Legislature(1993 - 1994)
01/18/1994 01:39 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
January 18, 1994
1:39 p.m.
TAPE HFC 94-5, Side 1, #000 - end.
TAPE HFC 94-5, Side 2, #000 - end.
TAPE HFC 94-6, Side 1, #000 - 431.
CALL TO ORDER
Co-Chair Larson called the House Finance Committee to order
at 1:39 p.m.
PRESENT
Co-Chair Larson Representative Hoffman
Co-Chair MacLean Representative Martin
Vice-Chair Hanley Representative Navarre
Representative Brown Representative Parnell
Representative Foster Representative Therriault
Representative Grussendorf
ALSO PRESENT
Senator Rick Halford; Representative Tom Brice; Arthur H.
Snowden, II, Administrative Director, Alaska Court System;
Richard L. Burton, Commissioner, Department of Public
Safety; Edward McNally, District Attorney, Department of
Law; Dean Guaneli, Chief, Assistant Attorney General,
Department of Law; Margot Knuth, Criminal Division,
Department of Law; Diane Schenker, Special Assistant,
Department of Corrections; John Salemi, Director, Public
Defender Agency, Department of Administration; Brant McGee,
Director, Office of Public Advocacy, Department of
Administration; David Stone, Alaska Council of Producers;
Anthony Williams, Alaska Miners Association; Patrick
Conheady, Private Attorney; Jerry Luckhaupt, Legislative
Legal Counsel, Legislative Affairs Agency;
SUMMARY INFORMATION
HB 132 "An Act extending the time period of all permits
issued by the state relating to the extraction or
removal of resources if the holder of the permits
is involved in litigation concerning the issuance
or validity of any permit related to the
extraction or removal."
CSHB 132 (JUD) was HELD in Committee for further
discussion.
SB 19 "An Act relating to the crime of conspiracy."
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CSSB 19 (FIN)am was HELD in Committee for further
discussion.
SENATE BILL NO. 19
"An Act relating to the crime of conspiracy."
Co-Chair Larson observed that CSSB 19 (FIN)am was assigned
to a subcommittee consisting of Chair Representative Hanley
and Representatives Parnell and Hoffman, on 3/23/93.
Representative Hanley noted that the subcommittee did not
alter CSSB 19 (FIN)am.
Representative Brown OBJECTED to consideration of CSSB 19
(FIN)am, by the House Finance Committee. By point of order,
she noted that CSSB 19 (FIN)am had been considered by a
committee not constituted correctly under the uniform rules.
SENATOR RICK HALFORD noted that CSSB 19 (FIN)am would create
a separate crime of conspiracy. He spoke in support of the
Department of Corrections' fiscal note.
Representative Brown referred to page 1, line 6, "agrees".
She suggested that "agrees" be augmented with "and
communicates the agreement to the other person or persons".
Senator Halford did not think that the additional phrasing
was necessary. Representative Brown argued that further
clarification is necessary. She noted that the person being
charged did not have to be involved in the overt act.
ARTHUR H. SNOWDEN, II, ADMINISTRATIVE DIRECTOR, ALASKA COURT
SYSTEM expressed concern that the legislation would have a
fiscal impact on the Alaska Court System. He estimated that
court workloads would increase due to longer trials. He
asked that the Alaska Court System fiscal note be adopted.
He suggested that intent language could be added to lapse
funding if no more than 6 trials pertaining to conspiracy
charges are tried in the fiscal year. He observed that
there are only three court rooms in the state that can
accommodate trials with multiple defendants.
BRANT MCGEE, DIRECTOR, OFFICE OF PUBLIC ADVOCACY, DEPARTMENT
OF ADMINISTRATION noted that the Office of Public Advocacy
will defend conspiracy cases if the Public Defender Agency
has a conflict of interest. He estimated that the Office of
Public Advocacy would represent 75 percent of conspiracy
cases. He assumed that the majority of defendants would be
indigent. He emphasized that conspiracy trials would
involve multiple defendants and be intensely litigated and
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expensive. He disagreed with assumptions, by the Department
of Law, that multiple defendant cases would reduce court
costs. He pointed out that lawyers representing one client
would have to be in attendance for the entire trial length.
He maintained that costs to the Office of Public Advocacy
will triple.
PAT CONHEADY, PRIVATE ATTORNEY asserted that the legislation
is not necessary. He maintained that it is substantially
more expensive to defend a conspiracy charge. He stated
that the bill to government agencies from the Office of
Public Advocacy in conspiracy cases has been four times
greater than in other cases. He stressed the need for plea
bargaining and a process for screening cases. He noted that
the Attorney General banned plea bargaining in the 1970's.
EDWARD MCNALLY, DISTRICT ATTORNEY, ANCHORAGE, DEPARTMENT OF
LAW emphasized that the State of Alaska is the only state
that does not have a conspiracy law. He pointed out that
conspiracy laws are not new. He maintained that cases
involving conspiracies in the State of Alaska would continue
to be tried by the federal government if the legislation is
not adopted. He stressed that multiple defender trials
provide the jury and judge with a clearer picture of the
crime. He discussed a case consisting of multiple narcotic
defendants to demonstrate how separate trials would not tell
the whole story. He estimated that a conspiracy law would
primarily be used in cases involving narcotics.
Mr. McNally acknowledged that the federal government can try
conspiracy cases in Alaska, but pointed out that only the
most serious cases would be tried in federal court. He
emphasized that rural areas of the State of Alaska would
benefit from the legislation against smaller narcotic
operations.
Mr. McNally disputed previous statements by Mr. McGee. He
stated that most conspiracy trials would only involve 2 to 3
defendants. He disagreed that trial time in conspiracy
cases would be longer than the sum of separate trials.
Mr. McNally asserted that many conspiracy cases do not go to
trial. He maintained that conspiracy trials increase the
probability that defendants will be convicted.
Mr. McNally referred to Representative Brown's suggestion
that "agrees" be augmented with "and communicates the
agreement to the other person or persons". He felt that the
language would weaken the legislation. He pointed out that
the prosecution must prove that the defendant intended to
agree, actually did agree and that an overt act was
committed in furtherance of the agreement.
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Representative Navarre asked if there would be fracturing of
cases when the charge of conspiracy is employed. Mr.
McNally replied that it would be extremely difficult to
fracture cases involving conspiracy. He noted that cases
containing overlapping confessions would still be fractured.
(Tape Change, HFC 94-5, Side 2)
Representative Brown questioned how the prosecution would
demonstrate agreement if it was not communicated. Mr. Nally
answered that inference would be used. Representative Brown
asked how agreement would be demonstrated if both parties
were not involved in the overt act. Mr. McNally emphasized
that enough evidence must be present to convince the jury.
He pointed out that federal law uses "conspires" instead of
"agrees". He maintained that the jury process will prevent
misuse of the law.
In response to a question by Representative Brown, Mr.
McNally discussed "entrapment". He stated that initiation
of the offense can not come from law enforcement officers.
Mr. McNally observed that conspiracy charges are not used to
charge someone involved in a different type of crime, such
as soliciting laws. He emphasized that conspiracy is a
separate crime. Conspiracy law would allow prosecutors to
charge offenders not otherwise charged.
Mr. McNally pointed out that conspiracy charges carry a
slightly less serious penalty than the actual crime. He
explained that in exchange for a lesser penalty prosecutors
may obtain evidence concerning others not involved in the
overt action.
Mr. McNally acknowledged that state prosecutors will need to
confer in order to determine how a conspiracy law will be
utilized, after legislation is passed.
In response to a question by Representative Brown, Mr.
McNally stated that he expected that the ban on plea
bargaining will be lifted by the Attorney General.
JOHN SALEMI, DIRECTOR, PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION testified via the teleconference network from
Anchorage. He emphasized that the legislation will create a
new and distinct category of crime. He suggested that more
conspiracy cases will come to trial than estimated by Mr.
McNally. He pointed out that a conspiracy law could be used
for prosecution of gang activities. He maintained that the
legislation will result in an increase in prosecution.
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Mr. Salemi accentuated that conspiracy trials will be long
and costly. He disagreed that a conspiracy trial would be
more effective in demonstrating the entire picture of a
crime than separate trials of multiple defenders. He
questioned the credibility of defendants involved in the
lessening of their charges in exchange for information
regarding another party.
Mr. Salemi referred to the Office of Public Advocacy's
fiscal note. He suggested that the estimation of fiscal
impact is conservative.
Representative Brown expressed concern that the legislation
would be passed without the accompanying fiscal notes. Mr.
Salemi replied that if the legislation is passed without
increased fiscal support postponement of cases would
probably result. The postponement of cases would be more
detrimental to the prosecution than to the defense.
(Tape Change, HFC 94-6, Side 1)
RICHARD L. BURTON, COMMISSIONER, DEPARTMENT OF PUBLIC SAFETY
testified on behalf of the legislation. He envisioned that
conspiracy laws would be used to pursue crimes under
contemplation. He felt the legislation would allow
proactive or preventative law enforcement. He disagreed
with the previous statement that most defendants would be
indigent.
DIANE SCHENKER, SPECIAL ASSISTANT, DEPARTMENT OF CORRECTIONS
discussed the Department's fiscal note. She stated that the
fiscal note estimates a 1 percent increase in incarceration
due to cases involving conspiracy for unclassified class A
or B crimes against persons. She added that the cost per
day for incarceration will be higher in FY 95 than in FY 94.
She emphasized that the State of Alaska's correction system
is at full capacity.
CSSB 19 (FIN)am was HELD in Committee for further
discussion.
HOUSE BILL NO. 132
"An Act extending the time period of all permits issued
by the state relating to the extraction or removal of
resources if the holder of the permits is involved in
litigation concerning the issuance or validity of any
permit related to the extraction or removal."
REPRESENTATIVE BRICE explained that CSHB 132 (JUD) would
allow state resource permits to be extended while the holder
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is under litigation. The permit would be extended by the
amount of time spent in litigation. The extension would not
be issued unless the permit holder was prevented from
operating by a court order from the lawsuit and the holder
won the suit.
ANTHONY WILLIAMS, ALASKA MINERS ASSOCIATION spoke in support
of CSHB 132 (JUD).
Representative Therriault asked if the extension should be
tied to a court ordered injunction. He pointed out that
litigation could cause the developers to lose their
financial backing. He asserted that the simple fact of
litigation can prevent development of a project.
Representatives Brice and Therriault agreed to research
legal wording of an amendment which would address the
permits under litigation when a court injunction has not
been issued.
Representative Brown asked how the property rights and
contract provisions of Oil and Gas leases would be effected.
JERRY LUCKHAUPT, LEGISLATIVE LEGAL COUNSEL, LEGISLATIVE
AFFAIRS AGENCY discussed the validity of the state or
federal permit. The legislation is limited to suits against
issuance and validity of permits.
DAVID STONE, PRESIDENT, COUNCIL OF ALASKA PRODUCERS spoke in
support of CSHB 132 (JUD). He emphasized that litigation of
permits is one of the major issues involving the development
and operation of mining projects.
CSHB 132 (JUD) was HELD in Committee for further discussion.
ADJOURNMENT
The meeting adjourned at 3:31 p.m.
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