Legislature(2009 - 2010)HOUSE FINANCE 519
04/12/2010 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB110 | |
| HB324 | |
| HB283 | |
| HB126 |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 110 | TELECONFERENCED | |
| + | SB 222 | TELECONFERENCED | |
| + | HB 324 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 283 | TELECONFERENCED | |
| += | HB 126 | TELECONFERENCED | |
HOUSE FINANCE COMMITTEE
April 12, 2010
1:45 p.m.
1:45:43 PM
CALL TO ORDER
Co-Chair Stoltze called the House Finance Committee meeting
to order at 1:45 p.m.
MEMBERS PRESENT
Representative Mike Hawker, Co-Chair
Representative Bill Stoltze, Co-Chair
Representative Bill Thomas Jr., Vice-Chair
Representative Allan Austerman
Representative Mike Doogan
Representative Anna Fairclough
Representative Neal Foster
Representative Les Gara
Representative Reggie Joule
Representative Mike Kelly
Representative Woodie Salmon
MEMBERS ABSENT
None
ALSO PRESENT
Senator Hollis French, Sponsor; Dan Sullivan, Attorney
General, Department of Law; Sue McLean, Public Defender,
Department of Law; Richard Svobodny, Deputy Attorney
General, Criminal Division, Department of Law; Orin Dym,
Forensic Laboratory Manager, Department of Public Safety;
Quinlan Steiner, Public Defender Agency, Department of
Administration; Quinlan Steiner, Public Defender Agency,
Department of Administration; Whitney Brewster, Director,
Division of Motor Vehicles, Department of Administration;
Jan Rutherdale, Attorney, Child Protection Section,
Department of Law; Alison Elgee, Assistant Commissioner,
Finance and Management Services, Department of Health and
Social Services.
PRESENT VIA TELECONFERENCE
Jeffrey Mittman, Executive Director, American Civil
Liberties Union (ACLU) of Alaska; Amanda Metivier, Facing
Foster Care in Alaska.
SUMMARY
HB 126 FOSTER CARE/CINA/EDUCATION OF HOMELESS
CSHB 126(FIN) was REPORTED out of Committee with
a "do pass" recommendation and with attached
previously published fiscal notes: FN4 (DHS), FN5
(DHS), FN6 (DHS).
HB 283 PURCHASE/CONSUMPTION OF ALCOHOL
CSHB 283(FIN) was REPORTED out of Committee with
a "do pass" recommendation and with attached new
fiscal note by the Department of Administration,
new zero note by the Department of Law, and
previously published fiscal note: FN3 (DHS.
HB 324 FAILURE TO APPEAR; RELEASE PROCEDURES
CSHB 324 was REPORTED out of Committee with a "do
pass" recommendation and with attached new zero
note by the Department of Administration,
attached new zero note by the House Finance
Committee for the Alaska Courts System, and
previously published fiscal notes: FN1 (ADM), FN3
(COR), FN4 (LAW), and FN5 (DPS).
CSSB 110 (FIN)
PRESERVATION OF EVIDENCE/DNA I.D. SYSTEM
HCSCSSB 110(FIN) was REPORTED out of Committee
with a "do pass" recommendation and with attached
new zero note by the House Finance Committee for
Department of Law and previously published fiscal
notes: FN4 (DPS) and FN5 (DPS).
CSSB 222 (JUD)
SEX OFFENSES; OFFENDER REGIS.; SENTENCING
(Minutes found in HFIN 041310 0818 AM, the
4/13/10 continuation of this meeting.)
CSSB 222(JUD) was REPORTED out of Committee with
a "do pass" recommendation and with two new
indeterminate fiscal notes by Department of
Administration and previously published fiscal
notes: FN2 (COR), FN4 (LAW), FN5 (CRT), and FN7
(DPS).
1:46:11 PM
CS FOR SENATE BILL NO. 110(FIN)
"An Act relating to the preservation of evidence and
to the DNA identification system."
1:46:55 PM
SENATOR HOLLIS FRENCH, SPONSOR, discussed SB 110. He
explained that the proposed legislation addresses post
conviction Deoxyribonucleic Acid (DNA) testing. He
commended his Chief of staff, Cindy Smith who initiated a
series of events allowing for provisions that move crime
bills through the process. The governor introduced a bill
this year with similar issues in respect to evidence
preservation. The DNA provisions from the governor's bill
are inserted into SB 110. He highlighted Section 3, Page 3
regarding evidence preservation. In the past rural law
enforcement agencies were tasked with storing large amounts
of evidence. With SB 110, an agency is not required to
preserve physical evidence for a crime that is of a size,
bulk, quantity, or physical character that renders
preservation impracticable. If the evidence is
impracticable, the bill asks the agency to grab those small
portions of biological evidence that may be useful in the
future to allow for a claim of innocence or conviction if
necessary. He noted the language insertion from the
Department of Law (DOL) "or until 50 years passes" allowing
a limit with respect to the amount of time evidence is
retained in storage. The Alaska Native Justice Center was
added to the task force. He noted that the task force will
provide good feedback in respect to evidence preservation.
1:51:02 PM
Senator French discussed provisions on post conviction DNA
testing. Individuals in prison can assert a claim of
innocence because of DNA evidence that may not have been
considered or available during conviction. The provision
ensures that no innocent individual is retained in an
Alaska prison. He explained that SB 110 is modeled on
Federal post conviction DNA statutes, which were passed in
2004 by a republican congress. He opined that the bill
struck the proper balance between civil liberties and
protection of the public order. Changes to HB 316 include
the deletion of language requiring applicants to cover the
cost of evidence retrieval. Timeliness provisions were
changed in that current prisoners have ten years from the
passage of the bill to initiate a claim. Provisions
regarding guilt where the applicant did not conceive guilt
under oath in an official proceeding can be waived by the
court in the interest of justice. He explained that
innocent people sometimes plead guilty to crimes. A
requirement asking for an attorney affidavit was deleted.
New language in Section 10 states that the proposed DNA
testing of the specific evidence may produce new material
that one would support the theory raised by the defense.
1:54:19 PM
DAN SULLIVAN, ATTORNEY GENERAL, DEPARTMENT OF LAW, sought
guidance from the House Finance Committee about the three
bills presented by the governor. He provided testimony
during the first week of session regarding the ten year
comprehensive plan to address the problem of domestic
violence and sexual assault in Alaska. He noted that the
way to combat the epidemic of sexual assault and domestic
violence is with a ten year strategic plan. He mentioned
that the help of the legislature has been instrumental in
the initiative process. He focused on the implementation of
the plan as a key aspect of the initiative. The strategic
objective is focused on changing the culture through a
comprehensive education and prevention campaign promoting a
culture of respect. He noted the importance of law
enforcement for interested communities. He discussed the
issue of victim services availability. A summit of lawyers
to increase the legal services via pro bono work is one
potential solution.
2:00:51 PM
Mr. Sullivan mentioned the legislation before the
committee. He recalled SB 222, SB 110 and HB 324, which
have been improved by this body. He requested that the
bills go out of committee as a package today. He pointed
out bail reform as an important issue. Alaska has not had
significant bail reform since the 1960s and HB 324 is an
effort to "catch up" to federal standards. He highlighted
four key points in HB 324. The first point requires a
person charged with a serious sex offense to prove that
release conditions before trial will protect the victim and
the public. The second point prohibits a person found
guilty of a serious sex offense from being released before
sentencing or during an appeal of a conviction. The third
point protects the victims of domestic violence by setting
standards that the court must find before allowing a
perpetrator of domestic violence to return to the victim's
residence. The fourth point allows more time before the
defendant's first appearance in court for the police to
investigate and the prosecutor to make an informed charging
decision to present better bail arguments and to contact
the victim so that they may be present at the bail hearing.
He commented on the positive demonstration made by the
administration, the House Finance Committee, and the Senate
Judiciary Committee. He complimented the various staff
members whose involvement created a strong package of three
bills encompassing important components of the overall
strategic plan to end sexual assault and domestic violence.
2:05:47 PM
SUE MCLEAN, PUBLIC DEFENDER, DEPARTMENT OF LAW, stated that
the testimony from Senator French was consistent with the
department's viewpoint. She expressed a strong interest in
allowing a challenge of convictions with the advent of DNA
testing. She stated that SB 110 strikes an appropriate
balance.
RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, noted that the department
worked well with the administration and Senator French's
district. The requirements for obtaining post conviction
relief under the state statute closely resemble the federal
statute. He pointed out one instance on Page 6, Line 28
that does not follow the federal statute in which a person
must be incarcerated prior to post conviction relief. With
SB 110, incarceration is not a requirement. The change
allows for the increased availability of post conviction
relief.
2:09:17 PM
Co-Chair Stoltze opened public testimony.
JEFFREY MITTMAN, EXECUTIVE DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION OF ALASKA, testified in favor of the bill.
Co-Chair Stoltze pointed out two fiscal notes from the
Department of Public Safety (DPS) and one from DOL.
Mr. Svobodny explained the $4000 fiscal note from DOL. The
court of appeals created standards on post conviction
relief, but DOL believes that the legislature should
determine standards for Alaska. The $4000 cost allows the
task force to impose standards for the retention and return
of evidence.
2:13:08 PM
Co-Chair Stoltze detailed the zero fiscal note from DPS and
one zero fiscal note from the Senate Finance Committee.
ORIN DYM, FORENSIC LABORATORY MANAGER, DEPARTMENT OF PUBLIC
SAFETY, stated that the fiscal note takes the form of a new
crime lab. He explained that the department has gained
efficiency in evidence handling and evidence storage
providing reserves for the next two years.
Co-Chair Hawker asked about the fiscal note from DOL. He
asked if the funding would be absorbed into the existing
budget authority. Mr. Svobodny responded that the
department could absorb the cost. Co-Chair Hawker commended
the frugality of the zero fiscal note. Mr. Svobodny agreed
to present the note as a zero fiscal note.
2:16:32 PM
Representative Gara moved AMENDMENT 1. Co-Chair Stoltze
OBJECTED.
Amendment One
Delete "(A) is not inconsistent with a defense
presented at trial; and (B)"
Representative Gara spoke to the amendment. He explained
one outstanding issue on Page 8, Line 19 addressed by the
amendment. This section of the bill states that if a person
is innocent and able to prove it with DNA evidence, then
the person will no longer be in jail. He wished to prevent
any additional road blocks for an innocent person. The DNA
evidence is present for the person who is wrongly
convicted. He noted the list of ten points that must be
illustrated to prove innocence. If Line 19 is not amended,
then an innocent person charged on misidentification, who
chooses a plea of self defense as recommended by an
attorney, will not be eligible for the benefits of DNA
testing. The amendment states that an innocent person
cannot be punished for a decision made by the trial
attorney. He provided a hypothetical case in which this
amendment would prove necessary.
2:21:47 PM
Ms. McLean noted that a balance must be obtained between
assuring that an innocent person could utilize DNA evidence
testing and those who might use the new law to perpetrate a
fraud on the court. Normally in self defense cases the
defendant would testify that he acted in self defense. She
added that if a defendant had a lawyer that talked him into
a fraudulent plea, then he has an opportunity to file for a
petition for a post conviction relief based on the
ineffective assistance of counsel leading to his
conviction.
Representative Gara clarified that all circumstances must
be covered to truly achieve a balance. He argued that
balance is impossible if a person cannot use DNA evidence.
2:23:55 PM
General Sullivan responded that the bill does comprise a
balance. He noted that the language states that the theory
of defense is inconsistent, which provides some "wiggle
room." The language achieves the balance in the federal
statute.
Representative Doogan understood that if a person chose a
plea and lost then they are rendered unable to file a
petition for post conviction relief. He did not understand
how amendment one would negatively affect any person or
entity involved. Mr. Svobodny responded that most trial
lawyers seek the truth. Representative Doogan commented
that the person on trial does not pay the price in this
circumstance. His attorney makes the decision.
2:29:16 PM
Mr. Svobodny stated that he was a prior public defender and
he never advised a person to run a defense that was untrue.
He recalled instances where a defendant requested a new
lawyer because the current lawyer would not defend based on
the story provided by the defendant. He believed that the
courts should strive to tell the truth as opposed to
misleading people.
Representative Doogan stated that the goal of the amendment
is to prove innocence and tell the truth. He noted that
without this, prosecutors will return to court and allow
for further DNA testing. He cited that the DNA test
provides infallible proof.
2:31:51 PM
Representative Austerman asked if chapter 73 of the bill
was based federal law. Senator French answered yes; chapter
73 is largely patterned after post conviction DNA statutes.
2:33:29 PM
Representative Gara stressed that a lawyer can help an
innocent person use DNA evidence to prove that they are
innocent. He clarified that his hypothetical situation
addressed an innocent person. He requested testimony from
the department.
2:35:38 PM
QUINLAN STEINER, PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION, commented that the amendment addresses both
section seven and eight. Section eight details the
requirement of the perpetrator's identity disputed at
trial. Subsection eight requires that the court find that
the applicant was convicted after a trial, which is
inconsistent with another section of the bill which permits
a post conviction DNA relief after a guilty plea. The
defense attorney could make a reasonable decision to run
self defense, which creates an ethical dilemma.
2:38:45 PM
Representative Gara asked if there were circumstances where
an attorney acting in good faith would run one defense
during trial and later be precluded from using DNA evidence
to prove that the client was innocent. Mr. Steiner replied
yes, the most obvious example is a self defense claim which
identifies the defendant as the person who created the act
with eyewitnesses stating that the person was acting in
self defense. A defense attorney may elect to run self
defense rather than an identification defense despite the
fact that the client denies presence at the scene of the
crime. The decision rests exclusively with the attorney.
Co-Chair Hawker commented on the debate. He stated that his
aide is supportive of the amendment. He asked Senator
French about the amendment and the balance of concerns.
2:41:07 PM
Senator French responded that research shows the federal
statute is the gold standard. He stated that he approved of
the bill without change.
Co-Chair Hawker asked the Attorney General his opinion
about amendment one.
General Sullivan stated that each provision requires an
element of balance. He sought to strike the proper balance.
The procedures are intended to prevent the incarceration of
innocent people. He respected the concerns raised in the
amendment, but the procedures are a balance in judgment.
2:44:10 PM
Representative Fairclough spoke to the example provided by
Representative Gara. She wondered if the defense attorney
would have considered DNA evidence prior to the trial. She
was unsure how the DNA evidence was obtained once the trial
ended.
Mr. Steiner responded that similar decisions were made
prior to sophisticated DNA testing allowing for strategic
reasons to forgo testing. An attorney must make judgment
calls regarding the evidence's likelihood of success, which
includes questioning the defendant's testimony.
Representative Gara stated that the sophistication of DNA
evidence is recent and unprecedented.
2:47:12 PM
Co-Chair Hawker informed that court officers intend to make
good decisions and are seeking justice. People in the court
system are not always part of the judiciary system.
Occasionally immigrants might not feel comfortable in the
judicial system. This person may seek the best option out.
He explained that the defense mechanism could be the result
of fear or lack of understanding of the judicial system. He
wondered if the requirement might be inconsistent.
2:51:03 PM
Mr. Steiner commented that the amendment may not completely
address the issue. Subsection eight requires that identity
be disputed and works in concert with Section seven.
Representative Joule commented that all native Alaskans
look alike to some people. He wondered how the issue fits
in to the amendment.
Senator French stated that the DNA testing might truly
exonerate the defendant only with an eyewitness that proves
that the blood on the victim fell on the defendant. The
police would test any blood found on the victim. In order
for DNA evidence to exonerate the defendant the blood on
the victim would require testing.
2:54:19 PM
General Sullivan commented that the hypothetical situation
assumes that the person is innocent and the blood is not
presented at trial. He pointed out that a defense attorney
might wisely avoid DNA testing, but then seek it out in the
event of a conviction.
2:56:23 PM
Representative Kelly asked how many states have adopted the
federal approach. Senator French did not know the answer.
Representative Gara explained that his hypothetical
situation included a pre DNA evidence conviction. He
accepted that many people do not fit the hypothetical,
although if the amendment allows one innocent person to
leave jail, then he will be content.
Representative Doogan asked to know the potential harm of
the amendment if passed.
2:59:30 PM
Ms. McLean responded that the amendment opens the
opportunity for those who are not in fact innocent and are
continually bringing various motions on other theories.
The harm is that the trial and appeals have occurred.
Representative Doogan asked if the amendment would harm the
lawyer. He noted that the provision removed includes the
words "I did not do it." Ms. McLean answered that those who
present a defensive alibi yet were guilty can now use a
plea of self defense. She stated that the harm is the
manipulation of the system making it more difficult for
those people seeking access to the system.
Representative Doogan reminded that a DNA test does not
allow for a conviction change.
3:02:35 PM
General Sullivan clarified that he is not admitting to
administrative convenience. He thought the harm to the
system was in allowing new theories that may be
inconsistent with previous theories and thereby encouraging
a form of "crapshoot justice."
Representative Doogan expressed dissatisfaction with
further argument versus an answer to his question regarding
the potential harm of the amendment. He repeated the
question "what is the harm in the amendment?"
Representative Fairclough pointed out the cost to the
state's investment in correctional facilities when DNA
evidence is utilized. The harm to the system is that state
dollars would be spent to test theory after theory. She
recalled an appeal process addressed in the CS.
3:07:02 PM
Senator French referred to Page 9, which addresses the
summary dismissal if a person does not comply with the
requirements of the discussed provisions.
Ms. McLean added that citizens always have the right to
appeal a court order.
Representative Gara concluded that if the amendment passes,
a person must present the affidavit and illustrate that the
DNA evidence will prove innocence. If there was prior DNA
evidence, the defendant must illustrate the reason that the
new DNA evidence is superior. The DNA evidence must be
proposed as sound and valid. The balance will be the
inconvenience of rotten people who abuse the system, but
for an innocent person who might not have been
sophisticated enough to insist on the best defense
possible, the amendment could make the difference. He
continued that he felt that the bill was good with strong
standards and many hoops to jump through prior to utilizing
DNA evidence.
A roll call vote was taken on the motion.
IN FAVOR: 6
OPPOSED: 5
Amendment one was ADOPTED.
3:12:09 PM
Co-Chair Hawker MOVED to report HCSCSSB 110(FIN) as amended
out of Committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
HCSCSSB 110(FIN) was REPORTED out of Committee with a "do
pass" recommendation and with attached new zero notes by
the House Finance Committee for Department of Law and
previously published fiscal notes: FN4 (DPS) and FN5 (DPS).
HOUSE BILL NO. 324
"An Act relating to the crime of failure to appear;
relating to arrest for violating certain conditions of
release; relating to release before trial, before
sentence, and pending appeal; relating to material
witnesses; relating to temporary release; relating to
release on a petition to revoke probation; relating to
the first appearance before a judicial officer after
arrest; relating to service of process for domestic
violence protective orders; making conforming
amendments; amending Rules 5 and 41, Alaska Rules of
Criminal Procedure, and Rules 206 and 603, Alaska
Rules of Appellate Procedure; and providing for an
effective date."
3:13:38 PM
Co-Chair Hawker moved to adopt work draft 26-GH2910\S
Luckhaupt 4/11/10.
Co-Chair Stoltze OBJECTED.
Mr. Svobodny stated that Section 1 of the bill moves the
offense of failure to appear in court from Title 12 to
Title 11. The current bail bill was passed in 1966 and has
not been updated or moved when the criminal code was
revised in 1978 by the legislature. The section moves the
location of the crime from the criminal section of the law
to the criminal law. The state must prove that a person
knew that they must appear in court. This bill clarifies
that we are not able to prove the negative. The section
does not refer to strict liability which means that despite
a person's excuse, if a law is broken, they are prosecuted.
The law here provides an affirmative defense.
Mr. Svobodny continued with Section 2. He pointed out that
the section allows for police arrest without a warrant for
violating a condition of release. Section 3 establishes the
procedures for obtaining bail in any particular case. The
section aligns with present bail conditions and adds
conditions deemed appropriate by the court system.
3:19:41 PM
Mr. Svobodny stated that the section requires a person
released from court to be released on bail or their own
recognizance. The signed conditions of release can cost the
court system time in the state's view. For important events
the state requires a signature for the conditions of
release. A provision where a judge can change bail at any
time he or she deems appropriate is dropped.
3:22:56 PM
Mr. Svobodny noted that the process describes the various
circumstances regarding appropriate conditions of release.
He pointed out Section 4 and the burden of persuasion or
proceedings which establishes that the state has the burden
of proving the person is a threat to society. A defendant
must go forward to show that they are not a danger to the
community. When the charge before the court is an
unclassified felony, the defendant must show the court why
they are likely to appear or why they do not present a
danger to the community. The next situation includes a
previous felony offense which is included in the CS. A
person seeking bail while engrossed in another case on bail
must come forward to prove that they can follow the
conditions release.
3:27:44 PM
Mr. Svobodny noted that Section 4 addresses situations of
extradition. He commented on the debate about bail in a
case of extradition. Alaskan courts have held that
following a governor's warrant there is not bail following
a case of extradition. A person who fled another
jurisdiction may flee the current one or may prove a danger
to the community. Evidence can be presented on the normal
conditions of release if a court can be convinced.
Mr. Svobodny discussed special conditions that apply in
special cases. He noted specific provisions for specific
crimes. For alcohol related crimes, the court can impose
certain conditions. He pointed out special provisions for
crimes that involve drug offenses.
3:32:15 PM
Mr. Svobodny continued with Section 5 and the protection of
the public. A third party custodian might be issued.
Standards for the appointment of third party custodians do
not yet exist. He provided an example. The bill does
contain exclusions for people who are seeking third party
custodians.
Representative Gara suggested that the sectional analysis
be reserved for questions.
3:35:00 PM
Mr. Svobodny stated that the Court of Appeals overturned a
decision made by the legislature about a prohibition for
people charged with committing a crime of domestic violence
that resolves the dispute. The law requires a twenty day
cooling off period. The defendant must show that they will
not present a danger to the person. Currently the law
states that a person must be brought before a court within
twenty four hours to set bail, but this bill changes the
time to forty eight hours.
3:37:40 PM AT EASE
3:39:33 PM RECONVENED
QUINLAN STEINER, PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION, commented page seven, line eight, which
could impact the agency in terms of the conduction of bail
hearings. If judges interpret the section in a highly
technical manner, the change would require the defense
council to use evidence related to the defense to rebut
that presumption. The section could be interpreted
differently, but if elected, defense attorneys are required
to make a decision. He commented on Page 12, Line 13 in
which defense is required to use evidence about the event
itself to meet the burden that might commit them to a
defense of the disclosure of defense theories and evidence.
Vice-Chair Thomas asked if Mr. Steiner had spoken with the
sponsors of the bill about his concerns. Mr. Steiner
responded yes.
Mr. Svobodny responded that a person must illustrate
whether they are a danger to various entities. He continued
with Page 12, Line 13 the addresses domestic violence
situations and cooling off period. The section allows for a
finding that the court must make in the circumstances with
a domestic case.
3:46:33 PM
JEFFREY MITTMAN, EXECUTIVE DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION (ACLU) OF ALASKA (via teleconference),
expressed ACLU's concerns with respect to the
constitutionality of the bill. He noted that prior
correspondence with the Judiciary Committee has been placed
on the BASIS system in the documents section. He pointed
out Page 3, Lines 23 which encompasses the change to a
forty eight hour period for an initial hearing. He stated
that ACLU believes that the standard of 24 hours in Alaska
is effective and it may be unreasonable to statutorily or
legislatively change from a 24 hour to a 48 hour period.
Page 5, Line 23-24 along with Page 6, Lines 12-15 allow for
conditions that enable the court to mandate that a person
maintain employment or that they follow a medical
provider's treatment. These requirements apply to a person
that has been charged but not yet convicted making their
rights those of an innocent person. He believed the
requirement unconstitutional as a judicial mandate on an
individual who is not yet under court supervision. He
continued with Page 7, lines 8 and 9, which is the area of
greatest concern for the ACLU. The Alaska constitution sets
forth that a person has a right to bail. To reverse the
statute by legislative action is constitutionally
inappropriate. He commented that the exception for the
presumption of bail was with capital offense where the
evidence is great. That high standard governs and to create
a rebuttable presumption would prove improper. He continued
with Page 8, Lines 8-28 which include the mandate that an
individual would be required to submit to a search without
a warrant. He continued with Page 10, Line 15-19 and the
imposition of third party custodian status. The presumption
for bail is that a person is entitled to bail and the court
imposition of conditions should be less restrictive. He
recommended additional language stating that a court
finding of an imposition of a third party custodian is the
least restrictive means to assure that a person appears for
the safety of the victim.
3:52:50 PM
Representative Doogan asked about the unconstitutional
nature of the bill.
Mr. Svobodny addressed the concerns presented by Mr.
Mittman. He addressed the initial concern about the change
from 24 to 48 hours. He noted that Alaska is one of three
states with a 24 hour requirement. He pointed out that the
Supreme Court agreed to 72 hour limits.
Mr. Svobodny addressed Mr. Mittman's complaints regarding
conditions of bail including use of medication are
conditions commonly set by the court. Often, people are
incarcerated that have mental illness or diabetes.
Conditions of release are typically set by the court at a
hearing where there has been a finding of probable cause
that a person has committed the crime. The court then has a
responsibility about the least restrictive alternative for
the person. The law presumes that the person will be
released on their own recognizance unless they present a
danger to flee or a danger to the victim or the community.
The judge must then establish conditions of release to
protect the interests of the people.
Mr. Svobodny continued with Page 7, Lines 8 and 9. A
presumption includes the person who proves the proposition
that a person is a flight risk or a danger to the
community. The presumption is found in the federal law and
many other states.
3:59:40 PM
General Sullivan stated that HB 324 is the most important
legislation this session since bail legislation has not
been reformed since the 1950s. He acknowledged the value of
victims' safety. He commented that if a community has the
guts to put a person in jail and he is eligible for bail
that places innocent people at risk. He outlined the broad
approach to the issue of bail. He believed that the
provisions were important as they promote safety. He
believed that the presumption issue suggested that the
state must keep up with the federal rules. He emphasized
that the approaches in the bill were important to keeping
Alaskan communities and victims safer.
4:05:13 PM
Representative Doogan requested clarification on the issue.
Mr. Svobodny responded that every person has a right to
bail. If the state notes that a person is dangerous then
the right to bail is limited. The presumption shifts when a
defendant can prove that they are not flight risks. He
referred to Page 8, Line 28 and the reference to searches.
He clarified that the police cannot search a person
indiscriminately. The law states "to submit to a search of
the defendant's personal property, residence, vehicle, or
any vehicle over which the defendant has control for the
possession of alcoholic beverage or illegal drugs and drug
paraphernalia by a peace officer has a reasonable suspicion
that the defendant is violating the terms of the
defendant's bail release." If there is a nexus between the
condition and the crime, conditions of bail release can be
imposed including searches based upon reasonable suspicion.
Mr. Svobodny addressed the question regarding the third
party custodian. He noted that a third party custodian is a
tool the judge uses to retain the defendant. Third party
custodians exist following a court finding of probable
cause that the person has committed the crime.
4:09:47 PM
Co-Chair Stoltze removed his objection. There being NO
OBJECTION, it was so ordered and Version S was ADOPTED.
Representative Kelly asked about Page 7 and the rebuttable
presumption. He asked about other state's policies
regarding rebuttable presumption. Ms. McLean answered that
eleven states have expressly rebuttable presumption.
4:12:29 PM AT EASE
4:13:32 PM RECONVENE
Co-Chair Stoltze noted all zero fiscal notes except one for
$50 thousand for the draft CS recently adopted.
Representative Gara explained that with rebuttable
presumption additional time is not necessary. He MOVED to
Zero out the fiscal note dated 4/12/10. The $50 thousand
was reduced to zero.
4:16:09 PM
Vice-Chair Thomas MOVED to report CSHB 324 (FIN) out of
Committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CSHB 324 was REPORTED out of Committee with a "do pass"
recommendation and with attached new zero note by the
Department of Administration, attached new zero note by the
House Finance Committee for the Alaska Courts System, and
previously published fiscal notes: FN1 (ADM), FN3 (COR),
FN4 (LAW), and FN5 (DPS).
4:18:07 PM
HOUSE BILL NO. 283
"An Act relating to the purchasing of and restrictions
concerning alcoholic beverages."
4:20:00 PM
WHITNEY BREWSTER, DIRECTOR, DIVISION OF MOTOR VEHICLES,
DEPARTMENT OF ADMINISTRATION, spoke to the fiscal note.
Currently the Department of Motor Vehicles places a
restriction on a license when a court order is received for
driving under the influence of alcohol or refusal offenses.
She understood that the allowable offenses would be
broadened to include any offense with two misdemeanor
offenses or when alcohol has been determined to be a
substantial influence. She explained that the department
took approximately 8000 people convicted of a misdemeanor
who have had two prior convictions and added them to the
6000 felony convictions. Not all judges will use an alcohol
restriction as a term of sentencing, nor will all offenses
be alcohol related. The cost of license production is
$2.50. The fiscal note for $17.500 is strictly for
supplies. She pointed out the change in revenue will equal
$350 thousand.
4:22:11 PM
Co-Chair Hawker MOVED to report CSHB 283 out of Committee
with individual recommendations and the accompanying fiscal
note. There being NO OBJECTION, it was so ordered.
CSHB 283(FIN) was REPORTED out of Committee with a "do
pass" recommendation and with attached new fiscal note by
the Department of Administration, new zero note by the
Department of Law, and previously published fiscal note:
FN3 (DHS).
HOUSE BILL NO. 126
"An Act relating to continuing the secondary public
education of a homeless student; relating to the
purpose of certain laws as they relate to children;
relating to tuition waivers, loans, and medical
assistance for a child placed in out-of-home care by
the state; relating to foster care; relating to
children in need of aid; relating to foster care
transition to independent living; and relating to
juvenile programs and institutions."
4:24:57 PM
Co-Chair Hawker moved to adopt CSHB 126 26-LS0309\Q,
Mishel, 4/9/10. Co-Chair Stoltze OBJECTED.
Representative Gara informed that HB 126 increases the
chance for the approximately 2000 foster youth in the state
to succeed in greater numbers. Similar efforts have
occurred in many states. President Bush signed a law called
the Fostering Connections Act in 2008. Fostering
connections recognized that the former foster care model
was ineffective. Some foster youth are not prepared to
leave the home environment as early as those from stable
families. The effort in HB 126 is to extend foster care to
age 21 where it is in the child's best interest.
Educational achievement in states providing foster care
until a child is 21 are twice as high as those states that
provide foster care until 18 years of age. He shared a
story about foster youth leaving home at age 19 with
unsavory results. The cost for extending foster care to age
21 will equal $470 thousand per year. Matching federal
funds are available under the Fostering Connections Act.
4:28:26 PM AT EASE
4:53:41 PM RECONVENE
Representative Gara discussed other provision in the bill,
which came out of the HESS committee. The co-chair of the
HESS committee worked on language under Section 2. If a
foster child has opted out of state custody after age 16,
but then desires reentry the standards in Section 2 are
used. He pointed out that a young person must prove that
they are in need of foster care to avoid personal harm or
homelessness or to enhance the ability to continue in
education or successful transition. The department may
request conditions prior to reentry. Reasonable terms might
include an education plan, a job training plan or other
reasonable terms deemed so by the court. He stated that he
endeavored to expedite the process by eliminating the
requirement of annual court status reports. The Department
of Law opined that it was best to retain the annual court
status reports. He mentioned a separate bill section that
is since unnecessary as is passed as a separate bill on the
House floor recently.
4:57:56 PM
AMANDA METIVIER, FACING FOSTER CARE IN ALASKA (via
teleconference), stated that for youth who exceed the age
requirement for care in Alaska, forty percent end up
homeless, thirty percent end up incarcerated, and a high
rate of early pregnancy exists. He explained that foster
care extensions beyond age 18 create better overall
outcomes and those children are more likely to graduate
high school and receive postsecondary education and
training. The program helps youth reenter foster care
successfully.
Co-Chair Stoltze acknowledged the substantial support for
the program.
5:01:43 PM
Representative Fairclough asked about the differences
between the CS and the original bill. Representative Gara
discussed an additional provision in which the Covenant
House faced a problem with federal funding because they
housed greater than 20 people and under federal law a state
law must certify that more than 20 people can be housed. A
separate piece of legislation was filed by the Senate
Health and Social Services (HSS) committee, which led to
deletion of the issue from the CS.
Co-Chair Stoltze asked which section of the bill (Z
version) passed the HSS committee. Representative Gara
responded Page 3, Lines 14-18.
Representative Fairclough asked about Page 2 of the HSS
version beginning on Lines 3-23, which appears as new
language. Representative Gara responded that the language
is included in the CS currently before the committee. In
the Z version of the bill, the court's one year renewal
period was inadvertently removed but the Q version inserts
them. Beginning on Line 9, Page 2 the provision to reenter
foster care is found. Specific language listing standards
was requested. He stated that the language on Page 3, Line
2 of the current bill clearly states "you're in need of out
of home care to avoid personal harm or homelessness or to
enhance the person's ability to continue the person's
education or training or otherwise improve the person's
successful transition to independent living and if
requested by the department agrees to reasonable terms for
resuming state custody that may include matters relating to
the person's education, attainment of a job, or life skills
or other terms found by the court to be reasonable and in
the person's best interest." He noted that DOL requested
the use of the word resume to make clear that the section
referred to reentry into foster care.
5:06:39 PM
Representative Fairclough pointed out that Page three of
the Z version shows bolded type different from the version
presented to the committee. She noticed words that were
removed, but she did not know the consequence of the
removal as compared to the recommendations from the HSS
committee.
Representative Gara informed that on Page 2, Line 9 of the
Z version, the language, except for the words "resume care"
is the same as the new version beginning on Page 2, Line
14-24. One change is some language from Page 2, Lines 4-6
which addressed the old procedure of the yearly hearing. He
stated that the annual review for younger children was
removed.
Representative Fairclough requested an explanation of the
difference on Page 2, Line 11. Representative Gara replied
that the language between the two sections includes the
definition of youth who left care and wish to reenter. He
noted that DOL recommended new language to define the group
as people who resume care. Before the youth were described
as "persons released for a reason other than court ordered
reunification with person's parent." The new language asks
if the children were released to their own custody as
stated on Page 2, Line 31.
Representative Fairclough noted that the HSS committee
recommended that the new language provides an exception if
the foster child were removed due to a court order.
5:11:25 PM
Representative Gara explained that there was no substantive
reason for the change. The DOL intended to define the youth
that leave care and then seek reentry. The DOL advised that
a youth released to a youth's own custody was more
informative language.
5:12:33 PM
Representative Kelly recalled the late Representative
Richard Foster's great support of state involvement in
foster care.
Vice-Chair Thomas requested that the Attorney General's
office speak to the questions.
JAN RUTHERDALE, ATTORNEY, CHILD PROTECTION SECTION,
DEPARTMENT OF LAW, stated that she was not involved in the
earlier versions of the bill, but was familiar with the
current version. Substantively, the difference between the
two bills is that the new section is lumped into the old
sections. The action of removing the section and creating a
new subsection preserves the old section. She stated that
the requirement is no longer an annual return to court. She
noted that the change provides a protection for the child.
Vice-Chair Thomas asked if the different versions of the
bill are the same. Ms. Rutherdale informed that the
difference addresses the annual court review. In version Z,
no court review exists until the end of the youth's foster
care. This allows for a yearly review. If the child changes
their mind about the reentry, they can always petition.
Co-Chair Stoltze asked if she followed the debate in the
HSS committee. Ms. Rutherdale responded in the affirmative.
5:17:55 PM
Representative Fairclough asked if there were any
exceptions for release to their own custody in the way of a
court order. Ms. Rutherdale answered that the Version Q
explains that when a child is released, it is typically to
their parents, commonly known as reunification.
Representative Fairclough stated that she is supportive of
the concept, but was respectful of changes made by the HSS
committee. She asked about potential conceptual amendments
made to the bill during the HSS committee hearings. She
expressed trepidation about the new CS that does not have a
HSS committee recommendation.
5:20:05 PM
Representative Gara responded that the language in HSS
committee was an express written amendment. The substance
of the standard of required proof for reentry is the same
now as it was in the HSS committee. He noted that the
original version stated that reentry was possible if
economic hardship was faced by the youth. He stated that
the words "economic hardship" were removed from the
version. The issue in the HSS committee was that standards
for reentry were set.
5:21:45 PM
ALISON ELGEE, ASSISTANT COMMISSIONER, FINANCE AND
MANAGEMENT SERVICES, DEPARTMENT OF HEALTH AND SOCIAL
SERVICES, spoke to the three fiscal notes. She stated that
the fiscal notes for the first year comprise a six month
time period. The greatest of the fiscal notes is the foster
care base rate note which represents the additional cost
for extending foster care to these elder youth. Another
fiscal note covers the foster care special needs provisions
for extraordinary costs that foster care families incur.
The third fiscal note addresses the changes necessary to
the case management system as a result of the legislation.
Representative Gara pointed out that he was economically
prudent by delaying the effective date on fiscal note
number six to January 1st, which was the time period
necessary for the department to implement the program.
Co-Chair Hawker asked if the maximum advantage of federal
funds available were utilized. Ms. Elgee responded yes. She
noted the difficulty in estimating the amount of federal
reimbursement for foster children.
Co-Chair Hawker asked Representative Gara if federal
reimbursement was availed.
Representative Gara answered yes, the bill is called
Fostering Connections and was signed in by George Bush in
2008.
Co-Chair Hawker MOVED to report HB 126 out of Committee
with individual recommendations and the accompanying fiscal
note. There being NO OBJECTION, it was so ordered.
CSHB 126(FIN) was REPORTED out of Committee with a "do
pass" recommendation and with attached previously published
fiscal notes: FN4 (DHS), FN5 (DHS), FN6 (DHS).
5:26:08 PM
CS FOR SENATE BILL NO. 222(JUD)
"An Act relating to the crimes of harassment,
distribution and possession of child pornography,
failure to register as a sex offender or child
kidnapper, and distribution of indecent material to a
minor; relating to suspending imposition of sentence
and conditions of probation or parole for human
trafficking or for certain sex offenses; relating to
aggravating factors in sentencing; relating to
reporting of crimes; relating to administrative
subpoenas for certain records involving exploitation
of children; amending Rule 16, Alaska Rules of
Criminal Procedure; and providing for an effective
date."
The meeting was RECESSED at 10:07 PM.
RECESSED
(Find continued minutes in HFIN 041310 0818 AM)