Legislature(1993 - 1994)
03/31/1994 08:10 AM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 31, 1994
8:10 a.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Jeannette James, Vice-Chairman
Representative Pete Kott
Representative Joe Green
Representative Jim Nordlund
MEMBERS ABSENT
Representative Cliff Davidson
Representative Gail Phillips
COMMITTEE CALENDAR
HB 420 "An Act relating to limited liability companies;
amending Alaska Rules of Civil Procedure 20 and
24; and providing for an effective date."
MOVED OUT
HB 524 "An Act relating to the arrest for violating
release conditions."
MOVED OUT
HB 525 "An Act relating to character evidence in criminal
trials."
MOVED OUT
HB 527 "An Act extending probation for certain crimes."
MOVED OUT
HB 528 "An Act relating to Preemptory challenge of
jurors."
MOVED OUT
HB 487 "An Act relating to the sale, display, or
distribution of material harmful to minors at
places where minors are present or allowed to be
present and where minors are able to view such
material; and prohibiting the sale or display of
certain audio recordings, phonograph records,
magnetic tapes, compact discs, or videotapes,
without warning labels and opaque wrappings."
MOVED OUT AS CSSSHB 487(JUD)
WITNESS REGISTER
Representative Gene Therriault
State Capitol, Room 421
Juneau, AK 99801-1182
465-4797
POSITION STATEMENT: Sponsor of SSHB 420
Bob Manley
324 East Cook
Anchorage, AK 99501
263-8251
POSITION STATEMENT: Supported the proposed CSSSHB 420(JUD)
Peter Brantigan, Member
Alaska Bar Association
717 "K" Street
Anchorage, AK 99501
276-6592
POSITION STATEMENT: Supported the proposed CSSSHB 420(JUD)
Brian Durrell
6300 Andover
Anchorage, AK 99516
345-4906
POSITION STATEMENT: Supported the proposed CSSSHB 420(JUD)
John Abbott
P.O. Box 112306
Anchorage, AK 99511
346-1039
POSITION STATEMENT: Supported the proposed CSSSHB 420(JUD)
Craig Ingham
Alaska Bankers Association
P.O. Box 73784
Fairbanks, AK 99707
452-1751
POSITION STATEMENT: Supported the proposed CSSSHB 420(JUD)
Jo Kuchle
P.O. Box 73784
Fairbanks, AK 99707
452-1751
POSITION STATEMENT: Supported the proposed CSSSHB 420(JUD)
Dean J. Guaneli, Chief
Assistant Attorney General
Legal Services Section
Department of Law
PO Box 110300
Juneau, AK 99811-0300
465-3428
POSITION STATEMENT: Provided Executive Summaries on
House Bills 524, 525, 527, and 528
Barbara Brink
Public Defender's Office
900 West Fifth, Suite 200
Anchorage, AK 99501-2090
POSITION STATEMENT: Testified against HB 525
Cindy Smith, Executive Director
Network on Domestic Violence
and Sexual Assault
130 Seward Street, #501
Juneau, AK 99801
586-3650
POSITION STATEMENT: Testified in support of HB 525
Jayne Andreen, Executive Director
Council on Domestic Violence
and Sexual Assault
P.O. Box 11120
Juneau, AK 99811
465-4356
POSITION STATEMENT: Testified in support of House Bills
524, 525, 527, and 528
Brant McGee, Director
Office of Public Advocacy
900 West Fifth, Suite 525
Anchorage, AK 99501-2090
274-1684
POSITION STATEMENT: Testified in opposition to HB 528
Daniella Loper, Committee Aide
House Judiciary Committee
State Capitol, Room 120
Juneau, AK 99801-1182
POSITION STATEMENT: Testified on HB 528
Jack Phelps, Legislative Aide
to Representative Pete Kott
State Capitol, Room 409
Juneau, AK 99801-1182
465-3777
POSITION STATEMENT: Gave sponsor testimony relating to
CSSSHB 487(JUD).
PREVIOUS ACTION
BILL: HB 420
SHORT TITLE: LIMITED LIABILITY COMPANIES
S P O N S O R ( S ) : R E P R E S E N T A T I V E ( S )
THERRIAULT,Mulder,James,Nordlund;
SENATOR(S): Kerttula,Kelly
JRN-DATE JRN-PG ACTION
01/31/94 2206 (H) READ THE FIRST TIME/REFERRAL(S)
01/31/94 2206 (H) L&C, JUDICIARY, STATE AFFAIRS
02/24/94 2522 (H) SPONSOR SUBSTITUTE INTRODUCED-
REFERRALS
02/24/94 2522 (H) L&C, JUDICIARY, STATE AFFAIRS
03/08/94 (H) L&C AT 03:00 PM CAPITOL 17
03/08/94 (H) MINUTE(L&C)
03/09/94 2676 (H) L&C RPT 1DP 3NR
03/09/94 2676 (H) DP: MULDER
03/09/94 2676 (H) NR: WILLIAMS, SITTON, HUDSON
03/09/94 2676 (H) -ZERO FISCAL NOTE (DCED) 3/9/94
03/09/94 2703 (H) COSPONSOR(S): MULDER
03/18/94 (H) JUD AT 01:15 PM CAPITOL 120
03/21/94 (H) MINUTE(JUD)
03/23/94 (H) JUD AT 01:00 PM CAPITOL 120
03/23/94 (H) MINUTE(JUD)
03/30/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 524
SHORT TITLE: ARREST FOR VIOLATING RELEASE CONDITIONS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
03/09/94 2685 (H) READ THE FIRST TIME/REFERRAL(S)
03/09/94 2685 (H) JUDICIARY, FINANCE
03/09/94 2686 (H) -FISCAL NOTE (CORR) 3/9/94
03/09/94 2686 (H) -4 ZERO FISCAL NOTES
(2-ADM,DPS,LAW) 3/9
03/09/94 2686 (H) GOVERNOR'S TRANSMITTAL LETTER
03/30/94 (H) JUD AT 01:15 PM CAPITOL 120
04/08/94 3195 (H) JUD RPT 4DP 1AM
04/08/94 3195 (H) DP: GREEN, KOTT, JAMES, PORTER
04/08/94 3195 (H) AM: NORDLUND
04/08/94 3196 (H) LETTER OF INTENT WITH JUD
REPORT
04/08/94 3196 (H) -PREVIOUS FISCAL NOTE (CORR)
3/9/94
04/08/94 3196 (H) -4 PREVIOUS ZERO FNS
(2-ADM,LAW,DPS) 3/9
04/08/94 3196 (H) REFERRED TO FINANCE
BILL: HB 525
SHORT TITLE: CHARACTER EVIDENCE IN CRIMINAL TRIALS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
03/09/94 2687 (H) READ THE FIRST TIME/REFERRAL(S)
03/09/94 2687 (H) JUDICIARY, FINANCE
03/09/94 2687 (H) -4 ZERO FISCAL NOTES
(2-ADM,DPS,LAW) 3/9
03/09/94 2687 (H) GOVERNOR'S TRANSMITTAL LETTER
03/30/94 (H) JUD AT 01:15 PM CAPITOL 120
04/05/94 3122 (H) JUD RPT 4DP 1NR
04/05/94 3123 (H) DP: GREEN, KOTT, JAMES, PORTER
04/05/94 3123 (H) NR: NORDLUND
04/05/94 3123 (H) -4 PREVIOUS ZERO FNS
(2-ADM,LAW,DPS) 3/9
04/05/94 3123 (H) REFERRED TO FINANCE
BILL: HB 527
SHORT TITLE: EXTENDED PROBATION FOR CERTAIN CRIMES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
03/09/94 2690 (H) READ THE FIRST TIME/REFERRAL(S)
03/09/94 2691 (H) JUDICIARY, FINANCE
03/09/94 2691 (H) -5 ZERO FNS (2-ADM,CORR,LAW,
DPS) 3/9/94
03/09/94 2691 (H) GOVERNOR'S TRANSMITTAL LETTER
03/30/94 (H) JUD AT 01:15 PM CAPITOL 120
04/05/94 3123 (H) JUD RPT 4DP 1AM
04/05/94 3123 (H) DP: KOTT, JAMES, PORTER,
NORDLUND
04/05/94 3123 (H) AM: GREEN
04/05/94 3123 (H) -5 PREV ZERO FNS
(2-ADM,DPS,LAW,CORR)3/9
04/05/94 3123 (H) REFERRED TO FINANCE
BILL: HB 528
SHORT TITLE: PEREMPTORY CHALLENGE OF JURORS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
03/09/94 2692 (H) READ THE FIRST TIME/REFERRAL(S)
03/09/94 2692 (H) JUDICIARY
03/09/94 2692 (H) -4 ZERO FISCAL NOTES
(2-ADM,LAW,DPS) 3/9
03/09/94 2692 (H) GOVERNOR'S TRANSMITTAL LETTER
03/30/94 (H) JUD AT 01:15 PM CAPITOL 120
04/05/94 3123 (H) JUD RPT 5DP
04/05/94 3124 (H) DP: NORDLUND,PORTER,JAMES,
KOTT,GREEN
04/05/94 3124 (H) -4 PREVIOUS ZERO FNS
(2-ADM,DPS,LAW) 3/9
04/05/94 3124 (H) REFERRED TO RULES
BILL: HB 487
SHORT TITLE: SALE/DISPLAY OF MATERIAL HARMFUL TO MINOR
SPONSOR(S): REPRESENTATIVE(S) KOTT
JRN-DATE JRN-PG ACTION
02/14/94 2379 (H) READ THE FIRST TIME/REFERRAL(S)
02/14/94 2379 (H) LABOR & COMMERCE, JUDICIARY,
FINANCE
02/24/94 2522 (H) SPONSOR SUBSTITUTE
INTRODUCED-REFERRALS
02/24/94 2522 (H) LABOR & COMMERCE, JUDICIARY,
FINANCE
03/15/94 (H) L&C AT 03:00 PM CAPITOL 17
03/15/94 (H) MINUTE(L&C)
03/22/94 (H) L&C AT 03:00 PM CAPITOL 17
03/22/94 (H) MINUTE(L&C)
03/25/94 2970 (H) L&C RPT CSSS(L&C) NEW TITLE
2DNP 4NR
03/25/94 2970 (H) DNP: SITTON, WILLIAMS
03/25/94 2970 (H) NR: GREEN, PORTER, MULDER,
HUDSON
03/25/94 2970 (H) -INDETERMINATE FISCAL NOTE
(LAW) 3/25/94
03/28/94 (H) JUD AT 01:00 PM CAPITOL 120
03/28/94 (H) MINUTE(JUD)
03/30/94 (H) JUD AT 01:15 PM CAPITOL 120
04/07/94 3178 (H) JUD RPT CSSS(JUD) NEW TITLE
1DP 4NR
04/07/94 3179 (H) DP: KOTT
04/07/94 3179 (H) NR: GREEN, JAMES, PORTER,
NORDLUND
04/07/94 3179 (H) -PREVIOUS INDETERMINATE FN
(LAW) 3/25/94
04/07/94 3179 (H) REFERRED TO FINANCE
04/19/94 (H) FIN AT 09:00 AM HOUSE FINANCE
519
04/20/94 (H) FIN AT 08:30 AM HOUSE FINANCE
519
04/22/94 3661 (H) -CORRECTED ZERO FN (LAW) 4/22/94
ACTION NARRATIVE
TAPE 94-55, SIDE A
Number 000
The House Judiciary Standing Committee was called to order
at 8:10 a.m. on March 31, 1994. A quorum was present.
SSHB 420 - LIMITED LIABILITY COMPANIES
The first order of business was SSHB 420. CHAIRMAN PORTER
explained that this is the second time the committee will be
hearing the bill. He noted that it has been in a
subcommittee and there is a list of proposed amendments.
He asked Representative Gene Therriault to come forward to
discuss the bill.
Number 047
REPRESENTATIVE GENE THERRIAULT, sponsor of the measure,
explained that extensive meetings had been held, primarily
between staff and interested members of the public. In
order to address a number of concerns brought up by Mr.
Ingham of Fairbanks, the subcommittee considered and adopted
into the committee substituted a lot of sections from the
existing corporate codes, so that when an LLC is formed,
since it has that section that is like being a corporation,
then it would have to operate much like existing
corporations in the State of Alaska. He said there is a
separate sheet that goes through the bill page by page and
makes note of the different changes that were made. In
addition, other members of the public who were extensively
involved in adopting or deleting sections are available on
teleconference.
BOB MANLEY, testifying via teleconference from Anchorage,
said he has reviewed the proposed committee substitute for
SSHB 420 and said he thought it is fair to say that the
concepts behind the modifications are perfectly
satisfactory, and are significant improvements to the bill.
He said he did not have the sectional that the committee
has. Mr. Manley said various corporate formalities are
imposed such as filing a report, additional information in
the public filing. There is an inclusion of LLC interest as
security under our (inaudible)... In the drafting
committee, my (inaudible) Corporation Section had
significant input, as did others, and he believed it
appropriate at this point to pass the bill out.
CHAIRMAN PORTER announced that a copy of the current
sectional, or at least this listing of the amendments were
being faxed to the LIO. He announced the next person to
testify would be Peter Brantigan.
PETER BRANTIGAN, Member, Bar Association, testified via
teleconference from Anchorage. He said his practice
primarily in (inaudible) transactional tax claims. He said
he would like to testify on behalf of the LLC, because he
feels it is a unique opportunity to provide them with a
business vehicle that would provide a different vehicle that
would (inaudible) wonderful comparison between the "S"
corporations and that we are all familiar with and limited
partnerships. As many of you know, the "S" Corporation has
significant restrictions on it that would not be used in
many business operations. There is the 35 shareholder
restrictions, and the fact that we have to have U.S.
citizens, etc. The limited partnership, on the other hand,
does not allow for a limited partners to be involved in any
aspect of the management of the business. That compares to
the LLC which is a wonderful opportunity because it does
provide that flexibility.
MR. BRANTIGAN stated concerns has been expressed numerous
times by the people over limited liability, things of that
nature. As we see, in most situations, at least in my
practice, all corporations usually require a personal
guarantee that the shareholders (inaudible) anticipate, that
would be true to the LLC also. The nice things are you can
make the substantial or special allocations (inaudible)
between the LLC and the general partnership. He expressed
his support for this bill and it is something that will
bring them into the main stream with the rest of the U.S.
He said he would be happy to answer any questions.
CHAIRMAN PORTER said the next person to testify would be
Brian Durrell.
BRIAN DURRELL was next to testify from Anchorage. He said
he spent a couple of days in Juneau, working with the
subcommittee as a representative of (inaudible). He
explained he spent over eight hours in the subcommittee,
working through different comments they had received. The
areas they changed, primarily included the rights to
liabilities of the limited liability companies versus third
parties, and the rights and liabilities of members of either
the managers or members; these being members who are in
LLCs. The other areas they addressed related to the
administration of the LLCs with the Department of Commerce
(DOC), and they tried to conform it to the physical
standards and practices of the DOC with respect to
corporations. Mr. Durrell said he thinks the subcommittee
came out with a much tighter and stronger bill that
expresses all of the concerns, and he urged the committee to
pass it out.
There being no questions of Mr. Durrell, CHAIRMAN PORTER
asked John Abbott to testify.
Number 196
JOHN ABBOTT, testifying from Anchorage, said he had made
written comments which were eventually incorporated into the
bill as a committee substitute. He said he recommends
passage of the bill. He said he feels it will be good for
Alaska, but had one change he would request the committee
make. That change would occur in Section 10.50.600,
governing law which deals with the full faith and credit
parameters for foreign corporation or for LLCs operating in
the State of Alaska. The bill, as presently drafted, has a
clause he believes would work in allowing courts to
determine liability of members and managers. That clause
appears on line 27, in the committee substitute. It is the
liability and authority of it's managers and members. He
recommended the same language dealing with foreign and
domestic corporations, foreign (inaudible) corporations, be
utilized. That language appears in 10.06.705. Basically,
if the committee were to modify this language by placing a
period after the word "company", it would reflect the same
language as appears for foreign corporations operating as
(inaudible) corporations in this state.
MR. ABBOTT said certainly lawyers will argue about the
significance of the differences between the two versions
when they propose to do the same thing, and that is to
establish the rights of foreign companies to do business in
this state, using their own internal management clause,
which is uniformly recognized throughout this state.
However, he believes there will be problems with this
addition of liability and authority of it's managers,
because it is not defined anyplace else in our statutes.
There is no case law he is aware of that would define the
intent of this particular phrase, and it will be argued that
this creates a complete liability shield for all members if
the foreign corporations, state, or management agreements so
allow. Mr. Abbott said he would be happy to answer any
questions.
Number 260
The next person to testify was Craig Ingham.
CRAIG INGHAM, Alaska Bankers Association, testified via
teleconference from Fairbanks. He said after going through
this bill and doing the extensive rewrite, the Alaska
Bankers Association feels the bill is an adequate bill and
they no longer oppose it. The only condition he would add
is their legal council has not yet had an opportunity to
review the working draft, but in consensus of other members
of the group, he feels the bill provides the necessary
safeguards. He indicated his organization doesn't oppose
the bill at the present time. He noted he has no problem
with Mr. Abbott's comments.
Number 285
CHAIRMAN PORTER said the next person to testify is Jo
Kuchle.
JO KUCHLE, testifying from Fairbanks, said she agrees with
Mr. Abbott's comments. She explained that when she first
looked through the bill, she looked at the corporate section
that Mr. Abbott had referred to and she agrees the final
line was something that should be (inaudible) that he can
create the conflict of law question between (inaudible)
...determine what a manager and a member's liability is.
She expressed concern about that line, and wished the
committee would put the period at the end of line 26 and
strike the rest.
MS. KUCHLE said she had testified before the Labor and
Commerce Committee meeting and said she thought it was an
excellent bill. She said it is very necessary for the State
of Alaska. Ms. Kuchle said she thinks particularly Alaskan
small business owners would be left in the dark as far as
their ability to attract investment use from family members
who may not live in Alaska. She had clients ask her about
the possibility of becoming a limited liability company, and
she tells them that hopefully on January 1, 1995, you can be
a limited liability company, but in the meantime that is
just not an option. It is very limiting, particularly for
small business owners which, in Fairbanks, and in most other
states, are predominant (inaudible) small business owner.
She very much supported the bill and would like to see the
committee pass it out. There are a few bills that will give
Alaskans favorable treatment to the IRS, and this is one of
them.
Number 339
BOB MANLEY said he had no problem with the suggested
deletion. He wanted to clarify, as Mr. Abbott and he had
discussed, this change would not in any way alter the
ability of a foreign limited liability company to make
distributions of capitol and governed by the foreign law; no
more that our Alaska Corporate Code controls Atlantic
Richfield's ability to issue stock dividends, or cash
dividends, simply because they are doing business up here.
CHAIRMAN PORTER apologized that the meeting was held at 8:00
a.m. The time scheduled the previous day was taken up by
the House floor session. He announced the committee would
take a short at ease until a quorum was present.
Number 367
REPRESENTATIVE JAMES moved an amendment to page 38, lines 26
and 27, beginning with "and" at the end of line 26, and the
whole line 27 to delete.
CHAIRMAN PORTER, providing clarification, asked if she would
like to place a period after "company" on line 26 and delete
"and the liability and authority of it's managers and
members."
REPRESENTATIVE JAMES confirmed that was correct.
CHAIRMAN PORTER indicated that there is a proposed Amendment
Number 382
REPRESENTATIVE GREEN moved to adopt CSSS 420 (JUD), the "K"
version, dated 3/29/94. Hearing no objection, the committee
substitute was adopted.
REPRESENTATIVE JAMES moved Amendment #1. There being no
objection, the motion passed.
REPRESENTATIVE JAMES motioned to move pass out CSSSHB 420
(JUD) with individual recommendations, as amended, and with
the zero fiscal note.
CHAIRMAN PORTER asked if there was objection. Hearing no
objection, the passed out of the House Judiciary Committee.
He then expressed the committee's thanks to the subcommittee
which included Mike Monagle, Brian Durrell, Terry Banister,
Wes Coiner, Craig Ingham, Walt Wilcox, Barbara Cotting, Jim
Metcalfe-Helner, George Dosier, and Wilda Whitaker.
Number 424
CHAIRMAN PORTER announced there would be members of the
committee coming and going to other meetings, so with the
committee's permission what he intended to do is just ask
Dean Guaneli from the Department of Law to come up and
discuss the bills scheduled. He indicated he would like to
try and bring them up for a vote at the end of the
testimony.
HB 524 - ARREST FOR VIOLATING RELEASE CONDITIONS
HB 525 - CHARACTER EVIDENCE IN CRIMINAL TRIALS
HB 527 - EXTENDED PROBATION FOR CERTAIN CRIMES
HB 528 - PEREMPTORY CHALLENGE OF JURORS
Number 437
CHAIRMAN PORTER asked Dean Guaneli to come before the
committee to explain HB 524, HB 525, HB 527, and HB 528.
DEAN GUANELI, Chief, Assistant Attorney General, Legal
Services Section, Department of Law, explained that the four
bills are four of the six bills commonly known as the
Governor's crime package for this year. He expressed
appreciation to the committee for assistance in getting them
heard on fairly short notice. The Governor introduced six
bills, and in particular, these four were the product of
many months of work by members of the Department of Law and
other justice agencies. At the request of former Attorney
General Charlie Cole, they were directed to come up with
bills that would combat domestic violence and sexual
assault, that would protect women and children, and would be
simple, straight forward, direct, and narrowly focussed. In
addition, they were asked to come up with bills that would
have little or no cost to the criminal justice system; in
other words, little or no direct fiscal impact. The bills
before the committee are HB 524, HB 525, HB 527, and HB 528.
Number 463
MR. GUANELI explained HB 524 would make changes in the way
people can be arrested after they have been released on
bail, following a charge of domestic violence. Currently,
under the law, someone can beat up his wife, commit a
domestic assault, be arrested; and ordinarily, a court is
going to release that person from custody within a short
period of time. As a condition of that person's release
from custody, the person may be ordered not to contact his
spouse, girlfriend, ex-wife, etc, to refrain from alcohol,
to not possess any weapons, to do any variety of things that
will protect the public and make sure the person gets back
to court on schedule. Often in these cases, because there
is so much emotion involved in them, a person does not
comply with those conditions. He may come back to the
woman's house in the middle of the night, pounding on the
door, breaking windows, that sort of thing. That would be a
violation of his conditions of release. In order for that
person to be arrested, a police officer could not make an
immediate arrest. The police officer would have to find a
judge, present some information to the judge and get an
arrest warrant, and then go and find that person, and arrest
him. That adds a significant portion of delay in the
process and is something we that needs to be corrected. The
way HB 524 proposes to correct that is to allow police
officers, upon having reasonable information that the person
has violated his conditions of release in those kinds of
cases, to make an immediate arrest of that person. They
would not have to go before a judge and have that period of
delay. This is not anything that is terribly foreign in
Alaska law. There are a number of crimes that can be
subject to immediate arrest, even if they are not committed
in the officer's presence. In addition, you have to
contrast this situation where a person has already committed
a crime, already been charged with an offense and released
by the judge, with a situation where a woman has gone into a
civil court and gotten a domestic violence restraining
order. In other words, a person is not alleged to have
committed any crime, but the woman says she is afraid, and
the judge says he agrees, and orders the man not to contact
this woman. If that person does contact the woman, that
would be, under Alaska law, another separate crime, a
violation of a domestic violence restraining order. That
person could be immediately arrested right there. So we
have the situation where a woman who has not been assaulted,
but has gone into civil court and gotten a restraining
order, if that person violated that restraining order, he
can be immediately arrested. However, if she has already
been assaulted, and already had a black eye or a broken
nose, and the person has been charged with a crime, and
released on conditions of bail, and contacts her, he cannot
be arrested. It is a situation where victims of domestic
violence who turn to the criminal justice system, and think
they are being protected, actually have somewhat less
protection after an offense has occurred than someone who
goes into civil court and gets a domestic violence
restraining order. This bill is designed to correct that
anomaly in the law. It is a fairly straight forward, and
good idea that should be adopted.
Number 530
CHAIRMAN PORTER announced that there were two people in
Anchorage wishing to testify on some of these bills, Brant
McGee and Barbara Brink. He said as the committee goes
through the bills, Mr. McGee and Ms. Brink will be given the
opportunity to comment on each bill. For the information of
the committee, in overall laws of arrest, an officer can
make an arrest for a felony if he has reasonable cause to
believe that it happened and this person did it. In other
words, it does not have to occur in his presence. For a
misdemeanor, there are exceptions to the rule, and this
would be another one, but the general laws of arrest are
that you cannot make an arrest for a misdemeanor if it did
not appear in your presence, without an arrest warrant from
a judge.
Number 541
BARBARA BRINK, Public Defender's Office, testified via
teleconference from Anchorage. She stated HB 524 basically
changes the procedures, so they are in essence, locking
people up first, and asking questions later. She asked the
committee not to adopt this, because the current system
works well. In most of our major communities and many of
our rural communities, we have 24 hour magistrates who can
be contacted any time of the day or night. If there is an
emergency situation involved, certainly the police officer
would directly contact that magistrate and have the warrant
issued for someone's arrest. She discussed how an alleged
bail violation is handled. Ms Barbara Brink would receive a
call from the District Attorney's office telling her there
has been an allegation her client has violated his
condition. She immediately contacts her client, and usually
the third person (inaudible). The third person usually has
been appointed to watch over him, and bring him to court the
exact same day. At that time they are given a fair hearing
over whether or not there has actually been a bail violation
or not. The problem is that any of these domestic
violations and any allegations of abuse between family
members are now congruent for manipulation of the system, or
allegations that are not exactly truly understood. Ms.
Brink gave the example of a hearing in front of Judge
Johnson. Judge Johnson and the District Attorney had been
told that the third party, the person in charge of watching
her client had called into the magistrate's office and
reported a violation. The third party testified under oath
that she had not called anybody. In fact, someone had
(inaudible) called and made a claim that the client had
violated his bail condition. Under the current system, he
was allowed to a full and fair hearing. He was not locked
up unjustly. Under this proposed procedure, he would have
been immediately subject to arrest, would have spent the
night in jail, and would not have had a full hearing before
the court. He would have spent a considerable amount of
time in jail, waiting to find out what the allegations were
and what the evidence was. Ms. Brink said she understands
the committee's concerns, but she believes that whether
there are actual dangers of violence, a person does get a
restraining order, and that person that is subject to
immediate arrest. She said she believes this is an
exception of an old procedure that protects the people
involved; and the system as it works right now, appears to
be working fine.
Number 583
REPRESENTATIVE NORDLUND asked about a situation where
somebody was falsely reported and had to spend time in jail.
Is there any possibility that in a situation like that, that
person could have an immediate hearing? Could you arrest
them first, get them away from the person they are allegedly
threatening, and get them to a hearing right away, as to not
violate their freedoms?
Number 591
DEAN GUANELI said he thought Ms. Brink was correct in
asserting the court system is pretty good about getting
hearings scheduled as quickly as possible. Whether that is
at 8 a.m. in the morning, or at 1:30 p.m. in the afternoon,
he was not sure. It depends on the location, but certainly
within 24 hours, that person is going to get before a judge.
Mr. Guaneli referred to a situation where someone calls in
and falsely accuses a person of violating a condition, and
said he is not certain what could be done about that, but
the standards under this bill are that the police officer
has reasonable grounds to believe that a person had violated
conditions, and if that is an anonymous phone call, he would
question whether or not that is reasonable grounds. We rely
on police officers to make those kinds of judgments all the
time. In other words, when they think they have reasonable
grounds for believing that an offense has occurred, we allow
them to make an arrest in a large number of circumstances.
This does not change that. We have to rely on the good
faith of police officers to exercise some discretion.
CHAIRMAN PORTER asked Mr. Guaneli to discuss HB 525,
relating to character evidence in criminal trials.
Number 611
DEAN GUANELI referred to HB 525 and said this may be the
most significant of the bills. It amends Alaska Rule of
Evidence 404 in a way that allows additional evidence of a
sexual offender's background to be presented to the jury in
a case of sexual assault. Generally, under the Alaska's
Rules of Evidence, any relevant evidence is admissable,
anything that goes to prove a fact, or to disprove a fact is
considered admissable. There are some exceptions, and
Evidence Rule 404, Subsection B, contains a number of those
exceptions. In particular, if someone has committed some
crimes in the past, or committed some other "bad acts", it
is generally not admissable to show that the person is a bad
person; to show that the person has a propensity to commit
offenses. There are some exceptions to that exception,
however. I in the past, this legislature has ingrafted a
number of those exceptions, for example, allow additional
evidence of someone's prior offenses for child sexual abuse
in a later case of child sexual abuse. That change was made
in 1988. In 1991, there were additional changes made to
this rule, because the legislature believed, legitimately
that the courts were not interpreting the rule correctly.
They were keeping out too much evidence that was, not only
relevant, but important to a jury's consideration, and so
additional changes of this rule were made in 1991. Mr.
Guaneli said thinks that the judges, in many respects, are
still not interpreting the rule correctly. So what is being
proposed is a fairly narrow exception rule to 404 B that
says, "If in a trial of a sexual assault, you are claiming
that the victim consented, then we are going to allow the
jury to hear evidence that, in the past, you have committed
other acts of sexual assault." In other words, "other"
either you have been convicted of sexual assault in the
past, or there have been other women who have claimed you
have sexually assaulted them. It used to be the case that
many people would defend against charges of sexual assault
by saying simply that it did not happen. Now with new
techniques of forensic evidence, DNA analysis, and the like,
we can prove in many instances, that it in fact it did
happen, and so all of a sudden they have got to switch gears
in their defense, and they say that the woman consented.
Most juries would find it, not only relevant, but important
to know that two or three or four times in the past, this
person has been convicted of other sexual assaults, that
other women had claimed that he has also sexually assaulted
them. That would aid the jury in determining whether or not
a consent did occur. This is a fairly narrow change. It
appears on page three, lines 23 through 26. In crimes of
sexual assault where the defendant says there was consent,
the jury is allowed to hear evidence of prior sexual
assaults by that person.
Mr. GUANELI said some of the introductory material to the
bill gives an example of a fairly egregious case in
Anchorage, the case of Leo Hoffman. It is described on page
four at the very beginning of this packet that has been
provided to the committee members, of someone who is
essentially a serial rapist, who had been convicted of rapes
in California, came up to Alaska, continued to rape women,
claimed consent, actually got acquitted in one trial,
convicted of a slightly related offense, was released on
bail, raped additional women, and his pattern of conduct is
something the jury needs to know about in order for a jury
to accurately assess a claim that the woman consented, the
jury needs to know that there were previous instances of
sexual assault. So this is a fairly narrow directive change
to the Rules of Evidence to allow in this specific narrow
evidence.
Number 689
REPRESENTATIVE NORDLUND noted that in the front cover of the
materials, it says "HB 525, (Minerals?) of evidence of rape
victims aren't put on trial." He asked if we have a rape
shield law in Alaska.
MR. GUANELI said that a rape shield law does exist.
REPRESENTATIVE NORDLUND indicated he does understand the
intent of the bill and still needs to learn more about it.
He said he doesn't see anything in this bill that prevents
rape victims from being put on trial. They already cannot
be put on trial under most circumstances.
MR. GUANELI said in many instances, there is nothing that
will prevent a defendant from cross examining a victim and
through questions or through other evidence claiming that
there was consent. Evidence that the victim was
intoxicated, or had used drugs, or had been hitch-hiking,
or, for some other reason, had consented. That, in a sense,
is putting the victim on trial, but there is not really any
way to get around that consistent with the confrontation
clause of the constitution or the right to effective
representation. He said what the does is makes the
proceeding a little more fair. You learn everything that
the victim did, and all of the "bad things" the victim did,
all the unsavory things the victim did. On the other hand
you learn an awful lot more about what the defendant has
done in the past, and it allows a jury to really hear the
full story, and not just half the story.
REPRESENTATIVE NORDLUND said that basically puts a chilling
effect on the desire of the accused to claim there was
consent.
MR. GUANELI said if you were going to claim that, then we
are going to let in evidence of, that in the past, there
have been other rapes that you have committed.
Number 806
REPRESENTATIVE NORDLUND asked if it was true that there
could be previous sexual assaults that would detract from
the credibility of the accused, but for the particular crime
for which they are accused, there could have been consent
also.
MR. GUANELI agreed that there is no question about that, and
the way this would work is that a judge would ordinarily
hold a hearing outside the presence of the jury, and would
hear the evidence that the prosecution wants to present of
those other rapes, and the judge would make a determination
whether the facts were similar enough, whether there is
enough relation to this current offense that the jury ought
to hear that evidence. If the judge determines that the
prior rape was 20 years ago, it involved completely separate
circumstances, and that it would be more prejudicial than
helpful to the jury, or it would waste time, the judge can
disallow it in that particular case. If it would be helpful
to the jury, the judge would allow that in.
MR. GUANELI said there are lots of rules of evidence that
govern information that can come in under certain
circumstances, and not in others. One of the most common is
that if a defendant takes the stand and testifies, and he
is, in essence, putting his credibility in issue. Then the
prosecution can impeach that defendant by, evidence that in
the past, that person has committed crimes of dishonesty.
In other words, that is a dishonest person. Prior instances
of perjury, prior instances of theft, that sort of thing.
That is a standards rule that has been the rule in Alaska
and all of the states for a long time. You could make the
same argument that puts a chilling affect on a defendant's
right to testify. In essence, a trial is a search for the
truth, and if the defendant is getting on the stand and
putting his credibility in issue, then the jury has the
right and the court has a rule that the jury has a right to
hear that this person might not be the most honest person in
the world. Mr. Guaneli said this is along those same lines,
and this is along those same lines, it is the same kind of
concept, only to the issue of consent in a rape case. It is
a fairly narrow exception.
Number 753
BARBARA BRINK, testifying via teleconference from Anchorage,
said she are deeply concerned about this radical change in
evidentiary rules, by allowing what is called the propensity
evidence in order to convict someone of a crime. We are
directly assessing the constitutional right to due process.
This (inaudible) the criminal justice system and the Alaska
system, that people charged with a crime are presumed to be
innocent, and they shall be convicted only upon proof beyond
reasonable doubt they committed this particular crime with
which they are charged and on trial for before the jury.
Normally, proving somone's propensity for his (inaudible) to
commit crimes is not admissable because we only want to
convict people who actually did the crime. We do not want
the jury convicting someone because he has done something
like it in the past, or because they think he is a bad
person, or because they think he is the kind of person who
might do this. We want to convince someone if he did. And
for that reason, this type of evidence is not usually
admitted. Innocent people can get convicted this way. Ms.
Brink gave an illustration of the case of Leo Hoffman. Leo
Hoffman was acquitted because there was insufficient proof
that he had committed rape in this particular occasion. The
(inaudible) says he was convicted of related crimes. The
evidence shows that Mr. Hoffman, and the woman involved in
this case, (inaudible) witness, had been consuming drugs
together for a great part of the evening. Mr. Hoffman was
convicted of the drug charge. Apparently the jury did not
feel that she was a credible witness, and they did not
believe that there was (inaudible) in this particular case.
If in fact, Mr. Hoffman had a pattern of doing this kind of
crime in the past, that was already admissable. If his
prior convictions had been for anything like your particular
charge for which he was on trial, the evidence rules already
permits that type of evidence to be admissable. Clearly,
whatever Mr. Hoffman's prior convictions were, they were not
similar enough in this particular case to have any
relevance whatsoever. That is why the evidence was not
admitted. Additionally, the law is drafted very broadly.
There is no limit on how old the information must be, how
verified the information must be. There is no limit on how
certain the information must be. Although it is promoted in
the (inaudible), it would be very time consuming to have
(inaudible), where people from no (inaudible) crime or
certainty are going to be compelled to come in, and tell the
judge what they would tell the jury, and then the judge
would have to determine (inaudible). She agreed with
Representative Nordlund, saying this bill does not really
address that. It does not provide any additional protection
for victims, and it does not provide a safeguard that will
reduce the (inaudible). She believes the rules, as they
stand today are a fair accommodation, and help us ensure
that only the guilty are convicted.
CHAIRMAN PORTER asked if Cindy Smith wished to testify.
Number 806
CINDY SMITH, Executive Director, Network on Domestic
Violence and Sexual Assault, described the network as a
statewide coalition of nonprofit programs that serve victims
and their families. She said she wanted to make a very
short comment on the bill that was heard prior. The origin
of HB 524 was from a conference on the National Council of
juvenile family court judges last year that the network
attended along with a number of judges. This specific issue
about violations of conditions and release was brought up by
the judges as a pressing problem that they would like to
have seen solved.
She said they obviously disagree with the public defender
about the speed and ease with which a person can be charged
and held on a violation of bail conditions. A bench warrant
process is not a quick process, particularly in a domestic
violence situation which is very volatile, and where people
come back. It is ironic, if someone is arrested, there is
less protection for the victim currently, that there is
under civil law. Not all victims get restraining orders.
They think if you get somebody arrested, that ought to cover
the situation, and there are officers that are literally
unable to respond right now. They very much support that
bill, and she repeated that the origin of it was actually a
request from judges about something that would help make the
process consistent in domestic violence.
MS. SMITH referred to the change in the Rules of Evidence,
she would not try to speak to the paper that the Department
of Law wrote in terms of what it says. She said the consent
defense has become increasingly common, as Mr. Guaneli said,
as they have gotten more sophisticated in collected physical
evidence through rape exams, and through genetic testing and
things like that. Defendants are more likely to use
consent, both because of that and because it presents a
specific means of a piercing rape shield. This idea we have
that we solve the problem of not putting victims'
backgrounds at issue with trial by passing the rape shield
law is only partially correct. It certainly has prevented
the most egregious cases of going back years and years or
bringing in completely outrageous information, but still and
routinely, defense attorneys particularly in the claiming of
consent, are able to go back into the victims' background,
put her in the position of being the defendant, put her
behavior at issue, as if consent had nothing to do with a
two party action. What is being said in the bill, is that
when you claim consent, you are talking both about the
victim's behavior, and about your own. You are, in fact,
putting your own behavior at issue, and under those
circumstances, it is appropriate to talk about your past
behavior. The claim of consent in fact, puts victim's
backgrounds and immediate actions at issue. We feel it
should be at least the same burden on the defendant. Ms.
Smith said her organization supports the bill and urges the
committees support. She pointed out that it is not exactly
a radical change in the law. A similar change was made in
children's cases in 1988, so judges do keep a very tight
reign on what goes into court in terms of potentially
prejudicial information. They will still be doing that
weighing test. But it gives victims at least a chance, in
cases of serial rape, to be able to talk about not just what
they did that night, or the preceding three weeks, or the
last month, but also what the defendant has been doing. She
stated the network does support the bill.
Number 862
The next person to testify was Jayne Andreen.
JAYNE ANDREEN, Executive Director, Council on Domestic
Violence and Sexual Assault, expressed the council's support
of all four of these bills, but particularly HB 524 and 525.
She indicated she would like to add a few comments regarding
HB 524. The example that the Public Defender provides of
the false allegations is something that it seems like in
domestic violence cases, and sexual assault cases, there is
a lot more concern on the public's perception about false
allegations, but the reality, as studies show, it is the
same as other crimes, it is two percent. One of the
problems from the victim's standpoint that HB 524 is trying
to address is these violations take place and the problem
times are from 11:00 p.m. to 4:00 a.m. Judges and
magistrates do not want to be woken up at that time, come
down to the court and do a standard type of procedure.
Quite often they end up waiting until the morning, and in
the meantime, what the victim has to do if she wants to feel
safe, is pack herself up and pack the kids up, and go
someplace else, go to a friend's, go to a shelter, go to a
safe home. This bill addresses that so there can be an
immediate arrest if the law enforcement officer feels like
there is just cause for that, then he can be arraigned; it
can be looked at the next morning or afternoon.
JAYNE ANDREEN referred to HB 525, "Character Evidence," and
said she believes there is a public perception that even
though we hear the statement, "Rape is not a crime of sex.
It is a crime of violence where sex is used to have power
and control over someone." Even though we hear those words,
and we understand it, when it gets right down to it, people
think of it as sex. It is referred to as a sex crime. It
is not a sex crime, it is a violent crime. So when it goes
to court, if there is a consent defense, the victim is the
one who has to answer to why she was drinking, why she was
in that place, why she was there. Ms. Andreen said she
doesn't have hard statistics on this, but she has been
looking at statistics for Alaska, and she estimates that of
all sexual assaults that occur, the conviction rate is
probably between three and five percent in this state.
TAPE 94-55, SIDE B
Number 001
JAYNE ANDREEN (continued) Anything we can do that balances
out that system that lets victims take advantage of the
system and feel like they are being heard without having to
be on trial themselves. It will help end these types of
crimes.
Number 015
REPRESENTATIVE NORDLUND said in child sexual assault
situations there is an established pattern where you could
basically convict the individual based on a series of
assaults. Is that the loophole that when you're getting rid
of language here to show a common scheme or plan? Is that
the law that you are trying to get rid of the loophole in?
Number 034
MR. GUANELI said that is a limitation on the current rule
governing admissability in child sexual abuse cases. It was
felt that was too restrictive, only to show a common scheme
or plan, and that there are other reasons why evidence ought
to be admissable, and some of them are shown on lines ten to
twelve, "motive, opportunity, intent," etc. We felt that
limiting language was too tight and ought to be deleted.
Number 040
REPRESENTATIVE NORDLUND referred to the words that are being
deleted in terms of the time, "not too remote in time", and
asked how has that been interpreted by the courts so far?
He asked if ten years reasonable?
Number 063
MR. GUANELI said he thought the problem was that it is
unclear how that ought to be interpreted, there were varying
interpretations and it was felt that putting in a set time
frame was more appropriate than leaving it quite so open
ended as that.
Number 073
MR. GUANELI then discussed HB 527 which extends probation
for certain crimes. He said the bill extends the probation
for certain crimes extends probation for sex offenders from
five to ten years. Under current Alaska law, a person can
only be put on probation for five years, and that is based
partially on experience which has shown that after two or
three years, if you have not had your probation revoked then
you are pretty much going to succeed in your probation, and
that certainly five years would be outside. If you are
going to violate probation, it is usually going to happen in
the first couple or three years. That is true for most
offenses. The one exception is sex offenses. Particularly
child sex offenses occur over a long period of time. There
is a long period of activity that might not appear to be
criminal activity; it is grooming activity, and offenders
kind of work their way into that particular criminal conduct
over a long, long period of time. It takes a long period of
time to establish a certain relationship with a child, a
relationship of trust that will allow them to commit those
offenses. In addition, sex offenders, unlike a lot of
offenders, really can control their conduct. They can be
deterred, and one of the primary ways of deterring someone
is by having them on probation. In other words by having
them know that during this period of time if they violate
their probation, they can be put back in jail. It was felt
that as a result of the notion that sex offenses occur over
a long period of time, and they can be deterred, that
extending the allowable range of probation from five to ten
years does a couple of things. First, if the initial
victims were very young, putting a person on probation for
ten years allows them to grow up during a period of time
when that person is supervised and is still under the
authority of the court. Because they can be deterred, it
makes it less likely that they will commit further offenses
for the period that they are on probation. They know that
there is this hammer hanging over their head. If they
violate their probation they can be put back in jail.
MR. GUANELI said that for whatever reason, the treatment of
sex offenders is an "iffy" thing. He sat on the Sentencing
Commission for two and a half years. The testimony we heard
is that rehabilitation is not very effective for sex
offenses. The programs we have, although it is laudable,
there is not a real high success rate, and so we have people
who usually serve three to four years in prison, they are
released, and they are back into society and they can be
grooming children again in fairly short order. There is a
need in certain cases, and this does not require that this
long of a probation period be imposed, but there is a need
for a longer period of probation. The way that the bill is
designed to not impact Corrections significantly is that
there is a provision in the bill that says if a person goes
for a period of five years without committing a violation of
probation, that instead of having active probation, where
they go in once a month to see a probation officer, it
becomes unsupervised probation. In other words, they can
perhaps submit a monthly report to the probation officer, it
does not have to take up a probation officer's time. In
other words, there is no specific fiscal impact on the
Department of Corrections, yet there is still that hammer
hanging over the person's head if a violation of conditions
occur, there can be a probation revocation petition filed,
and the person will come back before the courts. As far as
the sex offender is concerned, there is still this hammer
hanging over them. As far as the Department of Corrections
is concerned, they do not have to have another person on
their active caseload for probation. It was designed to
work that way so there would be a minimal impact on the
Department in terms of their budget.
Number 181
REPRESENTATIVE NORDLUND noted that there was nobody from
Corrections present. The fiscal note from Corrections would
suggest that there is not a problem or a need for the bill,
because it is zero. He said he would think that if there
were some situations in which somebody would violate the
conditions of their probation, and be thrown back in jail,
that there would be some fiscal impact.
Number 193
MR. GUANELI suggested that probably for every sex offender
who is put back in jail because their probation has been
extended, we may have deterred another sex offender, who, if
this bill had not been in effect, would have been off
probation and charged with a new offense.
CHAIRMAN PORTER said if a sex offender is out and violates
probation, it is probably because they caught him very close
to committing another offense. Having put him away for the
violation as opposed to the offense, saved the trial, it
saved impact on Corrections, the courts, the police, and
everybody else.
Number 220
REPRESENTATIVE NORDLUND said that could be so, but it would
be nice to see that in the fiscal note. He said the bill is
a good bill, but noted he is concerned about the number of
crime bills that have been passed this year and the fiscal
impacts are really adding up. He said in the House budget,
there is $5 million for all new legislation. Representative
referred to the comments of the Chief Justice to the Joint
Session the other day, and said it is one thing to pass all
the bills, but it is another thing to actually put the
machinery in place; to enforce and prosecute, and provide
correctional space for the new offenders. Representative
Nordlund said he is becoming more and more concerned about
the fiscal impacts of the legislation.
Number 233
REPRESENTATIVE JAMES had a comment regarding new bills and
fiscal notes. She asked which comes first, the chicken or
the egg? She said would like to spend some time going
through Alaska's laws and taking off the laws that are on
the books that have fiscal impacts and are not being funded.
If there are good bills on the books, they probably would be
funded. She indicated that she thinks that the good laws
should be passed.
Number 246
CHAIRMAN PORTER responded to that the issue is a legitimate
issue. He said there have been several bills that have come
through the Judiciary Committee which have not had negative
fiscal notes, that have certainly been of assistance to the
Department of Law and the Court System which have impacted
their case load positively. He referred to those who are in
the agencies trying to do their jobs and said what the
legislature is providing is the tools to do their jobs. He
said the legislation perhaps helps in deterring people from
actually committing these crimes. The impact of that is
going to be a reduction of problems for these agencies. He
said we don't take money away from them because we have
positively affected them. Chairman Porter said he doesn't
think that there is an automatic reduction of ability when
new laws are passed, because the legislature don't
appropriate $1 million to go with it. There is an
enhancement of ability these agencies do what they can with
what they have.
Number 284
REPRESENTATIVE NORDLUND said his concern is the impression
that the public will have that by passing these laws, Alaska
is going to be a safer place to live. In some cases, it
will be, but if the legislature doesn't provide the funding
to the agencies to enforce the laws, it is a bit of a sham.
No single individual is responsible for this, but before the
session is over, he hopes the majorities of both bodies
would sit down and figure out what to do. The agencies will
probably end up figuring out which of these laws they are
really going to be able to enforce, and in some case, the
protection the public feels they are going to get from these
just will not happen because the funding won't be provided
to them.
Number 303
CHAIRMAN PORTER indicated he was a member of the budget
committees for the Court System, Public Safety, and the
Department of Law, and said those agencies fared better than
others. He indicated the Court System had a $17 thousand
one time only last year expenditure, and if it was not for
that, they would be funded at the same level as last year.
He said he doesn't think there is anybody else who is
getting that treatment.
Number 316
REPRESENTATIVE JAMES referred to fiscal notes and said she
has been extremely distressed about the way the fiscal notes
are calculated. A department or an agency can be directed
to the most effective use of those funds.
REPRESENTATIVE JAMES said when you add more and more things
for people to do, there is going to be some kind of a fiscal
impact, but a lot of it just falls in the cracks and a lot
of it gets done with the same amount of money. To say that
because the fiscal notes are so large that the legislature
should not consider passing legislation, is a weak excuse.
It is valid to the public.
Number 341
CINDY SMITH said she spoke with the Department of
Corrections about their fiscal note, and the reason it is a
zero note is because there currently have a five year period
of probation. So within the time frame of the fiscal note,
if the bill is passed tomorrow, it will not affect them
within the time frame they are required to report, to begin
with. Secondly, they view it as a tool as prisoners are, in
fact, being furloughed, and out on parole. The pressure
within the correction system increases, as a tool, they can
use to continue to monitor. She said her impression is they
are in support of the idea, but the actual answer to the
fiscal note question is within five years, it is a standard
period of probation, so it does not have an impact that they
would find reportable within the context of a fiscal note.
Number 360
REPRESENTATIVE NORDLUND noted that on the fiscal note, it
says because the extended period of probation is
unsupervised, no fiscal impact is expected. I would suggest
because of this bill, there is a need for this bill in that
some cases there will be supervised probation over the five
year period, so that is a good rationale, but they ought to
change what it says on the note.
CHAIRMAN PORTER asked Mr. Guaneli to discuss HB 528,
Preemptory challenge of jurors.
Number 366
MR. GUANELI said HB 528 would correct an anomalous situation
where in not only in sexual assault trials, but in all
felony trials, the defense has an opportunity to exercise a
lot more control over who sits on the jury than the
prosecution does. In jury selection, there are certain
rules of the court that are spelled out in some detail that
will excuse jurors for certain specific reasons. They have
heard too much about the case and they cannot be fair, or
they have a certain criminal record. He said there is a
whole list of reasons why you exclude jurors. They call
them challenges for cause, there are reasons for cause that
you excuse a juror. Mr. Guaneli said then each side in the
case has an opportunity to also excuse specific jurors for
whatever reason they want. There are rules that you cannot
exclude people on the basis of race, etc., but for other
reasons, you do not have to give reasons, you'd just say you
would like juror number three excused. He referred to
defendants and said they may want to excuse all the people
who have been victims of crime in the last five years.
Through questioning, you find out about those and you ask
that those people be excused. They will say that they can
be fair jurors, and they probably can, but defense might not
want to run that risk.
MR. GUANELI said from the prosecution standpoint, he might
not want someone whose brother had been previously convicted
in the last year of something, just because we may not want
to run the risk of that person not being completely fair.
In exercising those challenges, preemptory challenges, the
defense in a felony case gets to do that ten times, to
excuse ten people. The prosecution only gets six of those
challenges or can only excuse six people. That difference
allows the defense, in a large number of cases, to have much
more say over the twelve people who are going to be deciding
that case. What is kind of strange is that in misdemeanor
cases, both sides have an equal number of those challenges.
They each have three. In felony cases, the defense has ten
and the prosecution has six, and this bill proposes to
equalize that number of challenges, and to speed up the
jury's selection process. The proposal is to equalize them
where each side has six. This rule came from the federal
court rules. In territorial days, Alaska was under the
federal court system, and when the change-over came, the
Alaska Supreme Court just adopted the federal rules of
procedure. In the federal rules for misdemeanor cases, each
side has three challenges.
Mr. Guaneli referred to death penalty cases in the federal
system and said each side has an equal number of challenges,
they each get 20 challenges. But for felony cases, for some
reason, the defense gets ten and the prosecution gets six.
We propose to equalize that at six each. In the Senate
State Affairs Committee there was some discussion as to
whether it should be six each, or eight each. In Senate
Judiciary Committee Ms. Brink, testifying for the Public
Defender Agency, indicated she did not have a problem with
it being equal as long as each side got ten. Mr. Guaneli
said he would not have a problem with that. The
equalization has been recommended by the American Bar
Association, and the proposal makes a lot of sense and makes
the process a lot more fair. That is the proposal. The
number is for you to decide.
BRANT MCGEE, Director, Office of Public Advocacy, testified
via teleconference from Anchorage. He said they are opposed
to this HB 528 for a number of reasons. He said they
believe it is based on two false premises. One is that
there is an uneven playing field now. The second is that
this proposal will save time, and therefore money. Both are
untrue. This proposal was examined by the Criminal Rules
Committee in 1986. He noted the committee is composed of
defense attorneys, prosecutors, and judges. The proposal
was unanimously rejected in 1986. Their rationale for such
rejection is the change in a letter from the chairman of
that committee. Further, the memorandum from Judge
(Mihalsky?). (inaudible) who also argued for the retention
of the current rule. It is a rule that served the federal
system for many decades and it served Alaska well since
statehood.
MR. MCGEE noted the reason the defense has more preemptory
challenges is plain and clear to anybody who watches jury
selection in a felony trial. That is that many more jurors
are more prosecution oriented than they are defense
oriented. And if you only have to look at your own reaction
to public comments regarding crime, you will know this is
true. It is certainly this legislatures perception that
more people are interested in harsher and more comprehensive
prosecution of wrong doers. Then there are people who think
there ought not to be such efforts made. Mr. McGee said
that is reflected in jury panels and it always has been.
Frankly, the presumption of innocence is an artificial
contract that we ask jurors to keep in mind throughout the
course of the trial. But the presumption of innocence
certainly does not apply and is not used by jurors when they
first walk into the court room. Mr. McGee said in his 16
year career and more than 50 jury trials, He has never heard
a prosecutor or judge complain about the numbers of
preemptory challenges and the reason is the defense needs
more preemptory challenges in order to assure a fair panel.
Mr. McGee said he would prefer to see more preemptory
challenges for the prosecution. He noted he does not object
to making it ten and ten, because current practice is that
typically, defense attorneys exercise about twice as many
preemptory challenges as prosecutors. The reason is they do
not have to, because members of the panel are generally far
more acceptable to the prosecution than they are to the
defense.
Number 514
BARBARA BRINK said she would like to emphasize on the time
and cost saving measures. She referred to the two
preemptory challenges exercised in the courts in selecting a
jury and said it goes by very quickly. The parties have
already had an opportunity to talk to the jurors about their
own individual life experiences, to analyze how they are
going to affect their ability to sit on a particular case.
Every one of us probably has a type of case that we should
not be a juror on.
Ms. Brink said Judge Mihalsky, when he wrote the letter to
the Rules Committee editing their change in the current
practice, also pointed out another important area, and that
is the perception of fairness. The preemptory challenge is
a small price to pay in order to provide some assurance to
the defendant that he is getting a fair, impartial jury.
REPRESENTATIVE NORDLUND asked Mr. Guaneli to explain what we
are really trying to fix here. It seems that as long as we
are going to give the benefit of the doubt to the accused,
and taking into consideration that you are innocent until
proven guilty, why not let the defense have more challenges
than the prosecution?
Number 583
MR. GUANELI said it is simply a matter of fairness. If
perspective jurors come into the court believing that there
is some reason why they are there, he doesn't see anything
wrong with that. In a felony case there has to be a Grand
Jury that has already determined that there is sufficient
evidence to bring this case to trial. They know that they
are going to hear some evidence. That doesn't mean that
they are biased towards the prosecution, but they know there
is a reason why they are there. Mr. Guaneli said the
defense has the presumption of innocence but the prosecution
has the burden of proof. The system is designed to be
fairly equally weighted. He said currently the process is
set up to be fairly evenly matched, but in the selection of
the jury, it's not. Evening up the ability to select the
jury is fair and makes the system work better.
Number 603
DANIELLA LOPER, Committee Aid, House Judiciary Committee,
asked if they would like to talk about whether this will
bring Alaska up to national standards. She asked what the
national standard is.
Number 614
MR. GUANELI said the American Bar Association standard is
that the number of preemptory challenges be equal. He did
not think they set a specific number. They allow that for
every state, but that there be a quality for the jury
process. There was a study some years ago, and most other
states are equal. He thought there were some exceptions in
death penalty cases where some states allow the defense
additional challenges in death penalty cases.
Number 618
REPRESENTATIVE NORDLUND suggested in the interest of
compromise, he would like to move a conceptual amendment.
Number 628
CHAIRMAN PORTER said they would have to wait for the other
two members to return. He announced the committee would
stand at ease to await the return of the members.
CHAIRMAN PORTER called the committee back to order.
Number 637
REPRESENTATIVE GREEN asked if the number of preemptories was
reflective of the number of defendants.
Number 650
MR. GUANELI said there is a provision in the court rule for
a judge to allow a defendant additional challenges if
fairness requires that. If there are a large number of
defendants or if the case has gotten a lot of publicity, but
not enough to move it to another place, additional
challenges are frequently granted. That becomes a
discretionary matter for the judge.
Number 657
CHAIRMAN PORTER asked if that provision applied to both
sides or to just the defendant.
MR. GUANELI said it is possible for the prosecution to get
additional challenges, as well as the defendant.
Number 658
REPRESENTATIVE NORDLUND suggested that they change the
balance to eight and eight. The amendment would occur on
page 1, line 9, change "6" to "8." First, it would level
the playing field like the American Bar Association
suggests. It does reduce by two, the amount of challenges
allowed to the defense, but not by four as suggested in the
bill which is probably going a too far. The overall number
of challenges remains the same. He moved the amendment.
There being no objection, the amendment passed.
Number 681
REPRESENTATIVE JAMES made a motion to pass HB 528 out of
committee with individual recommendations and the attached
fiscal notes. Hearing no objection, the motion passed.
Number 691
CHAIRMAN PORTER said he would like a motion on HB 527.
REPRESENTATIVE KOTT moved that HB 527 be passed out of the
House Judiciary Committee with individual recommendations
and zero fiscal notes.
CHAIRMAN PORTER objected. He said he objected as he would
like an executive summary of the bill.
Number 696
MR. GUANELI said HB 527 extends the maximum period of
probation from five years to ten years, for sexual
offenders. The reason is that sexual offenders often do not
start re-offending for more than five years after they have
been caught because they can be deterred for an additional
length of time, and because having them on probation for an
additional period of ten years, particularly if the victims
were very young children, allows the victims to grow up
during the period of time when the offender is on probation,
and gives them some additional protection. It is designed
not to have impact on the Department of Corrections by a
provision which says that if they go for five years without
having their probation revoked, any remaining period of
probation is essentially unsupervised. They don't have to
see a probation officer. A probation officer does not have
to carry them on their case loads, but there is still the
possibility of the probation being revoked and going back to
jail during that additional period of time. Sex offenders
are one class of offenders that can be deterred by having
something hanging over their head, as distinct from other
types of offenders if they are alcohol or drug related
sometimes no matter what you do, there is not much
deterrent, but sex offenders can be deterred, and for that
additional period of five to ten years it is appropriate to
deter them.
Number 721
REPRESENTATIVE GREEN asked if it would be advantageous on
line nine of page one to make that "may?" If somebody does
carry over just a little bit, maybe one more year, in the
sixth or so, maybe then letting go? Or does that somehow
defeat the purpose?
Number 732
MR. GUANELI said Corrections felt comfortable with this
because they wanted to say there would be no fiscal impact,
and having "may" in there would probably require a judge
having to make the decision. You would probably have to
file another piece of paper and have another hearing. He
said he thinks it was felt that if you have gone five years
and not done anything, then you really do not need to see a
probation officer face to face. A lot of these sex
offenders are just regular people who hold down jobs and are
employable. It is not as if they have to be urged to go out
and find employment, and that sort of thing.
Number 746
REPRESENTATIVE GREEN said it was Mr. Guaneli's word
"probably" that makes him wonder.
MR. GUANELI said that was a good point, but basically,
Corrections felt comfortable with this, and based on that,
that is what he would urge the committee to stay with.
CHAIRMAN PORTER said he thought there is a balancing between
fiscal responsibility and accomplishment with this
particular category of people. He said he feels the risk to
be minimal.
REPRESENTATIVE GREEN said he was not trying to delay things,
but it is his concern that it's felt to be imperative that
they still do it at 4.8 years, and this guy is still a
threat, but at 5.1, suddenly he is okay. Representative
Green suggested there may be a period that 5 is a reasonable
number to look at, but maybe after 2, this guy is okay
again, but this guy continues to do that, and that is
alright. He said he feels uncomfortable about letting these
people go.
CHAIRMAN PORTER said he thinks Representative Green's
analogy assumes that there is full probation supervision for
those 5 years, and in most cases, that is not the case.
REPRESENTATIVE GREEN said he understands that, but his point
is that on those infrequent occasions, he would rather error
the other way even if it costs a little more. If this
happens infrequently, then it should be a zero fiscal note.
Number 765
REPRESENTATIVE JAMES agreed with Representative Green.
Number 789
MR. GUANELI noted that there is currently another law in
Title 33 stating that a probation officer can go to a judge
at any time and say "this person is really doing well.
There is no further need for supervision." He said that is
something a probation officer can currently do. Mr. Guaneli
said they don't do that without a judge's authority. A
petition has to be filed with the judge and a hearing would
be held. He said in terms of state liability, probation
officers are not going to make this decision on their own.
Number 823
REPRESENTATIVE GREEN still maintained concerns over this
supervisory period.
Number 840
REPRESENTATIVE JAMES asked how many people are still having
supervised probation at the end of the five years.
MR. GUANELI answered Representative James' question saying
that the majority of people do not still have probationary
supervision after the five year period.
Number 843
REPRESENTATIVE GREEN proposed the amendment that "shall" be
changed to "may."
CHAIRMAN PORTER announced the amendment is on page one, line
nine, called Amendment #1. Chairman Porter then objected to
the proposed amendment. A roll call vote was taken
Representatives Porter, James, and Kott voted "no."
Representative Green voted "yes." Representative Nordlund
passed on voting. So the amendment failed.
MR. GUANELI gave the executive summary on HB 525. He said
the bill amends the Alaska Rules of Evidence to permit, in
sexual assault cases, when a defendant raises the defense
that the victim has consented, and knows narrow
circumstances, the prosecution is allowed to permit evidence
of that defendant's prior convictions or acts of sexual
assault, or attempted sexual assault. The basis for the
legislation is that, in many cases, particularly with serial
rapists, the jury never hears that this person has a long
history of sexual assaults and the person is allowed to
claim that the victim consented, where as if the jury had
heard that there had been a series of sexual assaults in the
past, the jury might have a very different view of whether
or not there was consent or lack of consent on this
particular occasion. That is a primary basis of the
legislation. It is a very narrow focus directed exception
to a rule in Alaska and elsewhere that prior crimes are not
allowed into evidence. It essentially says that when a
victim is put on the stand and is questioned about
everything that went on that night, drug use, alcohol use,
hitch-hiking, whatever, that the defendant's past is also
relevant as to how many other women he has sexually
assaulted or how many he has attempted to assault.
Number 888
REPRESENTATIVE KOTT made motion to move HB 527 out of the
House Judiciary Committee, with individual recommendations,
and the attached zero fiscal note. There being no
objection, the motion carried.
TAPE 94-56, SIDE A
Number 001
CHAIRMAN PORTER announced The victims in sexual assault
cases, by virtue of allowing evidence of previous sexual
assaults by the defendant to be admitted if there is a claim
that the act was not a violent act, but was a consensual
act. He asked if there was discussion.
Number 022
REPRESENTATIVE NORDLUND said he would have a problem with
this bill, except for the fact that he has been informed by
Mr. Guaneli that there are rules of evidence that would
allow the judge to dismiss those situations that were
unrelated. If the person asserts that there has been a
consent, and that there might have been previous crimes
committed, are two unrelated things, and to relate them here
might be improper in some cases, and most judges would find
that if there is no relationship, that would not be
admissable.
Number 043
REPRESENTATIVE GREEN moved the HB 525 be passed out of the
House Judiciary Committee, with a zero fiscal note, and
individual recommendations. Hearing no objection, the
motion carried.
Number 055
CHAIRMAN PORTER announced HB 524 was before the committee.
MR. GUANELI explained that HB 524 would allow when someone
who has been arrested and charged with an offense involving
domestic violence, and is released from custody under
conditions of bail, if that person violates those
conditions, there currently is a long period of delay where
a police officer has to go before a judge, explain what
happened, get an arrest warrant, and go out and find that
person. This period of delay in these kinds of very
emotional, highly explosive relationships is dangerous, and
there ought to be an immediate arrest made when a defendant
violates a condition of release. Usually the primary
condition is you do not contact your ex-wife. It would also
make this situation comparable to the situation that
currently exists that when a woman goes into civil court,
gets a domestic violence restraining order, even though the
person has committed no crime, if she is just fearful of the
person or believes that he might commit a crime, a judge
will issue a restraining order. If there is any violation
of that, the person can be immediately arrested. It is an
anomaly that people who have committed crimes and women who
have gone to the criminal justice system for protection
actually have less protection when the ex-spouse comes
banging on their door in the middle of the night. This just
equalizes the situation and the protection given in those
circumstances.
Number 104
REPRESENTATIVE JAMES made a motion to move HB 524 out of the
House Judiciary Committee with individual recommendations,
and zero fiscal notes.
Number 108
REPRESENTATIVE NORDLUND objected for the purpose of
proposing an amendment. The intent of the amendment is to
make sure that individuals who are arrested under the
provisions of this new law would be able to have an
immediate hearing in the court. Representative Nordlund
referred to the issues raised by the public defender and
said there could be situations where people are innocent,
and they need to be brought in front of a court immediately
to determine whether or not they were properly arrested. It
would change the law to say you would have the arrest first,
and then have the hearing; instead of having the hearing
first, and then the arrest. This would be an improvement,
but would still provide some protection for innocent people.
Number 132
REPRESENTATIVE PORTER indicated he was against the
amendment. As he had explained, what this bill does is make
one additional exception to the basic laws of arrest in this
state, which are that an officer may make an arrest without
a warrant on a felony crime if he knows the crime was
committed and has reasonable cause to believe that the
person he intends to arrest committed it. That is to say,
he does not have to appear in his presence. If he has
investigated and found the suspect with those elements
present, he can make the arrest. The general rule for
misdemeanor is that rule does not apply. To make an arrest
without a warrant, you have to have seen the offense occur.
There are exceptions to that. Representative Porter said
the bill asks the legislature to consider one other
exception to that rule. The said the rationale is that in
domestic violence situations, it is a condition of release
anyway. Some of the other exceptions are in a domestic
violence case, an officer who did not see the assault, can
come onto the scene and if he can build probable cause that
there was an assault, he can make an arrest, thus freeing up
the victim from having to make that citizens arrest, which
nine times out of time they do not desire to do. There are
other exceptions to this rule, but by making an immediate
hearing, in Anchorage, for example, that would not really
constitute a great problem, because in Anchorage, as perhaps
in Fairbanks, an arrested person is taken immediately to a
magistrate before they even go to jail. But if this were
Bethel, that would not happen. The judge would have to be
awakened if he was there. We would be asking something to
happen that could not happen, and, if I understand the
effect of the amendment, it would negate the ability to make
that arrest.
Number 194
REPRESENTATIVE NORDLUND clarified he was not meaning to
negate the ability to make the arrest. He said in a
situation like Bethel, immediate is somewhat relative, and
who is to say how immediate, immediate is, but it would be
an imposition placed within the law that would basically
mean as soon as possible. If it is impossible in a town
like Bethel to have the hearing an hour afterwards, maybe it
would have to be the next morning, but it would not be two
days later.
Number 205
CHAIRMAN PORTER stated that there is currently a requirement
that anyone who is arrested has to go to an arraignment
within 24 hours, so they wouldn't be thrown into jail for a
week.
REPRESENTATIVE NORDLUND said he did not see any reason why,
in a city like Anchorage, you should not have an immediate
hearing, and not keep a person in overnight.
CHAIRMAN PORTER said that they will do that in Anchorage.
That does not need to be written into the law. The first
place an arrested person goes is to a magistrate.
Number 224
REPRESENTATIVE NORDLUND requested that the amendment be held
over until he has a chance to draft it and bring it up at
the next hearing.
MS. LOPER noted that the bill goes to the Finance Committee
as there is a fiscal note from the Department of Corrections
for $11 thousand.
Number 262
CHAIRMAN PORTER said the committee would send a letter of
intent to Finance, asking them to consider Representative
Nordlund's amendment.
Number 288
REPRESENTATIVE JAMES noted that Representative Nordlund may
stand a better chance of getting his amendment passed in the
Finance Committee. She then moved that HB 524 be passed out
of the House Judiciary with individual recommendations, and
the attached fiscal note. Hearing no objection, the HB 524
was passed out of committee with individual recommendations.
Number 314
CSSSHB 487 (L&C) - SALE/DISPLAY OF MATERIAL HARMFUL TO
MINORS
CHAIRMAN PORTER announced the committee would consider
CSSSHB 487.
JACK PHELPS, Legislative Aide to Representative Pete Kott,
explained the principle change in the proposed committee
substitute relates to comments that developed in the
committee. The principle change to the substance of the
bill in terms of the codified part of the bill is in Section
2. That change just rolled "rental" and "display for
rental" into the bill. He said the definitions weren't
changed or anything else in the bill. The provisions of the
bill that apply to "sale" will now also apply to "rental."
The parts that apply to "display for sale," now also apply
to "display for rental."
Mr. Phelps said the other changes in the committee
substitute incorporate changes in the findings and intent
section, Section 1. Granted that findings and intent
sometimes are window dressing, when you are dealing with
issues such as this that have a direct effect on first
amendment rights and constitutional issues, they can serve a
useful purpose. Mr. Phelps stated one of the concerns
expressed by the committee was whether or not the provisions
of this bill would apply to a particular article in Reader's
Digest or the cover of Cosmopolitan. He said he tried to
address that by ruling language into the intent section that
highlights the "taken as a whole" provisions of the bill.
He referred to 2, line 2 and said the bill now reads "The
legislature intends that the definition of "material harmful
to minors" be narrowly construed, so it does not apply to
materials in general circulation that contain only
relatively brief passages, or incidental descriptions of
material harmful to minors; and the legislature intends that
the phrase taken as a whole in the definition of material
harmful to minors be applied in a broad sense so as not to
unduly restrict access to materials that have serious
literary or scientific, educational, artistic, or political
value."
MR. PHELPS said the bill deals with material deemed harmful
to minors. Essentially, using a classic obscenity
definition is not trying to deal with material that would be
inappropriate for minors. That is a distinction that would
be helpful for the committee to keep in mind.
MR. PHELPS referred to the third issue raised by the
committee as to whether or not there was a scienter
provision. He referred to page 2, line 13, where it clearly
says, "knowingly."
Number 372
CHAIRMAN PORTER understood that the clerk at the book cache
that has 500 paperbacks displayed does not have to read each
one to find out if there are any passages that fits the
categories.
MR. PHELPS said he believes that is correct.
Number 380
REPRESENTATIVE JAMES moved to adopt CSSSHB 487 (JUD).
Hearing no objection, the motion carried. She then moved to
pass CSSSHB 487 (JUD), out of committee with individual
recommendations and zero fiscal notes.
Number 392
REPRESENTATIVE GREEN objected. His concern was it may
create litigation.
Number 398
MR. PHELPS stated that it appears to be the belief of the
Department of Law, since they have moved from a fiscal note
that had "X's" in it, to a fiscal note that has a zero, that
this bill has now been carefully drafted to align itself
with a whole series of Supreme Court cases. He believes the
opportunity for litigation is minimal. That belief is
strengthened by the fact that the industry essentially has
said they do not see any serious problems with the bill as
it is currently drafted. The chance for litigation is
always there, but has been considerably minimized by the
care in crafting this according to court instructions.
Number 413
CHAIRMAN PORTER asked if there was further discussion.
There being none, he asked if there was still an objection.
Hearing no further objection, the CSSSHB 487 passed out of
the House Judiciary Committee.
CHAIRMAN PORTER adjourned the House Judiciary Committee
meeting.
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