Legislature(1997 - 1998)

02/04/1997 01:35 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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                     HOUSE FINANCE COMMITTEE                                   
                        FEBRUARY 4, 1997                                       
                            1:35 P.M.                                          
                                                                               
  TAPE HFC 97 - 17, Side 1, #000 - end.                                        
  TAPE HFC 97 - 17, Side 2, #000 - end.                                        
  TAPE HFC 97 - 18, Side 1, #000 - #343.                                       
                                                                               
  CALL TO ORDER                                                                
                                                                               
  Co-Chair Gene Therriault called  the House Finance Committee                 
  meeting to order at 1:35 P.M.                                                
                                                                               
  PRESENT                                                                      
                                                                               
  Co-Chair Hanley               Representative Kelly                           
  Co-Chair Therriault           Representative Grussendorf                     
  Representative Davies         Representative Martin                          
  Representative Davis          Representative Moses                           
  Representative Foster         Representative Mulder                          
                                                                               
  Representative Kohring was not present for the meeting.                      
                                                                               
  ALSO PRESENT                                                                 
                                                                               
  Representative  Brian  Porter;   Jayne  Andreen,   Executive                 
  Director,  Council  on Domestic  Violence &  Sexual Assault,                 
  Juneau; Anne Carpeneti, Assistant Attorney General, Criminal                 
  Division,   Department   of    Law;   Tom   Wright,   Staff,                 
  Representative   Ivan   Ivan;   Dennis  Poshard,   Director,                 
  Charitable Gaming  Division,  Department  of  Revenue;  Paul                 
  Sweet,  (Testified  via   teleconference),  Mat-Su;   Janice                 
  Lienhart,  (Testified  via teleconference),  Anchorage; Dave                 
  Lambert, (Testified via teleconference), Fairbanks.                          
                                                                               
  SUMMARY                                                                      
                                                                               
  HB 9      An Act relating to the right of  crime victims and                 
            victims  of juvenile  offenses  to  be present  at                 
            court proceedings;  and amending Rule  615, Alaska                 
            Rules of Evidence.                                                 
                                                                               
            HB  9   was   HELD  in   Committee   for   further                 
            consideration.                                                     
                                                                               
  HB 20     An Act relating to dog mushers' contests.                          
                                                                               
            CS HB 20 (FIN) was reported out of Committee  with                 
            a "do pass" recommendation and  with a zero fiscal                 
            note by the Department of Revenue dated 1/24/97.                   
                                                                               
                                1                                              
                                                                               
                                                                               
  HOUSE BILL 9                                                                 
                                                                               
       "An Act  relating  to the  right of  crime victims  and                 
       victims of  juvenile offenses  to be  present at  court                 
       proceedings;  and amending  Rule 615,  Alaska Rules  of                 
       Evidence."                                                              
                                                                               
  Co-Chair  Therriault  explained that  Representative Porter,                 
  the   sponsor  of   HB  9,   had   been  requested   by  the                 
  Administration  to  use  the legislation  as  a  vehicle for                 
  additional language.  He clarified  that the Committee would                 
  take testimony on  the bill  and then  it would  be held  in                 
  Committee for rescheduling.                                                  
                                                                               
  REPRESENTATIVE   BRAIN  PORTER   noted   that  the   Alaskan                 
  Constitution had been amended  in 1994 adding Article  #1, a                 
  new  Section  #24,  which  specifically  extended  to  crime                 
  victims,  "The  right  to obtain  information  about  and be                 
  allowed  to  be   present  at   all  criminal  or   juvenile                 
  proceedings  where  the   accused  has   the  right  to   be                 
  present...".                                                                 
                                                                               
  He  added,   at  least   two  Superior   Court  judges   are                 
  interpreting the Alaska Statutes and Rule #615, Alaska Rules                 
  of  Evidence,  to  exclude victims  of  crimes  and juvenile                 
  offenses from being present in the courtroom during  a trial                 
  of the accused until after the victim has testified.                         
                                                                               
  HB  9  was created  to  implement  the mandate  of  the 1994                 
  Amendment  to  the   Constitution  and  to  make   clear  to                 
  judiciary, a crime victim's right to be present at the trial                 
  and  other proceedings  of  the accused,  including juvenile                 
  proceedings,  whenever  the  accused  has  the right  to  be                 
  present.                                                                     
                                                                               
  Representative  J.  Davies asked  if  a balance  would occur                 
  incorporating    the    two    constitutional    provisions.                 
  Representative Porter responded that the right of the victim                 
  to be present in court anytime  the defendant is present, is                 
  already included in the  Constitution.  Previously, whereas,                 
  the victims rights were in statute and the defendants rights                 
  were  in  the  Constitution,  the  defendants  rights  being                 
  constitutional  had  preference  over  statutory  rights  of                 
  victims.   The  court  should create  the  balance and  thus                 
  determine whose rights should prevail.                                       
                                                                               
  JAYNE  ANDREEN,  EXECUTIVE  DIRECTOR,  COUNCIL  ON  DOMESTIC                 
  VIOLENCE & SEXUAL ASSAULT, JUNEAU,  spoke in support of  the                 
  legislation.   She stated  that  equal rights  would send  a                 
  clear message that victims have the  right to be present and                 
  heard.                                                                       
                                                                               
                                                                               
                                2                                              
                                                                               
                                                                               
  Co-Chair  Therriault   spoke  regarding   a  spousal   abuse                 
  situation, asking if  that situation would be  a concern for                 
  the Council.  Ms.  Andreen stressed that there are  a number                 
  of  domestic violence  victims who are  willing and  want to                 
  participate in  the prosecution of  their abuser.   Cases do                 
  exist  in  which  the victims  do  not  want  to be  present                 
  throughout  the  trial.   In  those situations,  the alleged                 
  offender  could make  eye  contact,  thus  manipulating  and                 
  controlling  the victim  further.   She  stated that  it was                 
  important  to  clearly  stipulate that  victims  would  have                 
  either option.   With the support and  advocacy, the victims                 
  will be assisted in making a  determination as to whether it                 
  would be in their  best interest to be present  during court                 
  proceedings.                                                                 
                                                                               
  PAUL SWEET, (TESTIFIED VIA TELECONFERENCE), MAT-SU, spoke in                 
  support  of the  legislation, although,  questioned how  the                 
  bill   would    affect   appeals   on    mandatory   parole.                 
  Representative Porter explained that the victims right to be                 
  present at any  court proceeding in which  the defendant was                 
  present,  would  continue throughout  the  legislation.   He                 
  added,  other  provisions  exist  in   statute  and  in  the                 
  Constitution  that  allow  the  victim  to be  notified  and                 
  present  their  point of  view.   The  victim would  be well                 
  covered throughout the process.                                              
                                                                               
  Mr. Sweet echoed  his concern  regarding the victims  rights                 
  during  the  appeal process.   Representative  Porter agreed                 
  that the  victim should be  notified when the  defendant was                 
  scheduled for an appeal.  Mr.  Sweet stressed that the court                 
  must be constitutionally  required to notify the  victims of                 
  the  scheduled   appeal  process.     Representative  Porter                 
  acknowledged  that the  revised version  of the  legislation                 
  will incorporate language addressing that concern.                           
                                                                               
  Representative  Porter  added,   an  abundance  of  statutes                 
  currently  exist, which address  the notification process of                 
  the  victims.    The committee  substitute  will  attempt to                 
  consolidate information so that the  victim can look at  the                 
  Victim's Right Statute and  have information clearly defined                 
  in one place.                                                                
                                                                               
  Representative  J.   Davies  advised  that  there  is  other                 
  legislation which addresses victim notification.                             
                                                                               
  JANICE LIENHART, (TESTIFIED VIA  TELECONFERENCE), ANCHORAGE,                 
  voiced support of the proposed  legislation.  She noted that                 
  the Department of  Corrections (DOC)  is supposed to  notify                 
  all victims,  although, some "fall through the  cracks" as a                 
  result of the case volume.   For a victim of crime to  heal,                 
  they need to  have all the information  regarding the crime,                 
  and  then  to be  a part  of  the trial  process if  they so                 
                                                                               
                                3                                              
                                                                               
                                                                               
  desire.  This  will empower the  victim to  have a sense  of                 
  closure around the situation.                                                
                                                                               
  ANNE   CARPENETI,   ASSISTANT  ATTORNEY   GENERAL,  CRIMINAL                 
  DIVISION, DEPARTMENT  OF LAW, testified in support of the HB
  9.  She  added that the  legislation is similar to  Governor                 
  Knowles Omnibus Bill.   That  legislation intends to  remedy                 
  occasions  when judges  have  excluded  victims  from  court                 
  proceedings,  even after  the  constitutional amendment  was                 
  ratified.    The  ability   to  cross-examine,  answers  any                 
  possible problems of due process that arise on behalf of the                 
  defendant.  She commented that it is  important that victims                 
  see the  justice system  prosecute the  defendants on  their                 
  behalf.                                                                      
                                                                               
  Representative J. Davies  asked if a  more fair trial  could                 
  exist, if there was no cross-examination, suggesting that it                 
  could taint the trial.  Ms. Carpeneti disagreed, noting that                 
  cross-examination  was the  best way  to get  at  the truth.                 
  Whether  or not a victim or a witness has heard testimony in                 
  a trial, they are subject to cross-examination.  There is no                 
  good reason why the  victim should not be present  and watch                 
  the justice system proceed against the defendant.                            
                                                                               
  Representative  J. Davies  noted  that his  amendments would                 
  encourage testimony  early on in  the trial.   Ms. Carpeneti                 
  did  not agree with that positioning, stating that the order                 
  of  witnesses  is   a  tactile  position  and   neither  the                 
  prosecution  or  the defense  would  want to  schedule their                 
  witnesses in any particular order.  An additional problem to                 
  that approach would be when a witness was recalled.                          
                                                                               
  Co-Chair  Therriault  referenced  a sheet  in  the  handout,                 
  received  from  the  Court System  from  the  Criminal Rules                 
  Committee minutes regarding:   Evidence Rule 615:  Exclusion                 
  of Victims from Courtroom.  That handout states:                             
                                                                               
       "The committee  reviewed the  Department of  Law's                      
       request (dated  July 10, 1996)  that Evidence Rule                      
       615  be  amended  to prevent  victims  from  being                      
       excluded from  proceedings at which  the defendant                      
       is  present.   Chuck  Pengilly expressed  the view                      
       that Rule 615  should be eliminated entirely.   He                      
       would   like  to  do   further  research  on  this                      
       possibility.   The  committee agreed,  however, in                      
       the meantime, to ask the  supreme court to include                      
       the following note at the end of the rule:                              
                                                                               
            This   rule   does  not   authorize  the                           
            exclusion of a crime victim, as  defined                           
            by  law, from any  hearing at  which the                           
            defendant  has  a right  to  be present.                           
                                                                               
                                4                                              
                                                                               
                                                                               
            See Alaska Const. art. I, & 24."                                   
                                                                               
  HB 9 was HELD in Committee for further consideration.                        
  HOUSE BILL 20                                                                
                                                                               
       "An Act relating to dog mushers' contests."                             
                                                                               
  TOM WRIGHT, STAFF, REPRESENTATIVE IVAN IVAN,  explained that                 
  HB  20  would  authorize the  dog  mushers'  associations to                 
  conduct statewide games of chance.   The Division recognizes                 
  those associations which have been in existence for at least                 
  three years, with at least 25 Alaskan members and are a "not                 
  for profit" organization.   Prizes would be awarded for  the                 
  nearest guess of three uncertain elements in a sled dog race                 
  which were not determined before the start of the race.  The                 
  intent would  be  to  provide  a mechanism  to  assist  race                 
  organizing committees to become financially self-sufficient.                 
                                                                               
  Passage of HB  20 would also allow  participants to purchase                 
  raffle  tickets  in  which the  contestant  would  guess the                 
  checkpoints, finish line arrival  times, temperature when  a                 
  particular  team  crosses  the finish  line,  and  the total                 
  number of dogs that finish the race, etc.   The dog mushers'                 
  association  would  administer the  contests  in conjunction                 
  with State regulatory authority.                                             
                                                                               
  Co-Chair  Therriault  distributed Amendment  #1.    [Copy on                 
  file-Attachment #1].   Mr.  Wright spoke  to the  amendment,                 
  noting  that  it  had  been  brought  to  the  attention  of                 
  Representative  Ivan  that the  language  in Section  #2 was                 
  unclear and could  possibly prohibit the conducting  of sled                 
  dog races.   He  stressed that  this was  not the  intent of                 
  Representative Ivan.                                                         
                                                                               
  Representative Martin asked if  "raffle" referred to  prizes                 
  or  money.   Mr.  Wright replied  that  would depend  on the                 
  association.   Representative Martin suggested  that "could"                 
  be  a  play  on  words  and  recommended   the  language  be                 
  consistent.  He questioned why the language "raffle tickets"                 
  was being  used.   Co-Chair Therriault  identified that  the                 
  only language  being added was  to Section #1,  "dog mushers                 
  contest".    Raffle tickets  would  not be  included  as the                 
  prize.    Representative  Martin felt  that  the  bill could                 
  encourage  "gambling".    Mr.   Wright  clarified  that  the                 
  language  used in the sponsor  statement was not intended to                 
  confuse anyone.   He agreed  that use of  the word  "ticket"                 
  would be adequate terminology for the raffle.                                
                                                                               
  (Tape Change, HFC 97-17, Side 2).                                            
                                                                               
  Representative  Martin  spoke  to   the  zero  fiscal  note,                 
                                                                               
                                5                                              
                                                                               
                                                                               
  suggesting  that  the  legislation could  add  an additional                 
  twelve races.   He  asked how  the Department  would oversee                 
  "above-board" operations of the legislation.                                 
                                                                               
  DENNIS  POSHARD, DIRECTOR,  DIVISION  OF CHARITABLE  GAMING,                 
  DEPARTMENT OF REVENUE,  responded that the  activities would                 
  fall under the  same minimum charity provisions  and expense                 
  limitations of the  ten percent  adjusted gross income  that                 
  other activities must  adhere to.   The amount of time  that                 
  the Division would  spend on  enforcing provisions would  be                 
  insignificant.  He  noted that pull-tabs, bingo  and raffles                 
  provide ninety-nine percent of charity money in Alaska.                      
                                                                               
                                                                               
  Mr. Poshard reiterated that he did not anticipate additional                 
  costs for the Department to implement  the legislation.  The                 
  Department currently  is implementing a new  computer system                 
  which will  free-up a  significant amount of  time for  data                 
  entry work and processing applications.                                      
                                                                               
  Co-Chair Hanley asked  if an  entity would need  to be  non-                 
  profit in order to  qualify.  Mr. Poshard advised,  in order                 
  to receive  a permit for any charitable gaming activity, the                 
  association  must be  a non-profit  organization, having  at                 
  least  twenty-five  Alaskan  members,  and  having  been  in                 
  existence  for at  least  three years  before  the time  the                 
  application was filed.  An additional requirement exists for                 
  the type of gaming that is  proposed in Section #B, limiting                 
  that contest to a "dog mushers association".                                 
                                                                               
  Co-Chair Hanley asked  if the new  games would fit into  the                 
  cap of a  gross amount an organization would need to have to                 
  qualify to receive a permit.  Mr. Poshard thought that would                 
  fall under the cap  as would any gaming activity.   A cap is                 
  based on prize limit awards.                                                 
                                                                               
  Representative Grussendorf asked  if there would be  a limit                 
  to  the  number  of  races conducted.    Mr.  Poshard  noted                 
  currently,  statute  provides  a  yearly  $1  million dollar                 
  limitation.  The limitation is  determined through the award                 
  of prizes.   The Division  requires every charitable  gaming                 
  activity  to  provide  a  financial  statement  including  a                 
  detailed listing of expenses associated directly with gaming                 
  activities and a  listing of how  profits were spent.   Each                 
  statement is reviewed closely by the Division.                               
                                                                               
  Mr. Poshard continued,  the cap is established  on the prize                 
  award up to $1 million dollars and including all activities.                 
  There is no language indicating that the activities can  not                 
  be statewide; this does not differ from what currently is in                 
  statute.  Presently, AS 05.15.690(12)  states that:  "Prizes                 
  can be awarded for the correct guess of the racing time of a                 
                                                                               
                                6                                              
                                                                               
                                                                               
  dog team".  There is no language  which limits it to being a                 
  statewide contest.                                                           
  Representative  Martin  reiterated   his  concern  with  the                 
  potential fiscal impact on  the Department.  He asked  if an                 
  association could hire  an operator.  Mr.  Poshard commented                 
  that there exists no prohibition  from an association hiring                 
  an operator.  The Division could  issue an operators license                 
  if necessary, although,  the operator  would be required  to                 
  "put  up" a $25 thousand dollar bond.  Representative Martin                 
  stressed his concern in bringing a new element to gaming and                 
  "gambling".                                                                  
                                                                               
  In response  to  Representative  John  Davies,  Mr.  Poshard                 
  stated that  the agencies would have to register and receive                 
  a permit  with the Division in order to award prizes.  Those                 
  activities are subject to the same provisions that any other                 
  gaming activities are subject to.   He added, there is a 10%                 
  minimum contribution, although there exists no maximum award                 
  amount.  On raffle type activities, the expected norm return                 
  would be 30% to 40% of the adjusted gross.                                   
                                                                               
  Representative Gary Davis asked about  the amount of revenue                 
  the   Department  would  expect   to  receive   through  tax                 
  associated with the legislation.  Mr. Poshard explained, the                 
  main income received  would be  generated through  a 3%  tax                 
  associated  with   pull  tabs   and  collected   from  those                 
  distributors.    There  is  a  1%  tax  fee  placed  on  any                 
  organizations  net  proceeds.    The Department  issues  few                 
  mushing permits and little money is associated with these as                 
  they tend to award more prizes than funds received.                          
                                                                               
  Representative Davis commented that each year there is a lot                 
  of time taken with this type legislation.  He suggested that                 
  the Legislature  should  not  be  involved  with  permitting                 
  decisions;  instead  it should  be  handled directly  by the                 
  Division which has the expertise  and regulations already in                 
  place.                                                                       
                                                                               
  In response to  Co-Chair Hanley, Mr. Poshard  explained that                 
  "raffles and  lotteries" were  defined in  AS 05.615.690.37.                 
  They are basically defined in the same way:  "The selling of                 
  rights to participate in the awarding of prizes in a game of                 
  chance, conducted by  the drawing for  prizes, by lot".   He                 
  agreed that  the line  between a  raffle and  a lottery  was                 
  gray.                                                                        
                                                                               
  Representative Martin  stated that  the legislation  did not                 
  meet the  definition of a raffle, but rather a lottery.  Mr.                 
  Poshard  explained  that  it was  different  because  of the                 
  distinction between  having an active  guess on the  part of                 
  the  participant rather  than a  drawing by  lot.   Co-Chair                 
  Hanley added that the result would be different.                             
                                                                               
                                7                                              
                                                                               
                                                                               
  Representative Grussendorf referenced  Section #1,  pointing                 
  out  the  discrepancy  between the  five  year  snow machine                 
  licensure  requirements,  and  those  of  the  dog  mushers'                 
  contests.  Mr. Poshard emphasized that if an organization or                 
  dog mushing association formed at this time, they would have                 
  to  wait  three  years  before  eligibility  to  any  gaming                 
  activity.  The five  year limit was placed on  snow machines                 
  and resulted from an amendment by Senator Frank last year in                 
  Senate Finance.                                                              
                                                                               
  Co-Chair Therriault commented that  Mr. Lambert of Fairbanks                 
  disclosed concerns with the legislation.  Amendment #1 would                 
  address these concerns by deleting  the language, "conducted                 
  by a dog mushers' association,".  [Copy on file].                            
                                                                               
  DAVE  LAMBERT,  (TESTIFIED  VIA TELECONFERENCE),  FAIRBANKS,                 
  noted  his support for  Amendment #1.  He  said that the Dog                 
  Mushers' Association  had been  near extinction  until three                 
  years ago when they implemented pull tabs.  He observed that                 
  the proposed legislation would give  the public a "personal"                 
  interest in dog racing.                                                      
                                                                               
  (Tape Change, HFC 97-18, Side 1).                                            
                                                                               
  Representative  Martin   voiced  concern  with   passage  of                 
  Amendment  #1.    He  felt  it  would  open  the  market  to                 
  professional gambling.  Mr. Lambert pointed out that many of                 
  the current  dog mushing races  would be eliminated  if that                 
  language remained in the bill.   Representative Martin asked                 
  if contests were  limited to those  that were in the  system                 
  before 1959.   Mr. Poshard  explained that the  Division may                 
  issue permits or  licenses to conduct any  of the activities                 
  listed in Section #B.  Any other activities can be listed as                 
  permits, if they existed prior to 1959.                                      
                                                                               
  Representative  Grussendorf  recommended  that snow  machine                 
  classics be included in the  amendment.  Co-Chair Therriault                 
  stated  that  by  making  an   additional  deletion  to  the                 
  amendment, would allow other entities to operate races.  Mr.                 
  Poshard  added, Amendment  #1 would  take (12)A back  to the                 
  current language as it exists in statute.                                    
                                                                               
  Co-Chair Hanley MOVED to adopt Amendment #1.  Representative                 
  Martin  OBJECTED for  purposes  of  discussion.   Discussion                 
  followed regarding elimination of language in Section  (12)A                 
  and the effect  that would have  on the language in  Section                 
  (12)B.    Representative  Martin agreed  that  only  the dog                 
  mushing  association  should  have  exclusive rights.    Mr.                 
  Lambert  commented  that  the three  year  eligibility quota                 
  could  affect  dog  mush  racing.     Representative  Martin                 
  WITHDREW  his  OBJECTION to  Amendment #1.   There  being NO                 
                                                                               
                                8                                              
                                                                               
                                                                               
  additional OBJECTION, Amendment #1 was adopted.                              
                                                                               
  Representative Grussendorf suggested adding language to Page                 
  1,  Line  9, indicating  dog  mushing activities.   Co-Chair                 
  Hanley summarized  that the new  games of chance  in Section                 
  (B) would  need to  be in  existence for  at least  five (5)                 
  years rather than the current three (3) years before contest                 
  permitting.  Co-Chair Therriault recommended referencing  AS                 
  05.15.690(12)B in  that  language change.   Co-Chair  Hanley                 
  suggested making the motion a conceptual amendment for Legal                 
  Services  to  draft.   Mr.  Wright recommended  the language                 
  change be inserted on Page 1, Line 9.                                        
                                                                               
  Representative J. Davies  asked why  the change was  needed.                 
  Representative  Grussendorf  thought  that three  (3)  years                 
  could  make  this  a  more  viable option.    Representative                 
  Grussendorf  MOVED   to  adopt  the   conceptual  amendment.                 
  Representative G. Davis OBJECTED.                                            
                                                                               
  A roll call vote was taken on the MOTION.                                    
                                                                               
       IN FAVOR:      Grussendorf, Martin, Moses,  Therriault,                 
                      Hanley                                                   
       OPPOSED:       Davis, Foster, Kelly, Mulder, Davies                     
                                                                               
  The MOTION FAILED (5-5).                                                     
                                                                               
  Representative Foster MOVED to report CS  HB 20 (FIN) out of                 
  Committee  with  individual  recommendations  and  with  the                 
  accompanying fiscal note.  Representative Martin OBJECTED.                   
                                                                               
  A roll call vote was taken on the MOTION.                                    
                                                                               
       IN FAVOR:      Foster, Grussendorf,  Moses, Mulder,  J.                 
                      Davies, G. Davis, Hanley, Therriault                     
       OPPOSED:       Kelly, Martin                                            
                                                                               
  The MOTION PASSED (8-2).                                                     
                                                                               
  CS  HB 20 (FIN)  was reported  out of  Committee with  a "do                 
  pass" recommendation  and with  a zero  fiscal  note by  the                 
  Department of Revenue dated 1/24/97.                                         
  ADJOURNMENT                                                                  
                                                                               
  The meeting adjourned at 3:15 P.M.                                           
                                                                               
                                                                               
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