Legislature(2003 - 2004)
05/14/2003 08:50 AM House FIN
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HOUSE FINANCE COMMITTEE
May 14, 2003
8:50 A.M.
TAPE HFC 03 - 91, Side A
TAPE HFC 03 - 91, Side A
CALL TO ORDER
Co-Chair Williams called the House Finance Committee meeting
to order at 8:50 A.M.
MEMBERS PRESENT
Representative John Harris, Co-Chair
Representative Bill Williams, Co-Chair
Representative Kevin Meyer, Vice-Chair
Representative Berkowitz
Representative Mike Chenault
Representative Richard Foster
Representative Mike Hawker
Representative Kerttula
Representative Carl Moses
Representative Bill Stoltze
Representative Jim Whitaker
MEMBERS ABSENT
Representative Eric Croft
Representative Reggie Joule
ALSO PRESENT
Representative Peggy Wilson; Diane Barrans, Executive
Director, Postsecondary Education Commission, Department of
Education; Camille Soleil, Alaska Nurse Association,
Anchorage; Anne Carpeneti, Assistant Attorney General, Legal
Services Section, Criminal Division, Department of Law;
Laurie Hugonin, Executive Director, Alaska Network on
Domestic Violence and Sexual Assault
PRESENT VIA TELECONFERENCE
John Novak, Assistant Attorney General, Department of Law,
Anchorage; Linda Wilson, Deputy Director, Alaska Public
Defender Agency, Anchorage
SUMMARY
HB 211 An Act relating to a student loan repayment
program for nurses, and amending the duties of the
Board of Nursing that relate to this program; and
providing for an effective date.
CS HB 211 (HESS) was reported out of Committee
with a "do pass" recommendation and with zero note
#1 by the Department of Community & Economic
Development and a new fiscal note by the Alaska
Postsecondary Commission.
HB 216 An Act relating to municipal taxation of refined
fuel products.
HB 216 was SCHEDULED but not HEARD.
HB 244 An Act relating to the Code of Criminal Procedure;
relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating
to rights of prisoners after arrest; relating to
discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and
right to representation in criminal proceedings;
relating to sentencing, probation, and
discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412,
609, and 803, Alaska Rules of Evidence; and
providing for an effective date.
HB 244 was HELD in Committee for further
consideration.
HB 267 An Act relating to the Alaska Railroad;
authorizing the Alaska Railroad Corporation to
provide financing for the acquisition,
construction, improvement, maintenance, equipping,
or operation of facilities for the transportation
of natural gas resources within and outside the
state by others; authorizing the Alaska Railroad
Corporation to issue bonds to finance those
facilities; and providing for an effective date.
HB 267 was SCHEDULED but not HEARD.
CS SB 106(FIN)
An Act relating to tires; and providing for an
effective date.
CS SB 106 (FIN) was SCHEDULED but not HEARD.
CS SB 128(FIN) am
An Act relating to licensing common carriers to
dispense alcoholic beverages; and providing for an
effective date.
CS SB 128 (FIN) am was SCHEDULED but not HEARD.
HOUSE BILL NO. 244
An Act relating to the Code of Criminal Procedure;
relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to
rights of prisoners after arrest; relating to
discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right
to representation in criminal proceedings; relating to
sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure,
and Rules 404, 412, 609, and 803, Alaska Rules of
Evidence; and providing for an effective date.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW, stated that
HB 244 was legislation resulting from long-time concerns
experienced by prosecutors statewide. The legislation will
address procedural provisions in law. She requested that
Mr. Novak address the provisions of the bill.
JOHN NOVAK, (TESTIFIED VIA TELECONFERENCE), ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, summarized
the sectional analysis of changes made to the House
Judiciary Committee version.
· Section 1. He stated that under current law,
lawyers have the right to interrupt and/or
stop the interview. These provisions clarify
the rights of the attorney.
· Section 2. This section is a revision,
complying with the current status of the law.
It corrects the statute to comply with the
directive of the Alaska Supreme Court.
· Sections 3, 4, 6, & 7. These sections deal
with a situation involving multiple victims.
Under current law, the Courts can impose the
same sentence, all at the same time. Under
the proposed bill, it is designed so that the
Courts would have to impose some of the time
consecutively. In a murder context, the
Courts would have to impose a mandatory
minimum sentence consecutively.
· Section 5. This section speaks to proving a
prior conviction, which could trigger
presumptive sentencing. The provision limits
the questions to the prior conviction to two
items, the right to a lawyer and to a jury
trial. Under current law, the defendant
could relitigate the out-of-state conviction.
The new section creates some degree of
finality for not relitigating an out-of-state
conviction within Alaska.
· Sections 8, 9 & 10. These sections deal with
discovery and disclosure to help avoid
delays. The provisions will help to avoid
surprise attacks, moving the deadline from 10
to 30 days, before the trial to give notice.
This action makes it more fair and the
disclosure up-front in order to avoid
situations that continue cases and
surmounting costs.
· Section 11. This section deals with evidence
and its use in the trial. The provision
addresses a specific circumstance of
compliance under waiver. Under current law,
the prosecutor cannot use prior statements.
The new provision allows that if that
scenario should occur, the prosecution could
use the prior statement. The State would
need to prove that the prior statement was
voluntary and not forced. The provision
would also apply to evidence used to impeach
a witness.
· Section 12. This section deals with the
admissibility of conviction to impeach a
witness. Certain sentences can be used from
the date of conviction for five years. The
prosecution could use the prior conviction.
Often times, the person is not out of jail
before the time lapses. The new language
provides that the clock starts running from
the time that they are unconditionally
discharged from the offense.
· Section 13. This section deals with the
context of domestic violence cases. Unless
there is intervention, this type scene could
escalate and someone could be killed in the
head of passion. The proposed legislation is
another step in an effort to affectively
intervene and become involved. It allows for
admission given within 24-hours of the
domestic violence circumstance.
Representative Kerttula inquired about the consecutive and
concurrent sentencing and what the previous statute had
intended. Representative Kerttula questioned how to address
"intent" in that type of case. Mr. Novak responded that in
1982, the Legislature had enacted current law. The intent
of that addressed when there were multiple victims and the
total of consecutive time. He commented that language had
not been drafted well and when the Court interpreted it, it
was most favorable for the defendants, thus giving the
Court's permission to run the time consecutively.
Furthermore, the language expressed legislative preference
for consecutive sentencing.
Mr. Novak noted that regarding the second concern, the
language provides for the mandatory minimum sentence, which
would have to be consecutive for the most serious crimes.
In certain circumstances relating to multiple murders, the
Court would have to impose the mandatory minimum sentence
for each conviction. In the current system, the victim's
families often feel that their victim "did not count". The
proposed language recognizes that each of the persons
included in the multiple murders has value and that the
Court will inflict on the guilty party at least the
mandatory minimum. All victims want the guilty person to be
required to serve consecutive jail time.
Representative Kerttula inquired if that language could
apply if there had been a car crash, classified as an
assault of behavior. She believed that the same "guilt"
could apply in that situation and would run the consecutive
minimum sentencing. Mr. Novak explained that in a car
crash circumstance, if all victims in the car were hurt, but
not necessarily killed, the guilty party would be convicted
for a crime against a person. Then the Alaska Court System
would have to impose at least one day of consecutive time.
The sentence would not be as dramatic as it would be on the
"murder end".
Representative Kerttula acknowledged that was correct unless
of course that person had a previous charge. Mr. Novak
replied that the Alaska Court System could run them
concurrently except for the one-day period until the highest
level of offense was met. The language would not go all the
way back to the Court's original intent.
Representative Kerttula commented that the person would not
be under presumptive sentencing unless it had been under the
more heinous type of crimes. Mr. Novak corrected that the
presumptive sentencing would apply. The Court's would have
to indicate that presumptive sentencing was served with a
consecutive sentence of at least one day.
Representative Kerttula pointed out that it would not be
presumptive for the following sentence but only on the
first. Mr. Novak responded that it would be presumptive but
not necessarily consecutive.
Representative Berkowitz commented that if there are
multiple victims, two years would be charged for each and if
there were four victims, it would total eight years. Under
the proposed scheme, that sentence would be two years and
three days. Mr. Novak agreed that was correct.
Representative Berkowitz referenced Section 5, which states
that the defendant could challenge the validity of the prior
conviction only if the defendant was denied right to
counsel. He pointed out that in many cases, there is newly
discovered evidence or DNA. He asked if there was any other
provision in the law that would allow someone to challenge a
prior conviction. Mr. Novak replied that the idea is that
if there were an out-of-state conviction, the person would
re-litigate that in the state that it occurred. However,
for Alaska prior convictions, the person has the right to
appeal.
Representative Berkowitz asked the mechanism for someone
that had served a term in another state and then came to
Alaska and was convicted for something else. He asked what
would be the forum for them to use to challenge the prior
conviction. Mr. Novak explained that they would have to
challenge it in the state of origin and under the law of
that jurisdiction. In Alaska, there is a provision for the
post conviction relief window of two years.
Representative Berkowitz recommended that section needs a
"trap door" to allow the defendant to contest or challenge
the prior conviction if there is certain evidence made,
which could prevent a "miscarriage of justice". Mr. Novak
explained that if the Department found out that there had
been a wrongful prior conviction, then the prosecutor would
recognize that and undo the situation existing in Alaska.
The concept is that in Alaska, a new conviction would be
discussed. Deciding if everything done previously was
proper would be associated with the previous case.
Representative Berkowitz stated that when in a presumptive
sentencing case, there must be advantages accrued in the
prosecution to raise credible challenges.
Representative Berkowitz referenced Section 8 and asked what
"the defendant would be likely to rely upon for the defense"
mean. Mr. Novak responded that language would relay the
idea and would provide for giving notice to things that you
may later choose not to do and would provide for avoiding
the prospect of disclosure. The term could give incentive
and notice for defenses and place the cards on the table.
Representative Berkowitz referenced Section 8, asking about
the use of "timely" on Page 5, Line 20. He suggested
"timely" could provide enough discretion than the fixed 30-
day rule.
Mr. Novak advised that the idea was to give a clearer
understanding and that giving 30-days provides certainty.
He added that the Court would be able to relax the 30-day
rule through Rule 53 and that in the interest of justice,
the Court could extend the rule. The idea is to provide
certainty regarding what "timely" means.
Vice-Chair Meyer noted that the HB 244 would be HELD in
Committee for further consideration.
HOUSE BILL NO. 211
An Act relating to a student loan repayment program for
nurses, and amending the duties of the Board of Nursing
that relate to this program and providing for an
effective date.
REPRESENTATIVE PEGGY WILSON explained that Alaska and the
nation are experiencing a severe shortage of nurses. HB 211
would establish the Alaska Nurse Recruitment Loan Repayment
Program, which could help to change that. The program would
offer up to $2,000 per year, not to exceed $10,000 total for
nurses to repay nursing loans. Hopefully the incentive will
attract new nurses to the State and encourage Alaskans to
pursue nursing vocations here in Alaska.
In 2002, the Alaska Colleagues in Caring, in collaboration
with the Alaska Hospital and Nursing Home Association
(AHNHA), surveyed facilities in Alaska regarding nursing
workforce needs. Results showed that vacancy rates for
Registered Nurses (RN) had increased from 5.7% in 2000 to
11.5% in 2002, with increasing vacancy rates projected into
the future. Facilities in western and northern Alaska
reported a vacancy rate of over 20% and according to
information from other sources, the vacancy rate in some
remote areas of Alaska is as high as 35 percent.
Representative Wilson stated that to qualify for loan
reimbursement, the individual must be hired as a nurse in
Alaska on or after July 1, 2003, be licensed to practice as
a nurse in Alaska, work as a nurse in the State throughout
the loan repayment period, and have outstanding educational
loans from a recognized lending institution. Additional
eligibility criteria and guidelines for the loan program
would be set in regulations adopted by the Board of Nursing,
in consultation with the Alaska Commission on Postsecondary
Education. That could include guidelines on establishing
priorities for participation in the loan repayment program
if funding for the program was not adequate to meet the
need. The guidelines may include determinations based on
areas of the State and nursing specialties affected by
shortages.
Representative Wilson commented that funding for the program
might be appropriated from the Student Loan Corporation
dividend (the return of contributed capital authorized in AS
14.42.295(a)) or alternate State, federal, and/or other
sources. The executive director of the Alaska Commission on
Postsecondary Education would administer the program.
Vice Chair Meyer noted that outside testimony had been
closed on HB 211 and if there were questions, the Department
could respond.
Representative Hawker understood that the legislation would
provide a fund to repay qualifying educational loans for
students entering the nursing program. He asked if there
were any "sidebars" regarding what education loans might be
paid. Representative Wilson replied that they would have to
be nursing loans for classes to become a nurse. There is a
criterion established. The guidelines would be determined
by the Board of Nursing in consultation with the Alaska
Commission on Postsecondary Education. If the funds are not
available, then who receives the loans would be limited to
the areas most critical need.
Representative Hawker asked if it would make any difference
at what institution the nurse received their degree.
Representative Wilson explained that the regulations are not
yet known and that the Board of Nursing and Alaska
Postsecondary would address those concerns.
DIANE BARRANS, EXECUTIVE DIRECTOR, POSTSECONDARY EDUCATION
COMMISSION, DEPARTMENT OF EDUCATION, advised that there are
no constraints on where the student goes, however, they
would have to be pursuing education in nursing. It would be
a loan to an individual to attend wherever they choose if it
were an accredited institution that leads to the nursing
credential.
Representative Hawker inquired if there was any incentive to
achieve their education in an Alaskan facility. Ms. Barrans
replied that language had not been specifically included
because of the University of Alaska's ability to compete on
a low cost basis with other institutions.
Representative Hawker inquired if there were an anticipated
number of people applying for the benefits under the bill.
Ms. Barrans responded that nurses in the program at the
University of Alaska would 100% qualify as long as they
remain in Alaska and practice in the State.
Representative Hawker noted the costs associated with the
program. He agreed with the overriding social need and
seriousness of the consideration, but questioned the fiscal
reimbursement estimate for education from the University of
Alaska.
TAPE HFC 03 - 91, Side A
Ms. Barrans replied that 25% would be an educated guess of
the number of nursing professionals that the University
currently has capacity for. In the current graduating year,
there may be 150 nurses. That number is progressively
increasing to 220 within the next three years. The numbers
reflect the capacity of Alaska to produce nurses.
Representative Berkowitz pointed out that one of the
critical components of the University's budget this year had
to do the expansion of the nursing program. He emphasized
that it is critical that the State should help subsidize the
nursing crisis. The State needs more nurses.
Representative Hawker pointed out that the fiscal note
indicates an escalation of costs in the future. He
questioned how the escalation had been determined and how
much of that would come from the University of Alaska. Ms.
Barrans expected that number to remain at the 25% level.
The fiscal note projects the number of new nurses entering
the program to be 459 the first year and to grow at a
slightly larger participation rate during the next four
years. To the extent that the University can produce some
portion of that, in 2004, perhaps 200 nurses would graduate
from the program. The maximum capacity would be 220 per
year.
Representative Berkowitz voiced appreciation for the work
done on the proposed legislation.
Ms. Barrans advised that the funding for the fiscal note
would come from general funds. Those funds would be
earmarked on an annual basis and appropriated to that fund.
Finances for FY04 have been otherwise appropriated through
the Capital budget. She reiterated that for at least the
first year, the fiscal note calls for general funds to
capitalize the project.
Representative Hawker questioned if there would be a sunset
on the program. Ms. Barrans responded that the program
would continue to operate as long as the appropriations were
placed into the fund.
Representative Hawker recommended a sunset clause be added
in order that the Legislative Budget and Audit Committee
could provide an evaluation of program performance. He
inquired if the sponsor would be receptive to adding that
language.
Representative Kerttula interjected that the State could
always repeal the program. Placing a sunset could
discourage participants from becoming a nurse; when the
students see that possibly coming, they might opt out.
Representative Wilson emphasized that studies indicate that
in the next seven years, the State is going to need another
4,100 nurses. She pointed out that this is a crisis
situation and the legislation is conditional if the funding
is there.
CAMILLE SOLEIL, (TESTIFIED VIA TELECONFERENCE), ALASKA NURSE
ASSOCIATION, ANCHORAGE, offered to answer questions of the
Committee.
Representative Foster MOVED to report CS HB 211 (HESS) out
of Committee with individual recommendations and with the
accompanying fiscal notes.
Representative Hawker OBJECTED for a comment. He noted that
he would consider prior comments made by Representative
Kerttula. Representative Hawker WITHDREW his OBJECTION.
There being NO further OBJECTION, it was so ordered.
CS HB 211 (HESS) was reported out of Committee with a "do
pass" recommendation and with zero note #1 by the Department
of Community & Economic Development and a new fiscal note by
the Alaska Postsecondary Commission.
HOUSE BILL NO. 244
An Act relating to the Code of Criminal Procedure;
relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to
rights of prisoners after arrest; relating to
discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right
to representation in criminal proceedings; relating to
sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure,
and Rules 404, 412, 609, and 803, Alaska Rules of
Evidence; and providing for an effective date.
LINDA WILSON, (TESTIFIED VIA TELECONFERENCE), DEPUTY
DIRECTOR, ALASKA PUBLIC DEFENDER AGENCY, ANCHORAGE, provided
the position of the public defender and highlighted concerns
that remain in the bill.
· Section 1. This section rewrites and
includes numbers regarding the prisoner's
rights after they are arrested. The
controversy has to do with denying the
ability of the prisoner to access their
lawyer unless an attorney is specially
requested. Family or friends could not
retain a lawyer for the prisoner. With the
revision, it would allow for a relative or
family friend to retain an attorney. She
supported that change.
· Section 2. This section draws from the
immunity statute currently on the books.
Section 2 provides a good revision and
corrects the language, making it
constitutional. Historically, Alaska has
required transactional immunity.
Unfortunately, the Alaska Statutes changed a
number of years ago and only granted limited
use of immunity, which was appealed and in a
unanimous decision, it was agreed with the
Court of Appeals that the statute was
unconstitutional. The new language makes the
transactional immunity and the statute
reflect what the constitution requires.
· Section 3. Section 3 is a conforming section
that relates to the next section, which
mandates consecutive terms of imprisonment.
There is a preference for consecutive
sentences. There are certain circumstances
where someone could commit similar types of
crime and because the crimes are in different
judicial districts, there have been various
types of cases. In those concerns, there is
a preference for continuous sentences. The
Court decided from prior immunity in statute
that there should be a concurrent sentence
and not a mandated consecutive sentence. She
commented that the preference and mandate for
consecutive sentencing makes sense. There
must be discretion from the judge. There
could be an easy fix in that section by
adding additional language, clarifying that
if the prior event was committed after the
prior judgment, then the second offense would
be fines.
· Section 4. The Public Defender has concerns
with the language contained in Section 4.
Mandating consecutive sentence without giving
the judge any discretion will place the State
of Alaska into a bad situation.
· Section 5. She noted that Section 5
addresses concerns with challenging the prior
conviction. The burden shifted to the
defendant and to challenge that prior
conviction, there would have to be a right to
cancel or the right to a jury trial. She
suggested that limitation was too narrow.
· Sections 6 & 7. These sections are
conforming amendments that relate back to the
sentencing section.
· Section 8. This section speaks to the notice
of defenses. She stated that the State would
be "treading on dangerous ground" when
demanding preclusion of defense. There are
constitutional rights when faced with a
criminal charge, which is part of the
constitutional system for someone facing
criminal charges. Demanding preclusion of
the defense could violate the person's
rights. The defendant should not be
precluded from presenting their defense. She
voiced concern with the "expert witness"
language. Prohibiting the defense witness
from testifying is extreme. Allowing the
judge to make careful consideration to the
prejudices would be a much better path than
requiring preclusion.
· Section 13. This section would create a new
exception to the hearsay rule and would have
significant constitutional problems. These
cases can be full of emotion, passion and
bias. Removing the constitutional right of
the defendant to cross-examine a witness
would be wrong and not a good idea. Creating
an exception would be best.
Co-Chair Williams advised that the bill had been discussed
in the House Judiciary Committee.
Representative Kerttula requested that Ms. Wilson be
available to answer questions of the Committee at a later
meeting. She noted that she did have many questions
prepared on the issue. Co-Chair Williams stated that he
planned to move the bill as soon as possible.
Representative Kerttula reiterated that she had significant
questions regarding the financial impact of the legislation.
LAURIE HUGONIN, EXECUTIVE DIRECTOR, ALASKA NETWORK ON
DOMESTIC VIOLENCE AND SEXUAL ASSAULT, advised that the
Network supports Section 4 of the bill, the consecutive
sentencing and Section 13, expanding the period of time to
accept the domestic violence report. She added that the
Network did support language from the previous version
regarding prior convictions. Ms. Hugonin understood that
there was an amendment pending in Committee that would add
that language back into the bill.
Co-Chair Williams reiterated that HB 244 had been before the
House Judiciary Committee and had addressed many of the
expressed concerns.
HB 244 was HELD in Committee for further consideration.
ADJOURNMENT
The meeting was adjourned at 10:06 A.M.
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