Legislature(1995 - 1996)
04/21/1995 01:40 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
April 21, 1995
1:30 P.M.
TAPE HFC 95-91, Side 1, #000 - end.
TAPE HFC 95-91, Side 2, #000 - end.
TAPE HFC 95-92, Side 1, #000 - end.
CALL TO ORDER
Co-Chair Mark Hanley called the House Finance Committee
meeting to order at 1:40 p.m.
PRESENT
Co-Chair Hanley Representative Martin
Co-Chair Foster Representative Mulder
Representative Brown Representative Navarre
Representative Grussendorf Representative Therriault
Representative Kelly
Representative Kohring
Representative Parnell was absent from the meeting.
ALSO PRESENT
Diana Andrew, Fairbanks; Louise Charles, Fairbanks; Thea
Zumwalt, Anchorage; Louise Webb, Kenai; Kathleen Muller,
Kenai; Mary Giles, Kenai; Deborah McIntosh, Kenai; Perry
Cannon, Kenai; Arthur Walters, Kenai; Carmellee, Scalph,
Homer; Bertha Strong, Anchorage; Margi Mock, Anchorage;
Joshana Lee, Juneau; Debbie Brown, Anchorage; Martha
Charles, Anchorage.
SUMMARY
HB 78 An Act relating to the maximum amount of
assistance that may be granted under the adult
public assistance program and the program of aid
to families with dependent children; proposing a
special demonstration project within the program
of aid to families with dependent children and
directing the Department of Health and Social
Services to seek waivers from the federal
government to implement the project.
HB 78 was HELD in Committee for further
discussion.
HB 201 An Act relating to prisoner litigation,
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post-conviction relief, sentence appeals, amending
Alaska Administrative Rule 10, Alaska Rules of
Appellate Procedure 204, 208, 209, 215, 521, 603,
and 604, and Alaska Rules of Criminal Procedure
11, 33, 35, and 35.1; and providing for an
effective date.
HB 201 was HELD in Committee for further
discussion.
HB 202 An Act relating to the participation and
accountability of parents and guardians and the
enforcement of restitution orders entered in
juvenile delinquency proceedings; relating to
claims on permanent fund dividends for certain
court-ordered treatment in juvenile delinquency
proceedings; changing Alaska Supreme Court
Delinquency Rules 3(b) and 8(b); and providing for
an effective date.
CSHB 202 (HES) was reported out of Committee with
a "do pass" recommendation and with a fiscal
impact note by the Alaska Court System and with
seven zero fiscal notes; two by the Department of
Administration, dated 2/27/95; three by the
Department of Health & Social Services, dated
2/27/95; one by the Department of Revenue, dated
2/27/95; and one by the Department of Law, dated
2/27/95.
HOUSE BILL NO. 78
An Act relating to the maximum amount of assistance
that may be granted under the adult public assistance
program and the program of aid to families with
dependent children; proposing a special demonstration
project within the program of aid to families with
dependent children and directing the Department of
Health and Social Services to seek waivers from the
federal government to implement the project.
DIANA ANDREW, FAIRBANKS testified via the teleconference
network. She emphasized the need for job training.
LOUISE CHARLES, FAIRBANKS testified via the teleconference
network. She expressed concern that mandates would be
placed on families receiving AFDC without inclusion in the
job program. She emphasized the need for employment
training. She questioned funding for the jobs program.
BERTHA STRONG, ANCHORAGE testified via the teleconference
network. She noted that she is disabled. She observed that
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her children will not be covered by the legislation.
THEA ZUMWALT, ANCHORAGE testified via the teleconference
network. She expressed concern with the effect of the
legislation on the disabled and elderly.
KATHLEEN MULLER, ANCHORAGE testified via the teleconference
network. She stated that without the assistance she
receives from the State that she would be totally helpless.
LOUISE WEB, ANCHORAGE testified via the teleconference
network. She noted that she is the care-giver for Ms.
Muller. She stated that Ms. Muller would have to go into a
nursing home without the assistance provided by the State.
DEBORAH MCINTOSH, KENAI testified via the teleconference
network. She stated that the disabled should be considered
separately. She expressed concern in regards to the
waivers.
PERRY CANNON, KENAI testified via the teleconference
network. He expressed concern that handicapped children
would be adversely affected.
ARTHUR WALTERS, GOVERNOR'S COUNSEL ON DISABILITIES AND
EDUCATION KENAI testified via the teleconference network.
He stated that the reduction in benefits will drive persons
back into nursing homes.
Co-Chair Hanley clarified that the adult public assistance
rateable reduction has been eliminated from HB 78.
CARMELLEE SCALPH, HOMER testified via the teleconference
network. She testified in opposition to HB 78.
JOSHANA LEE, JUNEAU spoke in opposition to benefits
reductions to AFDC recipients. She noted that she is
disabled. She emphasized that welfare reform is necessary.
She observed that reductions to AFDC benefits will return to
the General Fund.
Co-Chair Hanley noted that there is not enough money in the
General Fund to cover State expenditures.
Ms. Lee stressed that even a $15 dollar benefit reduction
can have a severe impact. She emphasized the need for work
programs.
Representative Therriault emphasized that the savings from
the ratable reductions covers the cost of the demonstration
project.
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Ms. Lee urged members to fund services that will build up
recipients.
DEBBIE BROWN, ANCHORAGE testified via the teleconference
network. She questioned if a AFDC parent attending school
full-time would be required to perform 21 hours of community
service.
Co-Chair Hanley noted that the current version does require
full-time students on AFDC to perform community service. He
noted that concern has been expressed that an exemption be
allowed for full-time students.
MARTHA CHARLES, ANCHORAGE testified via the teleconference
network. She emphasized the responsibility of the fathers
of children on AFDC.
HOUSE BILL NO. 202
An Act relating to the participation and accountability
of parents and guardians and the enforcement of
restitution orders entered in juvenile delinquency
proceedings; relating to claims on permanent fund
dividends for certain court-ordered treatment in
juvenile delinquency proceedings; changing Alaska
Supreme Court Delinquency Rules 3(b) and 8(b); and
providing for an effective date.
LAURIE OTTO, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW testified in support of HB 202. She
emphasized that parent groups and individuals working with
juveniles have expressed concern with the increasing number
of juveniles in trouble and a lack of parent involvement.
She pointed out that section 2 requires parents to attend
juvenile delinquency hearings unless excused by the Court
for good cause. She emphasized the need for parent
participation. She noted that the legislation would allow
the Court to require parent counseling. The parents are
also responsible for communicating with the Court if the
minor is not applying with court orders. She noted that
section 1 would allow the parent's permanent fund dividend
to be taken to pay for court ordered treatment. She added
that the legislation would allow courts to order parents to
pay restitution in criminal cases. She stressed that
currently the judgement would cease when the juvenile left
the jurisdiction of the juvenile court. Under the
legislation the judgement would remain against the parent.
In response to a question by Representative Brown, Ms. Otto
clarified that the parent's presence would not be required
until a petition of delinquency is filled. She noted that
parents are currently involved in 99 percent of the cases at
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the juvenile in-take stage.
Representative Martin MOVED to report CSHB 202 (HES) out of
Committee with individual recommendations and with the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
Representative Therriault referred to the definition of
"runaway or mission minor". Ms. Otto explained that the
language clarifies statute.
CSHB 202 (HES) was reported out of Committee with a "do
pass" recommendation and with a fiscal impact note by the
Alaska Court System and with seven zero fiscal notes; two by
the Department of Administration, dated 2/27/95; three by
the Department of Health & Social Services, dated 2/27/95;
one by the Department of Revenue, dated 2/27/95; and one by
the Department of Law, dated 2/27/95.
HOUSE BILL NO. 201
An Act relating to prisoner litigation, post-conviction
relief, sentence appeals, amending Alaska
Administrative Rule 10, Alaska Rules of Appellate
Procedure 204, 208, 209, 215, 521, 603, and 604, and
Alaska Rules of Criminal Procedure 11, 33, 35, and
35.1; and providing for an effective date.
The Committee was provided with copies of proposed committee
substitute for HB 201, Work Draft #9-GH0028\0, dated 4/20/95
(copy on file).
Ms. Otto reviewed the work draft. She noted that most of
the statutory changes included in HB 201 were at the request
of the Court. She stated that the first substantive change
made by the work draft was the deletion on page 3, lines 5 -
11 of changes made by CSHB 201 (JUD). She noted that these
provisions would have required screening for frivolous
cases. She explained that this provision would have
required a $200 thousand dollar fiscal note. She noted a
new section was substituted to allow a dismissal of
litigation if there are material false statements in the
filing. She noted that section 10 is new to allow the Court
of Appeals to hear appeals of sentences exceeding two years
for a felony offense or 120 days for a misdemeanor offense.
Ms. Otto stated that sections 19 and 20 would clarify that
advisement would only be given in cases where there is an
appellate right or where there is a plea agreement.
Ms. Otto noted that sections 33, 34 and 35 are new at the
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request of the Public Defender Agency. She explained that
if a person files an application for a post conviction
relief and the Public Defender concludes that the case is
frivolous that a brief would not be required. A certificate
would be filed that the application does not present a
colorable claim for relief. The Court would than give
notice to the defendant of its intent to permit the
appointed counsel to withdraw and dismiss the application.
The applicant would then be given an opportunity to explain
why the case is not frivolous. The Court would next make a
judgement as to the merit of the case. She stressed that
the Department of Law supports these provisions.
Representative Mulder MOVED to adopt work draft #9-GH0028\O,
dated 4/20/95. There being NO OBJECTION, it was so ordered.
MARGI MOCK, APPELLATE SECTION, PUBLIC DEFENDER AGENCY
testified via the teleconference network. She expressed
concern with sections 28 and 29. She noted that these
sections eliminate Rule 35 (a) and reduces the time a
defendant can file for sentence modification from 120 days
to 60 days. She asserted that the legislation would
entirely eliminate sentence modification. She stressed the
difficulty to demonstrate a change or rehabilitation within
60 days. She maintained that the change would result in an
increase in motions. She stated that it makes more sense to
allow modifications when there is enough time to demonstrate
a compelling need for relief and that the defendant can be
returned safely to the community.
Ms. Mock noted that section 20 does not allow the Appellate
Court to accept late filled appeals or petitions for
hearings. She stressed that this penalizes defendants whose
lawyers are negligent and do not file appellate pleadings in
a timely fashion. She recommended that the Court be given
the discretion to relax the deadline in cases where the
interest of justice requires.
Ms. Mock noted that section 36 states that the "applicant
bears the burden of proving all factual assertions by clear
and convincing evidence." She noted that this is new
language. She asserted that there are varying burden of
proofs already set by the Court.
Ms. Otto summarized that under Rule 35 (a) a motion to
modify is allowed for any reason within 120 days after the
day the sentence is opposed or after an appeal has been
decided. She stressed that it is unfair to have those that
accept their sentence to have a shorter period of time than
those that carry their sentence to appeal. She did not
think it appropriate to have two sets of standards for two
classes of defendants.
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Ms. Otto stated that the Court has rejected motions to
modify that are currently in Rule 35 (b). She explained
that the Court has ruled that rehabilitation as a result of
jail time is not a basis for modification of sentence. She
noted that the Court has judged that rehabilitation was the
purpose of the imposed sentence. She pointed out that there
is an executive clemency procedure for individuals that are
outside the time limit.
In response to a question by Representative Brown, Ms. Otto
emphasized that in the small amount of cases where a
sentence modification is appropriate that executive clemency
is a suitable remedy. She stressed the number of frivolous
cases. She stated that executive clemency is authorized by
the Constitution and is investigated by the parole board.
She stated that executive clemency is not frequently
granted.
Representative Brown questioned why the period for sentence
modification was changed from 120 to 60 days. Ms. Otto
stated that there was a general consensus, with the
exception of the Public Defender Agency, that 60 days was
sufficient. Ms. Otto stated that she would not object to
the deletion of the change. She noted that the change takes
place on page 18, line 14. She explained that Rules 35(a)
and (b) were combined into Rule 35(b).
Ms. Otto agreed that defendants should not be penalized for
the negligence of their lawyers. She stressed that the
remedy is on page 20, lines 3 and 4. This would be reason
to grant a post conviction relief application and allow the
appeal to be filed.
She stated that the change is designed to resolve appeals in
a timely fashion.
Ms. Otto referred to section 36. She felt that the section
is an appropriate step by the Legislature to impose a clear
and convincing burden of proof. She emphasized that the
section applies to post conviction relief applications. She
stressed that post conviction relief application is the
second round of appeals filed after someone has already lost
on direct appeal. She stated that after the State has met a
higher burden of proof that it is appropriate that someone
seeking relief on a second round of appeals have the burden
of proving factual matters by clear and convincing evidence.
In response to a question by Representative Brown, Ms. Otto
noted that page 19 details circumstances for which a post
conviction relief application can be granted.
Ms. Otto explained that in the first case the State would
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have the burden of proof. In the relief application the
defendant would have the burden of proof. Current law is
based on the preponderance of the evidence.
(Tape Change, HFC 95-92, Side 2)
Ms. Otto stated that if the Court finds under section 30(4),
"that there exists evidence of material facts, not
previously presented and heard, that requires vacation of
the conviction or sentence in the interest of justice", the
application would be granted.
Representative Navarre summarized that the evidence would
not have been available at appeal. He questioned how often
post conviction relief applications are successful. Ms.
Otto stated that post convictions relief applications are
occasionally successful.
Representative Navarre expressed concern that innocent
persons not receive a higher burden of proof. Ms. Otto
emphasized that once a person is convicted they are not
presumed to be innocent.
Ms. Otto summarized that the legislation will reduce the
number of cases that will be filed and provide appropriate
uniform procedures. She estimated that the vast majority of
applications are supported by unsubstantiated facts.
Representative Grussendorf recounted personal experiences
with prisoners seeking appeal.
Representative Mulder spoke in support of the legislation.
In response to a question by Representative Brown, Ms. Otto
clarified that if a defendant's lawyer did not file a
petition for appeal they would be rendered ineffective
assistance of counsel on appeal. This is grounds for a post
conviction relief application. The defendant would then be
allowed to present an appeal.
Representative Therriault referred to page 5, section 6.
Ms. Otto explained that the presumptive sentence for a C
felony is 2 years. She stated that the Department of Law
was unable to locate an conviction of less than 2 years for
a felony offense that was overturned. She noted that case
law is complicated for sentences over 2 years. She noted
that the right to appeal differs from state to state. She
stressed that classes of cases were sought where defendants
always loose.
Representative Brown referred to comments by Alaska Civil
Liberties Union (ACLU) to Representative Porter, dated April
7, 1995 (copy on file). Ms. Otto stressed that it is
unlikely for a sentence of two years or less to succeed in a
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sentence appeal.
Representative Brown noted concerns by the ACLU in regards
to sections 8 and 9. Ms. Otto stated that a defendant
cannot collaterally attack an evidentiary ruling unless he
can establish a direct violation of his constitutional
rights. She maintained that this provision is a
codification of existing practice.
In response to a question by Representative Brown, Ms. Otto
clarified that under section 28 the Court has the ability to
grant a judgement of acquittal after the State's case is
concluded, stating that there is not enough evidence to
convict the defendant. She stressed that some judges do not
want to take this responsibility. The trial is left to
continue and after a jury reaches a verdict the judge rules
that the verdict is against the weight of evidence. She
maintained that if there is not enough evidence that the
judge should grant a motion for judgement of acquittal.
Ms. Otto referred to section 27. She noted the difficulty
of locating witnesses after time. Section 27 changes the
time for motion of a new trial from 2 years to 180 days
after final judgement. She noted that if new evidence is
discovered after 180 days a motion for post conviction
relief could be entertained.
In response to a question by Representative Navarre, Ms.
Otto acknowledged that it is uncommon for courts to grant a
new trial after a jury verdict. Ms. Otto reiterated that it
is more appropriate for a judge to not allow a case to go to
jury if the weight of the evidence is insufficient. She
maintained that a judgement of acquittal should be granted.
Ms. Otto discussed concerns by ACLU in regards to page 23,
lines 27 and 28. She noted that there is a new civil rule
that has been passed by the Court that states that once a
case is filed everybody has to disclose everything that is
relevant. She stated that the Department of Law does not
want this rule to apply in prisoner cases because they do
not want to give out correctional officer's addresses and
phone numbers and other such safety information.
Ms. Otto noted that page 3, lines 24 - 26 applies to civil
litigation by prisoners of the state.
Ms. Mock stated that in order to file an ineffective
assistance claim that a determination must first be made by
a lower court. She summarized that litigation would be
increased by this change. She estimated that the work would
be 10 to 20 times greater than filing an affidavit stating
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that the client did not have an appeal filed on their
behalf. She noted that defendant lawyers will be required
to certify under oath that claims are not frivolous.
Ms. Mock noted that Rule 35(b) states that the Court cannot
reduce or modify a sentence unless conditions have changed
so that the original purpose of the sentence is being
fulfilled. She maintained that a court would not modify a
sentence after 60 days. She stated that a person who
appeals their sentence should not be penalized.
HB 201 was HELD in Committee for further discussion.
ADJOURNMENT
The meeting adjourned at 4:00 p.m.
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