to set the bail amounts.                                                                                                  
2:57:26 PM                                                                                                                    
JOHN  BAKER,   Assistant  Attorney  General,   Natural  Resources                                                               
Section,  Civil Division  (Anchorage), Department  of Law  (DOL),                                                               
responded that the  intent is to "have a  more comprehensive bail                                                               
forfeiture  schedule  statutory  provision  that  would  make  AS                                                               
41.23.220(b) unnecessary."                                                                                                      
REPRESENTATIVE GRUENBERG  raised a concern that  Section 37 would                                                               
define as peace officers people  who are currently not defined as                                                               
peace officers under  Title 1.  He asked,  therefore, whether the                                                               
language  in Section  37 would  invest people  who are  currently                                                               
simply  employees  of the  department  with  more authority  than                                                               
would be desirable.                                                                                                             
MR. BAKER  offered his understanding that  the generic definition                                                               
of peace  officer is  already very broad,  much broader  than the                                                               
definition  of  police  officer,  as  has  been  noted  in  prior                                                               
attorney general opinions.   He said he did  not believe [Section                                                               
37] would  be broadening  that definition of  peace officer.   He                                                               
surmised that the  question would be which  individual has arrest                                                               
authority versus citation authority.                                                                                            
REPRESENTATIVE  SAMUELS  asked for  an  example  of the  type  of                                                               
problem that the DNR is attempting to address.                                                                                  
MR. MYLIUS responded  this could be someone blocking  a trail, or                                                               
squatting  on state  land.   [Section  37]  would give  [division                                                               
staff] the ability to give a citation in the field.                                                                             
REPRESENTATIVE SAMUELS asked if  the department is speaking about                                                               
park rangers or  maintenance employees, and who would  be able to                                                               
issue a  citation.  He continued,  wanting to know if  this would                                                               
be addressed in regulations.                                                                                                    
MR.   MYLIUS  allowed   that  it   would  be   addressed  through                                                               
regulations, and  it would be  an employee  who is trained  to do                                                               
enforcement.    The  department   would  adopt  regulations  that                                                               
describe the  specific violations  that could  receive citations,                                                               
and doesn't  envision having  armed employees;  furthermore, only                                                               
certain employees would be trained to do enforcement.                                                                           
REPRESENTATIVE SAMUELS  commented that  the division  already had                                                               
the ability  to call on  the troopers.   He asked if  training is                                                               
addressed in the bill.                                                                                                          
MR.  MYLIUS answered  that the  bill does  not expressly  address                                                               
training, but he does envision that there would be training.                                                                    
REPRESENTATIVE  COGHILL said  the "qualification"  provision, the                                                               
"authorized by  the commissioner"  provision, and  the definition                                                               
of police officer all troubled him.                                                                                             
MR. HILYARD  provided that the  statute which Mr.  Baker referred                                                               
to was  for a peace officer,  which had a different  meaning than                                                               
police officer.   He said  he understood that park  rangers could                                                               
be  considered peace  officers.   He further  commented that  the                                                               
DNR's  concern  is  that  the  park  rangers'  authority  not  be                                                               
compromised, and that park rangers qualify as peace officers.                                                                   
3:06:17 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  referred   to  a  proposed  conceptual                                                               
amendment he  had written and  distributed, which  read [original                                                               
punctuation provided]:                                                                                                          
     Page 9, lines 25-26                                                                                                        
     Page 10, line 3                                                                                                            
     Insert after "AS 46.17,"                                                                                                   
      and execute a warrant or other process issued by an                                                                   
     officer or officer of competent jurisdiction and                                                                       
MR. MYLIUS  responded that this proposed  amendment would clarify                                                               
that issue.                                                                                                                     
REPRESENTATIVE  GRUENBERG continued  and  noted that  he has  the                                                               
same concerns  as Representative Coghill with  regard to benefits                                                               
for  peace   officers,  and   the  corresponding   definition  of                                                               
designated  DNR  employees  as   peace  officers  under  HB  194.                                                               
Representative Gruenberg pointed  out that Section 37  on page 9,                                                               
line 27, authorized individuals mentioned  on page 9, lines 18-20                                                               
to  "administer  or take  an  oath,  affirmation, or  affidavit;"                                                               
however,  AS  09.63.010  only  lists   certain  people  who  were                                                               
authorized  to give  those oaths.   He  opined that  to have  DNR                                                               
employees authorized to  give these oaths, it  would be necessary                                                               
to have a  conforming amendment in that other statute.   He asked                                                               
that  the bill  be held  over to  allow him  time to  review this                                                               
MR.  MYLIUS offered  that state  park rangers  are currently  not                                                               
included  in  the  20-year  benefits   programs,  which  is  only                                                               
available for state troopers and police officers.                                                                               
REPRESENTATIVE  COGHILL  mentioning  that an  advisory  committee                                                               
would be  via language  on page  10, lines  14-17, noted  a legal                                                               
issue he would like to explore.                                                                                                 
MR. MYLIUS  responded this  language was  taken from  the current                                                               
procedures for state parks for doing the exact same thing.                                                                      
MR.  BAKER  added  that  the language  was  taken  verbatim  from                                                               
existing  AS   41.21.960,  which   includes  the   procedure  for                                                               
establishing the  bail forfeiture schedule.   This is boilerplate                                                               
language  that  exists  in  other   statutes  and  has  been  the                                                               
procedure  the legislature  has chosen;  it has  been a  workable                                                               
REPRESENTATIVE COGHILL asked for a  history of the workability of                                                               
such advisory committees, how many  times they have convened, and                                                               
whether there has been any tension within such groups.                                                                          
MR. BAKER relayed  that he would research that  issue adding that                                                               
the  bail  forfeiture  schedules  are set  on  regular  committee                                                               
schedules; he  offered his understanding that  such meetings have                                                               
not been difficult or contentious.                                                                                              
3:12:29 PM                                                                                                                    
WYN  MENEFEE, Chief  of Operations,  Central Office,  Division of                                                               
Mining, Land  and Water, Department  of Natural  Resources (DNR),                                                               
explained that park rangers, with  the authority of going through                                                               
the  "bail  schedule set  up,"  convened  every year,  made  some                                                               
readjustments   [to   the   bail  schedule],   and   took   these                                                               
readjustments to the Alaska Supreme  Court.  This system has been                                                               
very workable for the state  park rangers, who have the authority                                                               
to make  arrests and issue  citations and warrants,  because they                                                               
are trained and certified to that level.                                                                                        
REPRESENTATIVE  COGHILL  sought   confirmation  that  these  park                                                               
rangers convened, set  bail amounts at the outset,  and then have                                                               
the bail amounts adjusted without convening after that.                                                                         
MR. MENEFEE  offered his  understanding that  they did  go before                                                               
the  Alaska   Supreme  Court  every   year,  but  they   did  not                                                               
necessarily convene  the committee every  year when they  made an                                                               
REPRESENTATIVE COGHILL pointed out that  the language on page 10,                                                               
line 15, said  "shall appoint and consult"  when establishing and                                                               
amending the schedule of bail.                                                                                                  
MR.   MENEFEE  offered   that  this   might   be  performed   via                                                               
3:15:01 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  commented it  is  his  own feeling  to                                                               
triple check that the [bill]  title covers every provision of the                                                               
CHAIR RAMRAS reflected  there would obviously be  a few questions                                                               
with this issue.   He noted that he also had  a few amendments to                                                               
MR. HILYARD  asked whether  the sponsor should  prepare a  CS for                                                               
the committee, or  whether the committee would  prefer to address                                                               
concerns via amendments.                                                                                                        
CHAIR RAMRAS  surmised that  simply altering  CSHB 194  (RES) via                                                               
amendment  should be  workable, unless  there are  title changes.                                                               
In conclusion,  he recapped that  the primary  concerns expressed                                                               
thus  far were  the nature  of the  training, and  the method  of                                                               
selection for these new DNR enforcement employees.                                                                              
REPRESENTATIVE   COGHILL  added   a  request   of  accountability                                                               
measures for the enforcement employees.                                                                                         
CHAIR RAMRAS closed public testimony on HB 194.                                                                                 
[HB 194 was held over.]                                                                                                         
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 3:19 p.m.                                                                 

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