Legislature(2007 - 2008)BELTZ 211

02/01/2007 09:00 AM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Rescheduled from 01/30/07 --
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 36 SENTENCING FOR ALCOHOL-RELATED CRIMES TELECONFERENCED
Scheduled But Not Heard
+= SB 45 PEACE OFFICER CONVICTED OF MURDER TELECONFERENCED
Moved CSSB 45(STA) Out of Committee
+= SB 19 EXEC. BRANCH ETHICS:INTERESTS & ACTIONS TELECONFERENCED
Moved CSSB 19(STA) Out of Committee
+= SB 20 LEGISLATIVE DISCLOSURES TELECONFERENCED
Moved CSSB 20(STA) Out of Committee
                                                                                                                                
                 SB  20-LEGISLATIVE DISCLOSURES                                                                             
                                                                                                                                
9:47:09 AM                                                                                                                    
CHAIR MCGUIRE announced the consideration of SB 20.                                                                             
                                                                                                                                
JOHN  FARLEIGH,   Anchorage,  said  he  is   a  fourth-generation                                                               
Alaskan, and  he is speaking  for himself. He said  his testimony                                                               
addresses  the  ethics  of  any   policy  maker,  legislative  or                                                               
executive,  and not  just  a specific  bill.  He said  testifiers                                                               
mention their  length of  residency in  Alaska, implying  that an                                                               
opinion  is more  valuable  for  those who  have  been in  Alaska                                                               
longer, but  "I personally don't  subscribe to that  theory." But                                                               
he noted  a recent  television news interview  of a  young couple                                                               
who had just  moved to Alaska and had used  the term "back home,"                                                               
referring  to  where  they  came  from. "For  me,  as  a  fourth-                                                               
generation Alaskan, this is back home; I have no other home."                                                                   
                                                                                                                                
MR.  FARLEIGH said  he  is deeply  embarrassed  that the  federal                                                               
government has  to clean  up Alaska's mess.  He noted  that there                                                               
have been obvious signs for  years "about things that didn't seem                                                               
right,  and  yet  nothing  was   done"  until  the  FBI  came  to                                                               
investigate  the  legislature. "It's  embarrassing  to  me as  an                                                               
Alaskan that  we're viewed  as a  corrupt state."  He said  it is                                                               
time to  change that. Any policy  maker should be held  to a high                                                               
standard,  and even  the appearance  of impropriety  needs to  be                                                               
dealt with.  "We need  to be  able to  trust our  government," he                                                               
stated.  He said  that  suggestions reported  in  the news  sound                                                               
good,   including  not   allowing  legislative   spouses  to   be                                                               
lobbyists,  but it  should be  expanded to  any immediate  family                                                               
member  because they  are all  possible conduits  for bribes  and                                                               
should be under scrutiny. His son  noticed the warning on a movie                                                               
he watched  last night that  a person  could spend five  years in                                                               
jail  for copying  a movie.  He  said his  son then  asked why  a                                                               
politician who  breaks the  law could be  fined only  $5,000. "If                                                               
our policy makers sell us out  for their own benefit, there ought                                                               
to  be significant  penalties,"  including  six-figure fines  and                                                               
jail time for egregious violations, he opined.                                                                                  
                                                                                                                                
9:51:26 AM                                                                                                                    
MR.  FARLEIGH  said  the  fines  are  not  adequate  to  dissuade                                                               
policymakers from operating for their  own benefit instead of the                                                               
benefit of all Alaskans.                                                                                                        
                                                                                                                                
CHAIR MCGUIRE said she appreciated the testimony.                                                                               
                                                                                                                                
STUART THOMPSON,  Ketchikan and Wasilla, said  he represents only                                                               
himself,  and  he  appreciates the  help  from  Senator  French's                                                               
office. He  noted that  he had  a 4.5-minute  statement regarding                                                               
all ethics  legislation, including SB  20. He told  the committee                                                               
that lawmakers are  not inherently evil, but they  are humans who                                                               
need  support   to  resist  temptations  that   appeal  to  their                                                               
imperfections. He  said the natural  imperfections of  people are                                                               
why government  is even necessary.  "How to govern  the governors                                                               
is what  defines the form of  government; in other words,  a form                                                               
of government  is any design  for minimizing corruption  and poor                                                               
administration by  those wielding government powers,"  he stated.                                                               
He  said   that  makes  the  conceptual   understandings  of  the                                                               
constitutions,  and  their  philosophical foundations,  the  most                                                               
powerful resource  for dealing with political  corruption, "short                                                               
of  the  supreme being."  He  suggested  that lawmakers  use  the                                                               
following  wisdom  of  Socrates: inadequate  comprehension  of  a                                                               
subject's   key  words   prevents   the   affected  person   from                                                               
understanding  the subject  well enough  to constructively  apply                                                               
it. He  said the  dictionary provides  five easy  definitions for                                                               
"corrupt."                                                                                                                      
                                                                                                                                
[The testimony was interrupted by a busy signal.]                                                                               
                                                                                                                                
9:54:10 AM                                                                                                                    
CHAIR MCGUIRE said  a copy of Mr. Thompson's testimony  is in the                                                               
committee packet, "so it will  be included into the public record                                                               
indelibly."                                                                                                                     
                                                                                                                                
9:54:29 AM                                                                                                                    
CHAIR  MCGUIRE closed  public  testimony on  SB  20. She  offered                                                               
Amendment 1, labeled 25-LS0161\M.4, Wayne, as follows:                                                                          
                                                                                                                                
     Page 1, lines 1 - 2:                                                                                                       
          Delete "of information about certain income                                                                         
     received as compensation for personal services"                                                                          
                                                                                                                                
     Page 1, following line 5:                                                                                                  
          Insert a new bill section to read:                                                                                    
        "* Section  1. AS 24.60 is  amended by adding  a new                                                                
     section to article 2 to read:                                                                                              
          Sec.   24.60.115.   Disclosure   required   of   a                                                                  
     legislator,  legislative employee  or public  member of                                                                  
     the  committee after  final day  of  service. A  person                                                                  
     serving  as  a  legislator,  legislative  employee,  or                                                                    
     public member  of the committee  shall, not  later than                                                                    
     90 days after  the person's final day  of service, file                                                                    
     a  disclosure  of  every matter  that  was  subject  to                                                                    
     disclosure  under this  chapter  while  the person  was                                                                    
     serving."                                                                                                                  
                                                                                                                                
     Page 1, line 6:                                                                                                            
          Delete "Section 1"                                                                                                  
          Insert "Sec. 2"                                                                                                     
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 2, following line 21:                                                                                                 
          Insert a new bill section to read:                                                                                    
        "*  Sec.  3. The  uncodified  law  of the  State  of                                                                
     Alaska is amended by adding a new section to read:                                                                         
          APPLICABILITY. (a) Section 1 of this Act applies                                                                      
     to a person serving as  a legislator who leaves service                                                                    
     on or  after the effective date  of this Act, and  to a                                                                    
     person  who  is  not  a  legislator  but  served  as  a                                                                    
     legislator  between April 9,  2006,  and the  effective                                                                    
     date of this Act.                                                                                                          
          (b)  A person who is not a legislator on the                                                                          
     effective  date  of  this  Act  but  who  served  as  a                                                                    
     legislator  between April 9,  2006,  and the  effective                                                                    
     date of this Act shall  make the disclosure required by                                                                    
     AS 24.60.115, added  by sec. 1  of this Act,  within 90                                                                    
     days after the effective date of this Act."                                                                                
                                                                                                                                
     Renumber the following bill section accordingly.                                                                           
                                                                                                                                
                                                                                                                                
CHAIR MCGUIRE said Amendment 1  closes a loophole that appears to                                                               
be in statute. A lawmaker has  to disclose any income over $1000,                                                               
and the  amendment makes it  clear that  during the time  after a                                                               
lawmaker  is defeated  or  not running  again,  the reporting  is                                                               
still required. She said she didn't  know how it has been done in                                                               
the past,  but this closes the  gap and makes it  clear that "you                                                               
can't spend  your last  year in office…doing  what you  want…as a                                                               
legislator  and then  not disclosing  that income  received." The                                                               
more  controversial  part  of  the   amendment  (taken  from  the                                                               
governor's bill)  is the inclusion of  legislative employees. The                                                               
amendment  is  not  controversial  on  the  whole  but  requiring                                                               
legislative  employees  to  be  subject  to  the  same  financial                                                               
disclosures as members might be, she noted.                                                                                     
                                                                                                                                
9:57:14 AM                                                                                                                    
SENATOR  GREEN said  employees should  not  be in  the bill.  She                                                               
asked  who "the  public member  of the  committee," as  listed in                                                               
line 9, refers to.                                                                                                              
                                                                                                                                
SENATOR FRENCH  said he believes  that refers to the  five public                                                               
members of the Select Committee on Ethics.                                                                                      
                                                                                                                                
9:57:50 AM                                                                                                                    
SENATOR   STEVENS  asked   about  the   reporting  schedule   for                                                               
legislators.                                                                                                                    
                                                                                                                                
CHAIR  MCGUIRE said  a  legislator  reports on  March  15 and  it                                                               
covers  the preceding  fiscal year,  so  members who  are on  the                                                               
fourth year of a four-year  term, "they're no longer a lawmaker."                                                               
She said she thinks it's been  unclear, as reported by the ethics                                                               
advisor, because  some members  report and  some don't.  It would                                                               
clarify  that all  members, even  if they  have left  office, are                                                               
required to report.                                                                                                             
                                                                                                                                
SENATOR  FRENCH said  it also  closes  the gap  in early  January                                                               
prior to  the swearing in  of new  members that has  been outside                                                               
the disclosure requirements.                                                                                                    
                                                                                                                                
9:59:22 AM                                                                                                                    
SENATOR  STEVENS  said  there  is  often  a  special  session  in                                                               
November, so  why not leave  the March 15 reporting  date, rather                                                               
than 90 days  after a person's final day? He  said he understands                                                               
the testimony, but  there is a real onus on  a legislator to keep                                                               
all of these reporting dates in mind.                                                                                           
                                                                                                                                
10:00:31 AM                                                                                                                   
CHAIR MCGUIRE said it doesn't cover  90 days after serving, it is                                                               
saying  that, no  later  than  90 days  after  the  final day  of                                                               
service, the person  must file. For example, a  lawmaker that was                                                               
defeated this  year would  have been holding  office right  up to                                                               
January 16,  and "what we want  to do is say  that the disclosure                                                               
is going to go  all the way up until that day, so  … on the fifth                                                               
or sixth of  January, while you are still technically  … a member                                                               
of the  legislature, [you  couldn't] get  some kind  of lucrative                                                               
contract and then use this loophole to fail to disclose it."                                                                    
                                                                                                                                
SENATOR STEVENS said the disclosure would still be on March 15.                                                                 
                                                                                                                                
SENATOR  FRENCH said  the  last day  of the  session  is not  the                                                               
operative date;  it is  the last  day that  one is  officially in                                                               
office.  He  said   he  is  trying  to  get   all  the  reporting                                                               
requirements lined up to one date.                                                                                              
                                                                                                                                
10:02:22 AM                                                                                                                   
DAN  WAYNE,   Attorney,  Legal  Services   Division,  Legislative                                                               
Affairs Agency,  said the select committee  on legislative ethics                                                               
looked at whether legislators should  report for that tail end of                                                               
their term.  Up until  recently there has  been advice  that they                                                               
need not,  because statute  states that a  provision of  the code                                                               
does  not apply  to  former legislators,  unless it  specifically                                                               
states  that  it  does.  So,  the code  was  interpreted  as  not                                                               
requiring them to  report. The ethics committee came  out with an                                                               
advisory   opinion  that   the   statute   does  require   former                                                               
legislators  and employees  to  report just  like everybody  else                                                               
with respect to  anything that happened while  they were serving.                                                               
But the misleading language still  exists. An advisory opinion is                                                               
not the same thing as a statute.                                                                                                
                                                                                                                                
MR. WAYNE  said the amendment covers  the 30 days before  the end                                                               
of  the regular  session to  the  beginning of  the next  regular                                                               
session. So everything is reported  on March 15. Some people were                                                               
not  reporting thinking  they didn't  have to  because they  were                                                               
leaving office. This statute would  say that all of those people,                                                               
in that time period between the  two sessions, would have 90 days                                                               
from the time of leaving service to file that report, he said.                                                                  
                                                                                                                                
SENATOR BUNDE  said it is 90  days after leaving service  and not                                                               
related  to the  session. He  noted an  occasion of  a legislator                                                               
coming  to  Juneau and  being  sworn  in  and getting  an  office                                                               
allowance and then  resigning. That's not ethical,  but people do                                                               
leave service  at other times  other than when  their replacement                                                               
is sworn in. A person could resign midterm, he stated.                                                                          
                                                                                                                                
10:07:53 AM                                                                                                                   
SENATOR FRENCH asked who is a legislative employee.                                                                             
                                                                                                                                
MR.  WAYNE  said anyone  who  is  on  the  state payroll  in  the                                                               
legislature and who is not a legislator.                                                                                        
                                                                                                                                
MR. WAYNE said it includes  pages, legislative staff, legislative                                                               
legal services, and everyone in the building he works in.                                                                       
                                                                                                                                
10:09:16 AM                                                                                                                   
CHAIR MCGUIRE said  the amendment was designed to  close the gap,                                                               
and the drafter took it right out of Governor Palin's bill.                                                                     
                                                                                                                                
SENATOR  FRENCH  moved  Amendment  1 to  Amendment  1  to  strike                                                               
legislative employee from lines 8 and 10.                                                                                       
                                                                                                                                
SENATOR BUNDE objected.  He said a page will likely  not become a                                                               
lobbyist, but  a chief of  staff may be  of concern. He  asked if                                                               
that person is already required to make a financial disclosure.                                                                 
                                                                                                                                
10:10:27 AM                                                                                                                   
CHAIR MCGUIRE said the committee doesn't want to go backward.                                                                   
                                                                                                                                
SENATOR FRENCH  said this is  not about  being a lobbyist  but an                                                               
annual financial disclosure of all  investments. It may be worthy                                                               
of a  separate discussion  for the  type of  legislative employee                                                               
with tremendous  influence, but this is  about annual disclosures                                                               
for all legislative employees, "and I need to be convinced."                                                                    
                                                                                                                                
SENATOR BUNDE said it is not something that needs to be pursued.                                                                
                                                                                                                                
CHAIR  MCGUIRE said  legislative  employees are  now required  to                                                               
report close  economic associations  as to roommates  or campaign                                                               
work.  She  asked  if removing  legislative  employees  from  the                                                               
amendment will take away anything that is now on the books.                                                                     
                                                                                                                                
10:12:14 AM                                                                                                                   
MR.  WAYNE  said  he  needs   to  clear  up  the  confusion.  The                                                               
governor's bill and SB 20  without the amendment are only talking                                                               
about  financial  disclosures  under  AS  24.60.200.  Legislative                                                               
employees are  not currently  required to  make those,  he added.                                                               
The loophole allowing people to  avoid disclosures during the gap                                                               
between sessions  was relevant  to everyone  including employees.                                                               
He noted the economic association and gift disclosures.                                                                         
                                                                                                                                
CHAIR  MCGUIRE  said  so  "this amendment  is  not  changing  the                                                               
statute with  respect to what legislative  employees are required                                                               
to  disclose…what  it's  doing  is  saying  that  whatever  those                                                               
disclosures are, as outlined in  Title 24, they remain, but we're                                                               
going to close the gap for them as well."                                                                                       
                                                                                                                                
10:13:48 AM                                                                                                                   
MR. WAYNE said he couldn't have said it any better.                                                                             
                                                                                                                                
DAVE JONES,  Senior Assistant  Attorney General,  Civil Division,                                                               
Opinions,  Appeals, and  Ethics, Department  of Law,  said SB  64                                                               
addresses this  issue in Section 3,  page 3, lines 7-11.  "In the                                                               
governor's bill we did not  extend the disclosure requirements to                                                               
legislative employees, but merely to the legislative director."                                                                 
                                                                                                                                
MR. WAYNE  said the way  he read the  governor's bill is  it only                                                               
dealt   with  the   financial  disclosure   requirements  of   AS                                                               
24.60.200,  and he  assumes that  was  why legislative  employees                                                               
were not added, because they  are not listed under the disclosure                                                               
requirement.  But the  governor is  also addressing  the loophole                                                               
and leaving legislative  employees out. What he  drafted would do                                                               
the  same  thing, but  it  would  also  close the  loophole  with                                                               
respect  to  reporting  requirements   under  other  sections  by                                                               
legislative  employees.  "Since  the legislative  director  is  a                                                               
legislative employee…"                                                                                                          
                                                                                                                                
10:15:34 AM                                                                                                                   
SENATOR FRENCH withdrew his amendment to Amendment 1.                                                                           
                                                                                                                                
SENATOR  STEVENS  withdrew  his  objection.  Hearing  no  further                                                               
objections, Amendment 1 carried.                                                                                                
                                                                                                                                
CHAIR MCGUIRE asked about the  spousal lobbying provision, "and I                                                               
think it probably is  a good one; I just don't  know how to draft                                                               
it on the fly." She asked for help from Mr. Wayne.                                                                              
                                                                                                                                
10:16:30 AM                                                                                                                   
MR. WAYNE said he couldn't come up with it "on the fly."                                                                        
                                                                                                                                
CHAIR MCGUIRE  moved Amendment  2, labeled  25-LS0161\M.3, Wayne,                                                               
as follows:                                                                                                                     
                                                                                                                                
     Page 1, line 4, following "Act":                                                                                         
          Insert "relating to the applicability of the                                                                        
     Legislative Ethics Act;"                                                                                                 
                                                                                                                                
     Page 1, following line 5:                                                                                                  
     Insert a new bill section to read:                                                                                         
        "* Section 1. AS 24.60.020(a) is amended to read:                                                                   
          (a)  Except as otherwise provided in this                                                                             
     subsection,  this chapter  applies to  a member  of the                                                                    
     legislature, to  a legislative employee, and  to public                                                                    
     members of  the committee. This chapter  does not apply                                                                    
     to                                                                                                                         
               (1)  a former member of the legislature or                                                                       
        to a person formerly employed by the legislative                                                                        
     branch of government unless a [THE] provision of this                                                              
     chapter specifically states that it applies;                                                                           
               (2)  a person elected to the legislature who                                                                     
         at the time of election is not a member of the                                                                         
     legislature."                                                                                                              
                                                                                                                                
     Page 1, line 6:                                                                                                            
          Delete "Section 1"                                                                                                  
          Insert "Sec. 2"                                                                                                     
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
MR. WAYNE noted the wording  problem in the applicability section                                                               
of  the Legislative  Ethics Act  that caused  some to  think that                                                               
former legislators  didn't have  to report for  the last  half of                                                               
the  year.  Amendment  2  just  changes  "the  provision"  to  "a                                                               
provision  of this  chapter," he  stated.  "So if  you read  this                                                               
together with  the amendment that  just passed  about disclosures                                                               
required of  former legislators, and so  forth…the amendment that                                                               
just  passed  would   be  the  provision  of   the  chapter  that                                                               
specifically  states  that the  whole  chapter  is applicable  to                                                               
everybody, regardless of whether they're serving or not."                                                                       
                                                                                                                                
10:18:03 AM                                                                                                                   
CHAIR MCGUIRE said it is a technical amendment.                                                                                 
                                                                                                                                
SENATOR  FRENCH  withdrew  his   objection.  Hearing  no  further                                                               
objections, Amendment 2 carried.                                                                                                
                                                                                                                                
The committee took an at-ease from 10:18:15 to 10:18:43 AM.                                                                   
                                                                                                                                
10:18:47 AM                                                                                                                   
CHAIR  MCGUIRE  said  there  is   no  time  to  consider  spousal                                                               
lobbying, and  it can be  worked on before  the bill goes  to the                                                               
Senate Finance Committee.                                                                                                       
                                                                                                                                
SENATOR  FRENCH moved  SB 20,  as amended,  with attached  fiscal                                                               
notes from committee with individual recommendations.                                                                           
                                                                                                                                
SENATOR  BUNDE  objected  in  order   to  comment.  He  said  the                                                               
legislature listened  to an ethics  expert and one of  his points                                                               
was to try  to "do this as  a single bill and not  a piecemeal. I                                                               
would just  note that we  appear to  be ignoring his  advice." He                                                               
removed his objection.                                                                                                          
                                                                                                                                
10:19:38 AM                                                                                                                   
SENATOR  GREEN said  the man  also  said an  omnibus bill  failed                                                               
under its own weight.  "So there are a lot of ways  to get to the                                                               
solution on this."                                                                                                              
                                                                                                                                
SENATOR  FRENCH  said he  can't  resist  echoing that.  "I  think                                                               
today's proceeding  really is a  perfect example of why  you need                                                               
several small  bills moving  through the  system, because  as you                                                               
add provisions,  you weigh them  down and  it just makes  it more                                                               
difficult to actually get the bill to the finish line."                                                                         
                                                                                                                                
10:20:15 AM                                                                                                                   
CHAIR  MCGUIRE announced  that,  hearing  no further  objections,                                                               
CSSB   20(STA)   passes   out  of   committee   with   individual                                                               
recommendations and attached fiscal notes.                                                                                      
                                                                                                                                
^#SB45                                                                                                                        
            SB  45-PEACE OFFICER CONVICTED OF MURDER                                                                        
                                                                                                                                
CHAIR MCGUIRE  announced SB  45 to be  up for  consideration. She                                                               
said  previous discussions  centered on  the color  of authority.                                                               
She noted  Amendment 1  with Senator  Olson's name  attached. She                                                               
added  her own  and Senator  French's  name to  it. Amendment  1,                                                               
labeled 25-LS0183\A.1, Luckhaupt, is as follows:                                                                                
                                                                                                                                
     Page 2, line 9:                                                                                                            
          Delete "was on duty at the time of"                                                                               
          Insert "used the officer's authority as a peace                                                                   
     officer to facilitate"                                                                                                 
                                                                                                                                
CHAIR  MCGUIRE said  Amendment  1  gets at  what  she thinks  was                                                               
agreed by  the committee unanimously,  which was to  clarify that                                                               
the bill is  not just for a peace officer  committing murder, but                                                               
for one  who uses  the color  of authority to  do so.  Hearing no                                                               
objection, Amendment 1 carried.                                                                                                 
                                                                                                                                
SENATOR BUNDE moved Amendment 2, as follows:                                                                                    
                                                                                                                                
     Page 2                                                                                                                     
     Line 9 delete (5)                                                                                                          
          and add (5) "the  court finds clear and convincing                                                                
          evidence  that the  defendant as  a peace  officer                                                                
          abused his or  her duty and authority  at the time                                                                
          of the murder."                                                                                                   
                                                                                                                                
CHAIR MCGUIRE objected.                                                                                                         
                                                                                                                                
The committee took an at-ease from 10:22:05 AM to 10:23:12 AM.                                                              
                                                                                                                                
SENATOR BUNDE  explained his amendment.  He said "this is  a very                                                               
egregious case, and we certainly  don't want to see anything like                                                               
this happen  again." However, he wants  the bill to "do  no harm"                                                               
and not have  "unintended consequences when a  police officer has                                                               
to face that  life-changing decision as to whether  to use deadly                                                               
force."  Commissioner  Monegan  described  what  goes  through  a                                                               
person's  mind, he  said.  The amendment  "would  not reduce  the                                                               
attempt  to make  sure that  police officers  don't abuse"  their                                                               
color  of authority.  "But  it also  may  reduce that  additional                                                               
millisecond pause that  a police officer might have  to review in                                                               
his mind  before he does  make the  decision to use  deadly force                                                               
and inhibit him from doing his job as he ought to do it."                                                                       
                                                                                                                                
10:25:23 AM                                                                                                                   
CHAIR  MCGUIRE suggested  that  Senator  Bunde's amendment  would                                                               
nullify  the previous  amendment, because  it is  another way  of                                                               
saying it. "So your language  would say, instead, the court finds                                                               
clear  and convincing  evidence that  the defendant,  as a  peace                                                               
officer, abused his  or her authority at the time  of the murder.                                                               
So  you're putting  in  a standard:  clear  and convincing."  She                                                               
asked  what  the current  standard  is  and  if  it is  beyond  a                                                               
reasonable doubt.                                                                                                               
                                                                                                                                
SENATOR FRENCH said  that for a sentencing  provision he believes                                                               
that one has to prove every element beyond a reasonable doubt.                                                                  
                                                                                                                                
CHAIR MCGUIRE surmised  therefore that clear and  convincing is a                                                               
lower standard. "It's unusual."                                                                                                 
                                                                                                                                
The committee took and at-ease from 10:26:35 AM to 10:27:33 AM.                                                             
                                                                                                                                
CHAIR MCGUIRE said everyone is trying to get at the same goal.                                                                  
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section,  Criminal  Division,  Department of  Law,  said  Senator                                                               
Bunde's  amendment is  included in  Amendment 1,  which has  been                                                               
adopted.  She  said  she  would  prefer  to  just  use  the  word                                                               
"authority" and  not "duty and  authority." She added that  it is                                                               
important  to include  the term  "facilitate"  because Matt  Owen                                                               
[the peace  office who  committed murder]  used his  authority to                                                               
get the victim in the car. At  a certain point he wasn't on duty,                                                               
she noted. Current statute states  that factual findings in Title                                                               
12  have to  be proved  by  a preponderance  of evidence,  unless                                                               
certain things  occur. "You could  put it…under paragraph  3, and                                                               
you  should  probably also…add  it  in  the sentencing  procedure                                                               
statutes,  which say:  preponderance of  the evidence  unless…for                                                               
example, some  aggravating factor we  have to prove by  clear and                                                               
convincing evidence.  And it is  true, that at this  point, since                                                               
we are dealing with maximums, Blakely doesn't apply."                                                                           
                                                                                                                                
10:29:39 AM                                                                                                                   
CHAIR MCGUIRE said that preponderance  of the evidence is a lower                                                               
standard  than   "clear  and  convincing,"   so  if   "clear  and                                                               
convincing" were added,  it would mean that  the prosecution must                                                               
meet  a higher  threshold to  show  that a  peace officer  abused                                                               
authority. "Why would we want to do that?" she asked.                                                                           
                                                                                                                                
MS.  CARPENETI  said,  "For  the  reasons  expressed  by  Senator                                                               
Bunde." She  said the state  would need to  prove it by  a higher                                                               
standard. Preponderance  is 51 percent, and  clear and convincing                                                               
is a little higher.                                                                                                             
                                                                                                                                
SENATOR BUNDE said, "We do currently  use it in the torture, and,                                                               
again,  as someone  has to  make that  life-changing decision  of                                                               
whether  to  use deadly  force  or  not…we don't  add  additional                                                               
burdens to  the police officer  while still punishing  those…" He                                                               
then  asked if  Ms. Carpeneti  was familiar  with other  officers                                                               
committing murder while on duty.                                                                                                
                                                                                                                                
10:30:58 AM                                                                                                                   
MS.  CARPENETI said  this  is  first such  case  in  50 years  of                                                               
statehood.  She noted  that these  sentencing factors  apply only                                                               
after someone is found guilty of murder in the first degree.                                                                    
                                                                                                                                
CHAIR  MCGUIRE said  in the  case of  Sonya Ivanoff  there was  a                                                               
separate trial on  the torture, and the statute  already read "by                                                               
clear  and convincing  evidence,"  so  that was  met.   She  then                                                               
stated that she  was confusing two cases. "In this  case, you got                                                               
99 years. The  law wasn't on the books, so  there was no standard                                                               
of proof. If there  had been a law on the books,  and it had been                                                               
difficult to  get the mandatory 99,  and the law had  read 'clear                                                               
and  convincing evidence',  do you  believe you  would have  been                                                               
able to meet that standard?"                                                                                                    
                                                                                                                                
MS. CARPENETI  said she could  ask the prosecutor. She  said that                                                               
case had no  mandatory maximum, "and we were able  to prove by no                                                               
particular standard  of proof  that the  court should  impose the                                                               
maximum,  for  the  reasons  that  are  really  inherent  in  the                                                               
purposes of the bill."                                                                                                          
                                                                                                                                
10:33:00 AM                                                                                                                   
WALT MONEGAN,  Commissioner, said  he supports Amendment  2 while                                                               
striking out the  word "duty." That would resolve  his concern of                                                               
creating  another hesitation  [in  an officer's  decision to  use                                                               
deadly force]. He wanted a  clear distinction from being a police                                                               
officer and being a predator.  He noted that the officer deserved                                                               
the  sentence  he   got,  "I  just  don't  want   to  cause  that                                                               
hesitation."                                                                                                                    
                                                                                                                                
CHAIR  MCGUIRE said  there is  a  way to  get at  the same  idea.                                                               
Working with  the adopted amendment,  insert, on page 2,  line 9,                                                               
(before  the  new  language)  "the   court  finds  by  clear  and                                                               
convincing  evidence  that  the   defendant  used  the  officer's                                                               
authority as a  peace officer to facilitate".  So Senator Bunde's                                                               
amendment  would be  to  insert:  the court  finds  by clear  and                                                               
convincing evidence that the defendant.                                                                                         
                                                                                                                                
10:35:14 AM                                                                                                                   
SENATOR BUNDE asked  if he should withdraw Amendment  2 and offer                                                               
Amendment 2a.                                                                                                                   
                                                                                                                                
CHAIR MCGUIRE said yes. Amendment  2a has been offered, she said,                                                               
as follows:                                                                                                                     
                                                                                                                                
     Page 2, line 9:                                                                                                            
        Insert: "the court finds by clear and convincing                                                                      
     evidence that the defendant"                                                                                             
                                                                                                                                
SENATOR FRENCH said it would now read:                                                                                          
                                                                                                                                
     "the court finds by clear and convincing evidence that                                                                   
         the defendant is a peace officer who used the                                                                        
     officer's authority as a peace officer to facilitate…"                                                                   
                                                                                                                                
10:36:30 AM                                                                                                                   
CHAIR MCGUIRE said that is better. Hearing no objections,                                                                       
Amendment 2a carried.                                                                                                           
                                                                                                                                
SENATOR STEVENS moved Amendment 3, labeled 25-LS0183\A.2,                                                                       
Luckhaupt, as follows:                                                                                                          
                                                                                                                                
     Page 1, following line 2:                                                                                                  
     Insert a new bill section to read:                                                                                         
        "* Section 1. The uncodified law of the State of                                                                    
     Alaska is amended by adding a new section to read:                                                                         
          SHORT TITLE. This Act may be known as the Sonya                                                                       
     Ivanoff Act."                                                                                                              
                                                                                                                                
     Page 1, line 3:                                                                                                            
          Delete "Section 1"                                                                                                  
          Insert "Sec. 2"                                                                                                     
                                                                                                                                
     Renumber the following bill section accordingly.                                                                           
                                                                                                                                
     Page 2, line 13:                                                                                                           
          Delete "Section 1"                                                                                                    
     Insert "Section 2"                                                                                                         
                                                                                                                                
Hearing no objection, Amendment 3 carried.                                                                                      
                                                                                                                                
SENATOR GREEN asked about using the term "law" instead of "act".                                                                
                                                                                                                                
SENATOR FRENCH said these specifically-named titles have                                                                        
recently been taken out of the law. He said he always votes to                                                                  
take them out of the law, and he will object for consistency.                                                                   
                                                                                                                                
10:38:10 AM                                                                                                                   
CHAIR MCGUIRE said it has already carried, so Senator French                                                                    
will need to offer another amendment.                                                                                           
                                                                                                                                
SENATOR FRENCH said he will not make an issue of it.                                                                            
                                                                                                                                
CHAIR  MCGUIRE said  there was  a  healthy debate  in the  Senate                                                               
Judiciary  Standing Committee,  and she  suspects the  issue will                                                               
come up again.                                                                                                                  
                                                                                                                                
SENATOR  GREEN  moved SB  45,  as  amended, from  committee  with                                                               
individual recommendations and accompanying fiscal notes.                                                                       
                                                                                                                                
SENATOR BUNDE  reiterated that it  was an egregious case  and not                                                               
common for  this to happen, and  he hopes it won't  happen again.                                                               
He noted that the bill is  a thoughtful reaction, and not a knee-                                                               
jerk reaction.                                                                                                                  
                                                                                                                                
CHAIR MCGUIRE heard no further  objections, so CSSB 45(STA) moved                                                               
out of committee.                                                                                                               

Document Name Date/Time Subjects