Legislature(2005 - 2006)BUTROVICH 205

04/18/2005 08:30 AM Senate JUDICIARY


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08:36:32 AM Start
08:37:33 AM Confirmation Hearing: Board of Governors of the Alaska Bar: Mr. Joseph N. Faulhaber
08:41:34 AM Confirmation Hearing: Board of Governors of the Alaska Bar: Ms. Terry L. Thurbon
09:08:34 AM SB154
10:20:41 AM SB86
10:29:04 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Confirmations: TELECONFERENCED
Board of Governors of the Alaska Bar
Joseph N. Faulhaber
Chief Administrative Law Judge
Terry L. Thurbon
+ SB 134 POLICE INVESTIGATION STANDARDS/ARRESTS TELECONFERENCED
Scheduled But Not Heard
<Above Bill Hearing Canceled>
+ SB 154 JUVENILE DELINQUENCY PROCEEDINGS TELECONFERENCED
Moved CSSB 154(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 86 STATE/MUNI LIABILITY FOR ATTORNEY FEES
Moved CSSB 86(CRA) Out of Committee
            SB 154- JUVENILE DELINQUENCY PROCEEDINGS                                                                        
                                                                                                                                
9:08:34 AM                                                                                                                    
CHAIR RALPH SEEKINS announced SB 154 to be up for consideration.                                                                
                                                                                                                                
Ms. HEATHER  BRAKES, staff to  Senator Therriault,  introduced SB
154. SB  154 would improve  the state's ability to  hold juvenile                                                               
offenders accountable.  It would also increase  efficiency of the                                                               
juvenile justice  system by allowing telephonic  hearings in some                                                               
court  proceedings.  SB  154  addresses  a  loophole  and  places                                                               
jurisdiction for  an adult discovered  to have committed  a crime                                                               
while under the age of 18.                                                                                                      
                                                                                                                                
9:11:22 AM                                                                                                                    
MS.  PATTY   WARE,  director,   Division  of   Juvenile  Justice,                                                               
Department of  Corrections (DOC), voiced  support of SB  154. She                                                               
advised the  committee of  two cases  in Kenai  involving serious                                                               
charges relating to sexual abuse  of a minor. The Alaska Superior                                                               
Court,  in both  cases,  ruled there  was  no legal  jurisdiction                                                               
either  for the  juvenile justice  system or  the criminal  court                                                               
system. The first  instance was of a 19 year  old who committed a                                                               
sexual assault when he was 17.                                                                                                  
                                                                                                                                
9:13:05 AM                                                                                                                    
The  second situation  was  of  a 20  year  old  alleged to  have                                                               
committed  crimes when  he was  15  and 17.  The Alaska  Superior                                                               
Court dismissed both cases due  to lack of jurisdiction. She read                                                               
a  quote from  the Alaska  Superior  Court ruling  on the  second                                                               
case:                                                                                                                           
     The  court recognizes  the  state's  concern that  this                                                                    
     interpretation can allow  juvenile criminal activity to                                                                    
     go unpunished if the crime  did not come to light until                                                                    
                              thth                                                                                              
     after the juvenile's  18  or 19   birthday. This result                                                                    
     is not of the court's  making. For whatever reason, the                                                                    
     Legislature has mandated  that juvenile jurisdiction in                                                                    
     all  cases  comes  to  an   end  at  the  time  of  the                                                                    
                  th                                                                                                            
     juvenile's 19   birthday  unless the  juvenile consents                                                                    
     to  a longer  period.  The resolution  of this  problem                                                                    
     rests not with the court, but with the Legislature.                                                                        
                                                                                                                                
9:14:47 AM                                                                                                                    
SENATOR HOLLIS FRENCH asked whether either order was appealed.                                                                  
                                                                                                                                
MS. WARE admitted  she was not sure.  Section 1 of SB  154 adds a                                                               
new  subsection to  the delinquency  statutes establishing  legal                                                               
jurisdiction. Section 2 establishes  applicability of the rest of                                                               
the delinquency  laws to  this particular  class of  minor, which                                                               
are persons over the  age of 18 by the time  they come before the                                                               
court.                                                                                                                          
                                                                                                                                
9:17:10 AM                                                                                                                    
MR. TONY  NEWMAN, program officer,  Division of  Juvenile Justice                                                               
demonstrated a visual  presentation on a flip  chart that related                                                               
to juvenile and  adult offense jurisdictions. There  are a couple                                                               
of instances  where juvenile offenders  are managed in  the adult                                                               
system, such as murder and  armed robbery. Another way a juvenile                                                               
can be  forwarded into  the adult criminal  system is  through AS                                                               
47.12.100 where  the state must  demonstrate the juvenile  is not                                                               
amenable  to  treatment.  Dual  sentencing  provisions  apply  to                                                               
serious  offenses  such  as  repeated  felony  crimes  where  the                                                               
district attorney  can seek  both a  juvenile and  adult sentence                                                               
for a minor.                                                                                                                    
                                                                                                                                
9:20:35 AM                                                                                                                    
SB  154  addresses situations  where  crimes  are not  discovered                                                               
until after the person has turned  18 and will give the state the                                                               
opportunity for restitution.                                                                                                    
                                                                                                                                
9:24:03 AM                                                                                                                    
SENATOR FRENCH asked  whether the first move would be  to ask for                                                               
the discretionary waiver into adult court.                                                                                      
                                                                                                                                
MR. NEWMAN said it would depend on the offense and the offender.                                                                
                                                                                                                                
9:25:57 AM                                                                                                                    
SENATOR  FRENCH asked  whether subsequent  hearings  would be  in                                                               
adult court.                                                                                                                    
                                                                                                                                
MR. NEWMAN answered yes.                                                                                                        
                                                                                                                                
SENATOR  FRENCH  asked  whether  SB 154  would  grant  the  state                                                               
jurisdiction of an adult in juvenile court.                                                                                     
                                                                                                                                
9:27:34 AM                                                                                                                    
MR. NEWMAN responded yes.                                                                                                       
                                                                                                                                
9:28:51 AM                                                                                                                    
MS. WARE continued the second half  of SB 154 allows the juvenile                                                               
justice  system to  use  state resources.  Section  9 proposes  a                                                               
change to  the delinquency rules. It  specifies specific hearings                                                               
where a juvenile has a right  to be physically present. It allows                                                               
for telephonic  presence. Currently the DOC  spends over $200,000                                                               
a year transporting young people to court.                                                                                      
                                                                                                                                
9:32:13 AM                                                                                                                    
SENATOR  FRENCH asked  where the  evidentiary  hearing would  fit                                                               
into the scheme.                                                                                                                
                                                                                                                                
MS. WARE said  those types of issues  happen fairly infrequently.                                                               
She emphasized  they would not  request a telephonic  hearing for                                                               
serious issues.                                                                                                                 
                                                                                                                                
9:34:57 AM                                                                                                                    
MS. ANNE CARPENETI,  Department of Law (DOL),  commented a motion                                                               
hearing is  not specified  in SB  154 as  a proceeding  where the                                                               
juvenile  has to  be present.  Paragraph 3  of the  rule provides                                                               
that  appearance   by  television   is  not  allowed   under  any                                                               
circumstances   in  a   proceeding  where   sworn  testimony   is                                                               
presented.  A motion  hearing would  be supported  by testimonial                                                               
evidence. She said that might need to be added into Paragraph 1.                                                                
                                                                                                                                
SENATOR FRENCH moved Amendment 1.                                                                                               
     Page 7, line 6; after the word "television" add the words                                                                  
     "or telephone."                                                                                                            
Hearing no objections, the motion carried.                                                                                      
                                                                                                                                
9:36:52 AM                                                                                                                    
SENATOR GENE  THERRIAULT asked  Ms. Ware the  number of  cases SB
154 would apply.                                                                                                                
                                                                                                                                
MS. WARE  answered she would get  back to the committee  with the                                                               
information.                                                                                                                    
                                                                                                                                
9:38:56 AM                                                                                                                    
MS.  LINDA  WILSON,  deputy   director,  Alaska  Public  Defender                                                               
Agency, testified  she is  quite familiar with  this area  of law                                                               
and offered  to answer  questions. She guessed  there would  be a                                                               
large number of cases that would fall under SB 154.                                                                             
                                                                                                                                
9:43:12 AM                                                                                                                    
MS. WILSON  expressed concern over telephonic  participation of a                                                               
juvenile. Juveniles  often don't understand what  is happening to                                                               
them. She said  they need their attorney present and  they have a                                                               
right to have  them present during hearings  because the hearings                                                               
are critical  and address liberty.  She disputed the  zero fiscal                                                               
notes  saying the  cost will  shift  to another  agency, such  as                                                               
public defender travel  costs. The attorney, the  client, and the                                                               
judge being in the same room create a far greater impact.                                                                       
                                                                                                                                
9:45:12 AM                                                                                                                    
SENATOR THERRIAULT asked  Ms. Wilson whether she  would travel to                                                               
be  next to  her  client, no  matter how  brief  the hearing  was                                                               
anticipated to be.                                                                                                              
                                                                                                                                
MS. WILSON  responded not  in every  case. Allowing  the juvenile                                                               
the  right  to  waive  presence  at  a  hearing  is  appropriate.                                                               
Allowing the Department of Law  the right to exclude the juvenile                                                               
is worrisome.                                                                                                                   
                                                                                                                                
SENATOR  FRENCH asked  whether  most  contested hearings  involve                                                               
sworn testimony.                                                                                                                
                                                                                                                                
MS. WILSON  answered sometimes detention  review hearings  can be                                                               
contested but not necessarily evidentiary.                                                                                      
                                                                                                                                
SENATOR THERRIAULT  asked committee  members to  consider zeroing                                                               
out the indeterminate fiscal note. He asked Ms. Ware to comment.                                                                
                                                                                                                                
9:48:18 AM                                                                                                                    
MS. WARE remarked  the proposed changes are  addressing the types                                                               
of hearings where a public defender would not travel.                                                                           
                                                                                                                                
CHAIR SEEKINS  asked whether there  existed an  electronic method                                                               
where  the  juvenile and  the  attorney  could communicate  on  a                                                               
secure line.                                                                                                                    
                                                                                                                                
MS. WARE  said due  to the  size and  remoteness of  Alaska, many                                                               
times the primary communication is telephonic.                                                                                  
                                                                                                                                
SENATOR THERRIAULT offered  the hearing could be  recessed so the                                                               
juvenile  and attorney  could communicate  through another  phone                                                               
line.                                                                                                                           
                                                                                                                                
9:50:39 AM                                                                                                                    
MS. WILSON  advised there is  often not another phone  line. Many                                                               
times juveniles won't interrupt a proceeding to ask a question.                                                                 
                                                                                                                                
CHAIR SEEKINS  asked whether  the attorneys  properly communicate                                                               
with the  client to make sure  they understand that they  can ask                                                               
questions.                                                                                                                      
                                                                                                                                
MS. WILSON  stated sometimes they don't  remember. She maintained                                                               
it  is important  for the  attorney to  be physically  present in                                                               
order to initiate breaks to explain things and answer questions.                                                                
                                                                                                                                
9:52:36 AM                                                                                                                    
SENATOR  FRENCH  asked  Ms.  Wilson  the  most  substantive  type                                                               
hearing where  she felt  SB 154 would  prevent attendance  by the                                                               
juvenile.                                                                                                                       
                                                                                                                                
MS. WILSON  divulged it would  be the detention  review hearings,                                                               
which is similar to a bail hearing.                                                                                             
                                                                                                                                
MS. WARE  agreed every court hearing  is important. SB 154  is an                                                               
attempt  to propose  an  option  for the  judge  to consider  the                                                               
cost/benefit analysis.                                                                                                          
                                                                                                                                
9:56:09 AM                                                                                                                    
MS. CARPENETI  added the  rule provides the  judge is  the entity                                                               
who decides  whether the person  needs to  be there. The  DOL and                                                               
the DOC  are not excluding the  child; they are asking  the judge                                                               
to decide whether it is essential  for the child to be physically                                                               
present.                                                                                                                        
                                                                                                                                
SENATOR FRENCH articulated  the closer the call,  the more likely                                                               
the judge would make sure all parties are in the same room.                                                                     
                                                                                                                                
MS. WARE agreed.                                                                                                                
                                                                                                                                
9:57:31 AM                                                                                                                    
CHAIR SEEKINS closed public testimony.                                                                                          
                                                                                                                                
SENATOR THERRIAULT moved the  Senate Standing Judiciary Committee                                                               
draft  a zero  fiscal note  for  the office  of public  defender.                                                               
Hearing no objections, the motion carried.                                                                                      
                                                                                                                                
SENATOR  THERRIAULT  moved  CSSB  154(JUD)  from  committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         

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