Legislature(1993 - 1994)
04/18/1994 01:00 PM House JUD
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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
April 18, 1994
1:00 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Gail Phillips
Rep. Pete Kott
Rep. Joe Green
Rep. Cliff Davidson
MEMBERS ABSENT
Rep. Jim Nordlund
COMMITTEE CALENDAR
SB 221: "An Act relating to arrest of a person for illegal
possession, consumption or control of alcohol; and
providing for an effective date."
MOVED OUT OF COMMITTEE
HB 523: "An Act amending Alaska Rule of Criminal Procedure
6(r) relating to admissibility of hearsay evidence
by peace officers before the grand jury."
MOVED OUT OF COMMITTEE
SB 286: "An Act relating to special conditions of
mandatory parole; relating to conditions of
mandatory or discretionary parole; extending the
termination date of the Board of Parole; and
providing for an effective date."
MOVED OUT OF COMMITTEE
SB 321: "An Act relating to the taking of a legible set of
fingerprints when a person is arrested, upon
initial appearance or arraignment, upon the
conviction of the person, and when the person is
received at a correctional facility, and providing
that the set of fingerprints shall be provided to
the Department of Public Safety; relating to
criminal and crime records and information;
requiring the reporting of information concerning
homicides and suspected homicides to the
Department of Public Safety for analysis;
requiring the Department of Public Safety to
participate in the Federal Bureau of
Investigation, Violent Criminals Apprehension
Program."
MOVED OUT OF COMMITTEE
SB 24: "An Act extending the maximum period of probation
after conviction."
MOVED OUT OF COMMITTEE
SB 220: "An Act amending schedule IA of the schedules of
controlled substances applicable to offenses
relating to controlled substances to add the drug
methcathinone, commonly identified as `cat.'"
MOVED OUT OF COMMITTEE
SB 322: "An Act repealing the requirement that an oil or
gas lease sale be held during the calendar quarter
for which scheduled under the leasing program and
repealing related allowable delays for certain oil
and gas lease sales under the Alaska Land Act; and
providing for an effective date."
MOVED OUT OF COMMITTEE
SB 316: "An Act relating to commercial fishing penalties."
HEARD AND HELD
SJR 39: Proposing an amendment to the Constitution of the
State of Alaska to guarantee, in addition to the
right of the people to keep and bear arms as
approved by the voters at the time of ratification
of the state Constitution, that the individual
right to keep and bear arms shall not be denied or
infringed by the state or a political subdivision
of the state.
MOVED OUT OF COMMITTEE
WITNESS REGISTER
JOE AMBROSE
Chief of Staff
Senator Robin Taylor's Office
Alaska State Legislature
State Capitol, Room 30
Juneau, AK 99801-1182
465-3873
Position Statement: Testified on CSSB 286
MICHAEL J. STARK
Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811
465-3428
Position Statement: Testified on SB 286 and HB 523
RICH COLLUM
Parole Board
P.O. Box 112000
Juneau, AK 99811
789-9786 h./465-3384 w.
Position Statement: Testified on SB 221
DANIELLA LOPER
Committee Aid
House Judiciary Committee
Alaska State Legislature
State Capitol, Room 118
Juneau, AK 99801-1182
465-6841
Position Statement: Gave bill schedule update
PREVIOUS ACTION
BILL: SB 221
SHORT TITLE: ARREST OF MINORS FOR CONSUMING ALCOHOL
SPONSOR(S): SENATOR(S)TAYLOR,Duncan,Miller,Pearce,Kelly,
Leman,Little,Frank,Donley,Sharp,Halford,Zharoff;
REPRESENTATIVE(S) Ulmer
JRN-DATE JRN-PG ACTION
01/03/94 2451 (S) PREFILE RELEASED 1/3/94
01/10/94 2451 (S) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2451 (S) HES, JUD
01/19/94 (S) HES AT 01:30 PM BUTROVICH
ROOM 205
01/19/94 (S) MINUTE(HES)
01/24/94 (S) HES AT 01:30 PM BUTROVICH
ROOM 205
01/24/94 (S) MINUTE(HES)
01/26/94 2597 (S) HES RPT 4DP 2NR
01/26/94 2597 (S) ZERO FNS PUBLISHED (LAW,
DPS, ADM-2)
01/31/94 (S) JUD AT 01:30 PM BELTZ RM 211
02/07/94 (S) JUD AT 01:30 PM BELTZ RM 211
02/07/94 (S) MINUTE(JUD)
02/09/94 2750 (S) JUD RPT 2DP 3NR
02/09/94 2750 (S) ZERO FNS PUBLISHED (COURT,
DHSS)
02/09/94 2750 (S) PREVIOUS ZERO FNS (ADM-2,DPS,
LAW)
02/09/94 (S) RLS AT 01:00 PM FAHRENKAMP
ROOM 203
02/09/94 (S) MINUTE(RLS)
02/11/94 2786 (S) 3 RLS TO CALENDAR 1 NR 2/11/94
02/11/94 2798 (S) READ THE SECOND TIME
02/11/94 2798 (S) ADVANCED TO THIRD READING UNAN
CONSENT
02/11/94 2798 (S) READ THE THIRD TIME SB 221
02/11/94 2798 (S) COSPONSOR(S): DUNCAN, MILLER,
02/11/94 2798 (S) PEARCE, KELLY, LEMAN, LITTLE,
FRANK,
02/11/94 2798 (S) DONLEY,SHARP,HALFORD,ZHAROFF
02/11/94 2799 (S) PASSED Y19 N- E1
02/11/94 2799 (S) EFFECTIVE DATE SAME AS PASSAGE
02/11/94 2807 (S) TRANSMITTED TO (H)
02/14/94 2367 (H) READ THE FIRST TIME/REFERRAL(S)
02/14/94 2367 (H) HES, JUDICIARY
02/14/94 2389 (H) CROSS SPONSOR(S): ULMER
03/28/94 (H) HES AT 03:00 PM CAPITOL 106
03/28/94 (H) MINUTE(HES)
03/29/94 3045 (H) HES RPT 3DP 3NR 3AM
03/29/94 3045 (H) DP: BUNDE, TOOHEY, OLBERG
03/29/94 3045 (H) NR: G.DAVIS,NICHOLIA,BRICE
03/29/94 3045 (H) AM: KOTT, VEZEY, B.DAVIS
03/29/94 3046 (H) -2 PREVIOUS SEN ZERO FNS
(DPS,LAW) 1/26
03/29/94 3046 (H) -2 PREVIOUS SEN ZERO FNS
(COURT,DHSS)2/9
03/29/94 3046 (H) -2 PREVIOUS SEN ZERO FNS
(ADM) 1/26
04/18/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 523
SHORT TITLE: GRAND JURY EVIDENCE BY POLICE OFFICERS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
03/09/94 2683 (H) READ THE FIRST TIME/REFERRAL(S)
03/09/94 2683 (H) STATE AFFAIRS, JUDICIARY
03/09/94 2684 (H) -4 ZERO FISCAL NOTES
(2-ADM,DPS,LAW) 3/9
03/09/94 2684 (H) GOVERNOR'S TRANSMITTAL
LETTER
03/26/94 (H) STA AT 08:00 AM CAPITOL 102
03/26/94 (H) MINUTE(STA)
03/29/94 3044 (H) STA RPT 4DP
03/29/94 3044 (H) DP: VEZEY, KOTT, G.DAVIS,
B.DAVIS
03/29/94 3044 (H) -4 PREVIOUS ZERO FNS
(LAW,DPS,2-ADM) 3/9
04/18/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: SB 286
SHORT TITLE: CONDITIONS OF PAROLE; EXTEND BD OF PAROLE
SPONSOR(S): LABOR & COMMERCE
JRN-DATE JRN-PG ACTION
02/09/94 2753 (S) READ THE FIRST TIME/REFERRAL(S)
02/09/94 2754 (S) L&C, JUD
02/15/94 (S) L&C AT 01:30 PM FAHRENKAMP
ROOM 203
02/15/94 (S) MINUTE(L&C)
02/18/94 2886 (S) L&C RPT 2DP 2NR
02/18/94 2886 (S) ZERO FISCAL NOTE PUBLISHED
(CORR)
03/02/94 (S) JUD AT 01:30 PM BELTZ ROOM
03/02/94 (S) MINUTE(JUD)
03/10/94 3146 (S) JUD RPT CS 3DP NEW TITLE
03/10/94 3147 (S) PREVIOUS ZERO FN APPLIES
(CORR)
03/10/94 (S) RLS AT 00:00 AM FAHRENKAMP
ROOM 203
03/10/94 (S) MINUTE(RLS)
03/18/94 (S) RLS AT 00:00 AM FAHRENKAMP
ROOM 203
03/18/94 (S) MINUTE(RLS)
03/25/94 3372 (S) RULES RPT CS & CAL 2DP 1NR
NEW TITLE
03/28/94 3373 (S) PREVIOUS ZERO FN APPLIES
(CORR)
03/28/94 3374 (S) READ THE SECOND TIME
03/28/94 3374 (S) RLS CS ADOPTED UNAN CONSENT
03/28/94 3374 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/28/94 3374 (S) READ THE THIRD TIME CSSB
286(RLS)
03/28/94 3375 (S) PASSED Y13 N6 E1
03/28/94 3375 (S) EFFECTIVE DATE PASSED Y19
N- E1
03/28/94 3375 (S) Adams NOTICE OF RECONSID
03/30/94 3413 (S) RECON TAKEN UP - IN THIRD
READING
03/30/94 3414 (S) RETURN TO SECOND FOR AM 1 UNAN
CONSENT
03/30/94 3414 (S) AM NO 1 MOVED BY LINCOLN
03/30/94 3414 (S) AM NO 1 ADOPTED Y15 N3 E2
03/30/94 3414 (S) AUTOMATICALLY IN THIRD READING
03/30/94 3415 (S) PASSED ON RECONSIDERATION Y18
N- E2
03/30/94 3415 (S) EFFECTIVE DATE SAME AS PASSAGE
03/30/94 3415 (S) TRANSMITTED TO (H)
03/31/94 3102 (H) READ THE FIRST TIME/REFERRAL(S)
03/31/94 3102 (H) JUDICIARY
04/18/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: SB 321
SHORT TITLE: FINGERPRINTING AND CRIME RECORDS
SPONSOR(S): SENATOR(S) HALFORD,Phillips,Kerttula,Taylor,
Pearce,Donley,Leman,Little,Miller,Sharp
JRN-DATE JRN-PG ACTION
02/14/94 2832 (S) READ THE FIRST TIME/REFERRAL(S)
02/14/94 2832 (S) JUD, FIN
03/02/94 (S) JUD AT 01:30 PM BELTZ ROOM
03/02/94 (S) MINUTE(JUD)
03/07/94 3087 (S) JUD RPT CS 4DP NEW TITLE
03/07/94 3088 (S) ZERO FNS TO SB & CS PUBLISHED
(DPS-2)
03/15/94 (S) FIN AT 08:30 AM SENATE FINANCE
03/15/94 (S) MINUTE(FIN)
03/16/94 3240 (S) FIN RPT CS 5DP 1NR
NEW TITLE
03/16/94 3241 (S) PREVIOUS ZERO FNS APPLY
(DPS-2)
03/16/94 (S) RLS AT 00:00 AM FAHRENKAMP
ROOM 203
03/16/94 (S) MINUTE(RLS)
03/16/94 (S) FIN AT 09:00 AM SENATE FINANCE
03/21/94 3293 (S) ZERO FISCAL NOTE PUBLISHED
(CORR)
03/22/94 3317 (S) RULES TO CALENDAR 4CAL 1NR
3/22/94
03/22/94 3319 (S) READ THE SECOND TIME
03/22/94 3320 (S) COSPONSOR(S): KERTTULA, TAYLOR,
PEARCE,
03/22/94 3320 (S) DONLEY, LEMAN, LITTLE, MILLER,
SHARP
03/22/94 3320 (S) FIN CS ADOPTED UNAN CONSENT
03/22/94 3320 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/22/94 3320 (S) READ THE THIRD TIME CSSB
321(FIN)
03/22/94 3321 (S) PASSED Y20 N-
03/22/94 3324 (S) TRANSMITTED TO (H)
03/23/94 2924 (H) READ THE FIRST TIME/REFERRAL(S)
03/23/94 2924 (H) FINANCE
03/25/94 2980 (H) FIN REFERRAL WAIVED
03/25/94 2980 (H) JUD REFERRAL ADDED
03/28/94 (H) JUD AT 01:00 PM CAPITOL 120
04/08/94 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 94-61, SIDE A
Number 000
The House Judiciary Standing Committee was called to order
at 1:20 p.m. on April 18, 1994. A quorum was present.
CHAIRMAN PORTER announced that the committee would take up
SB 221 first, followed by HB 523, SB 286, SB 321, SB 24, SB
220, SB 322, HB 316, and then HCSSJR 39.
CHAIRMAN PORTER welcomed JOE AMBROSE from SENATOR TAYLOR's
office to begin discussion of SB 221.
SB 221 - ARREST OF MINORS FOR CONSUMING ALCOHOL
Number 042
JOE AMBROSE, Chief of Staff to Senator Robin Taylor,
described SB 221 and said Senator Taylor was the prime
sponsor of the bill. The bill was introduced this bill at
the request of concerned parents, law enforcement agencies
in the first judicial district, and Alaskans for drug free
youth. In May of last year state troopers and municipal
police departments were directed not to arrest minors under
the influence of alcohol (minor consuming statute) unless
the arresting officer actually saw the minor consume the
alcohol. The directive was issued after two judicial
officers ruled that merely being under the influence in the
officers' presence was not enough to make an arrest. The
District Attorney's directive stated, "Officers who
encounter minors under the influence should issue citations
rather than make arrests." The court ruling left law
enforcement officers in the position of either leaving such
a minor on the street, or taking the minor into protective
custody. Past practice had been to arrest the minor and
turn the youth over to parents or legal guardians. He SB
221 would add minor consuming to the list of crimes that
allow for warrantless arrests. While the court ruling
currently impacts only the first judicial district, it could
be extended to other jurisdictions. Senator Taylor's goal
in sponsoring the bill was not to increase the number of
arrests for minor consuming; but he does not believe the
legislature ever intended for a police officer to simply
write a ticket and walk away from a minor who is under the
influence. The bill is more about protecting young people
than prosecuting them.
Number 090
REPRESENTATIVE GAIL PHILLIPS asked how in the world the
district attorney could justify a ruling when there is
already a law in the book that says it is illegal for
someone under the age of 21 to consume alcohol. She
expressed absolute amazement.
Number 100
CHAIRMAN PORTER stated that the district attorney has to
follow the policy of the court, and the court, whether you
agree with it or not, is a distinctly different body of
government, and they have the ability to make decisions
based upon their interpretation of the law.
Number 106
REP. PHILLIPS asked how they could refute an existing law
that says it is illegal if you are under 21.
Number 109
CHAIRMAN PORTER replied that he would not be the one to try
to explain the logic of that court decision. That is why he
would be in support of the bill.
REP. PHILLIPS asked if the law applied to just the first
judicial district or if it included everybody.
CHAIRMAN PORTER answered that yes, it was intended to
include everybody. He thought the first judicial district
was the only district that had made this interpretation. He
said the bill would not change the application of the law in
any other jurisdiction he knew of, except the first, where
it is needed.
Number 123
MR. AMBROSE pointed out that the officers do have the option
of protective custody, which is an expensive proposition at
the local level, because you have to take them to a
hospital, and then you've got to figure out what you are
going to do with them next. Some communities do not have
available facilities and the minors often end up riding
around in a police car for the rest of the night,
effectively taking that officer out of duty.
Number 130
CHAIRMAN PORTER said the other option is a citation and
release, in which case you have an intoxicated kid on the
street, which does not do a lot of good.
Number 137
REPRESENTATIVE JEANNETTE JAMES responded, stating that
absolutely getting them off of the street is the thing to
do, and she thinks we have jumped over the fence to being
more concerned, now that we have had many of our teenagers
killed in traffic accidents, and so forth. Previously, it
was like, "Oh he was just a little kid that had a little
flight that night. Let us just take him back to his
parents, because then that way it could all be hush hushed,
and so forth." That idea is gone forever because alcohol
and drugs are the two biggest causes for all of our crime,
and all of our accidents, all of the problems that we suffer
in the state. Rep. James said she thought that the attitude
seems to be switching, and hopefully the court will catch
up.
Number 163
MR. AMBROSE stated that the sad thing is, in Juneau, after
this ruling, kids were actually taunting police officers on
the street because they knew that the policemen could not do
anything more than write them a ticket.
Number 167
CHAIRMAN PORTER asked if there were any other questions to
be asked of Mr. Ambrose. There were not, nor were there any
more people wishing to give testimony on SB 221.
Number 172
REP. JAMES moved to move the bill out with individual
recommendations and the attached fiscal note.
CHAIRMAN PORTER stated that, with no objection, SB 221 was
moved. He then welcomed Michael Stark from the Department
of Law, inviting him to testify on HB 523.
HB 523 - GRAND JURY EVIDENCE BY POLICE OFFICERS
Number 180
MIKE J. STARK, Assistant Attorney General, Criminal
Division, Department of Law, testified on HB 523. He said
this is not his normal area of expertise, but he was filling
in for Dean Guaneli and Margot Knuth, who were both out of
town. He summarized from a statement that Margot prepared,
describing the bill. He said HB 523 amends criminal rule 6r
to create a narrow exception to the rule that in a grand
jury, one witness cannot testify about what another witness
heard or said. This exception would allow one peace
officer, such as an Alaska State Trooper or a police
officer, to tell the grand jury what another peace officer
heard, said, or did, in the course of a criminal
investigation. It is a very narrow exception, because it
applies only to peace officers who testify to what their
fellow officers saw or heard; e.g., as to the contents
of their fellow officers' police reports. Under this bill
the grand jury would continue to retain the authority to
request the other police officer to testify in person if
there is some uncertainty about the facts in the minds of
the grand jury. The existing rule is very expensive and
does nothing to protect the constitutional rights of Alaskan
citizens. All it does is pull dozens of police officers and
troopers off of patrol every month to wait in the district
attorney's office for their turn to testify about something
that one officer could do just as well. He added that the
rule this bill would amend, if amended, would be similar to
the federal system, which does allow one police officer to
testify as to what other police officers saw or heard. Mr.
Stark stated he was available for any questions.
Number 210
CHAIRMAN PORTER informed the committee that there was a time
when a police officer could go to the grand jury and testify
to everything, whether it was another police officer's
observations, or a witness's observation -- anybody's
hearsay. Those were more crooked days, but since then, we
have gone the other way, and now we are trying to get back
in the middle. Chairman Porter thought this was a pretty
reasonable approach.
Number 225
REP. JAMES moved to move out HB 523 with individual
recommendations and the zero fiscal note.
Number 230
CHAIRMAN PORTER called for a vote after REP. NORDLUND
objected to the motion. A vote was taken and the bill was
moved out with a 5 - 1 majority. Reps. Kott, Phillips,
Green, Porter and James voted yes; Rep. Davidson voted no;
and Rep. Nordlund was absent.
CHAIRMAN PORTER then introduced RICH COLLUM from the Parole
Board to explain SB 286, and also noted that MIKE STARK was
present if it was necessary to ask questions of the
Department of Law.
Number 274
RICH COLLUM, Parole Board, said that it was not too long ago
that he was before Chairman Porter testifying in favor of
House Bill 418 to extend the Parole Board for four years.
He said SB 286 began in the Senate with that same provision
and had a couple of major sections added. Although the
sections are fairly lengthy, what they do is simply take
things that the board has done over the last 30 years, that
are included in the AAC's (Alaska Administrative Code), and
now includes them in statute.
MR. COLLUM explained that the first major addition is the
ability for a single board member to set conditions of
parole on mandatory parolees. He said, if we were to have
to use all five board members to set conditions on mandatory
court parolees, we would have to ask for an increase in our
budget and it would take a great deal of our time in order
to do that. We have been using a single board member over
the last thirty years. It has been in the Alaska
Administrative Code and it has worked very well. He said
the other section with major change is that it has taken the
regular standard conditions that we have used again,
probably over the last thirty years, and that are outlined
in the Alaska Administrative Code, and moved them into the
Alaska Statutes. Mr. Collum stated that he, or Mike Stark
from the Department of Law, would be willing to answer legal
questions about either of these section changes, and stated
that the Parole Board certainly does support SB 286.
CHAIRMAN PORTER asked Mr. Collum about the individual Parole
Board members holding hearings and making determinations,
and the previously mentioned administrative procedures act
that, in effect, causes a member to become a hearing
officer.
Number 338
MR. STARK answered that they do not hold an in-person
hearing when they are setting conditions on mandatory
parolees, and explained that what they are trying to avoid
is have an in-person hearing. The institutional parole
officer sends in a packet of information to the office. One
Board Member reviews that information, including the pre-
sentence report, and then sets conditions. That is in the
case of mandatory parolees. In the case of discretionary
parolees, the in-person hearings, the five board members are
present before anybody is released on discretionary parole,
and all five board members set the conditions.
REP. PHILLIPS asked if the mandatory parole method of
handling these cases was pretty consistent with other
states.
MR. STARK guessed that it was consistent, but stated that he
could not answer that authoritatively. He said most states
that have any type of parole system have some type of
mandatory parole where prisoners are supervised for the
amount of good time they earn. In our state it is one-
third; in some states it is a great deal more. Some have
half, and some have even more than that.
CHAIRMAN PORTER asked if there were any others wishing to
testify on SB 286.
MR. STARK explained what a mandatory parolee is: when a
person is sentenced to incarceration for a crime, they are
awarded good time, as long as they behave themselves while
they are incarcerated. Those who do not get into any
trouble, earn one-third off of their sentence, so they serve
two- thirds and have one-third off. That one-third is then
served on mandatory parole. They are released from custody,
but they are supervised by a parole officer, and by the
parole board who sets conditions for their behavior while
they are under supervision. This is where we would like one
board member to be allowed to set conditions of parole. If
the parolee is unhappy with the conditions the board member
sets, the parolee can always appeal to the whole board, and
then the whole board would review the case and make a
decision. He said he was talking about the initial setting
of those conditions. The reason this is so important is
when this statute was adopted in 1986, we were not aware
that there was a little technical loophole in the statutes
which requires all orders of the decisions by the board to
be conducted by a quorum of the board. The board has always
historically done this through one board member. The
statutes do not seem to allow for that. There is now a
number of law suits by parolees who got out on parole and
then, for violating their conditions, are back in jail and
are now saying, "Hold on, court, these conditions were not
validly set, because only one board member was involved in
the setting of these conditions." The bill will make this
allowance retroactive back to the time the statute was first
adopted so these law suits will go away, and these people
will do their time like they are supposed to.
REP. CLIFF DAVIDSON asked Mr. Stark how many of these
lawsuits fall into this category.
MR. STARK answered that there were about four or five of
them pending, but he could say that from having represented
the Department of Corrections, Parole Board for many years,
there is a copy cat effect, and he expects to see many, many
more cases just like this, unless this bill is adopted.
REP. PHILLIPS asked Mr. Stark if we were likely to get into
trouble with the ACLU (Alaska Civil Liberties Union) on the
retroactive effective date.
Number 380
MR. STARK answered that he did not think so, because we are
not talking about the conditions themselves that were set,
just how they were set. We are talking about one board
member versus a quorum of the board, which would be three
members. He felt sure that they would be challenged, as
inmates love to litigate, but he did not think there was any
constitutional problem with it.
Number 385
CHAIRMAN PORTER asked if there were further questions.
Number 388
REP. PETE KOTT asked about page 3, line 21, where it talks
about what the circumstances might be prohibiting a prisoner
released on parole from possessing a defensive weapon, or a
deadly weapon, other than an ordinary pocket knife, with a
blade three inches or less in length. He asked if this
meant that a person would not be able to carry a hunting or
fishing knife, and if we were restricting their movement in
that area, or if there would be a provision for an allowance
and an exception.
Number 400
MR. AMBROSE answered that the conditions Rep. Kott was
referring to on page 3 are those that are discretionary on
the part of the board. He said they set those conditions on
most people, but were particularly concerned to make sure
that these were discretionary rather than mandatory, because
so many people are involved in commercial fishing, and that
sort of thing, possibly hunting. So, in the particular case
of a fisherman, the parole officer tells the individual to
keep knives, and dangerous weapons, so to speak, on the
boat. The parolee cannot carry them off of the boat to
carry, or take home when they are not in the process of
working. That is why it is set out as a discretionary
condition rather than a mandatory one.
REP. JAMES said that he was thinking of the person who might
just be setting out for the weekend on a hunting or fishing
trip, from a private standpoint, not a commercial fisherman,
but a sports fisherman.
MR. AMBROSE answered that they would have to talk to their
parole officer, but he did not believe the parolee would be
given permission to have a knife. He thought the parole
officer would probably argue that a knife within the
regulations would be sufficient to clean the fish.
Number 430
REP. JAMES said that she reread the language that says,
"...may require the member of the Board, acting for the
Board, may require as a condition of mandatory parole these
things." It says that they may require that they not
possess these things. It is really difficult when we
visualize what we are doing on a specific bill, when we look
at cases and peoples and places, and so forth, where there
might be some rural resident, as an example, for whom
hunting is a part of their lifestyle, and she said she would
think that providing for the difference of the kind of case
they had, and so forth, there might be an allowance where
the person may be allowed to go hunting.
MR. AMBROSE agreed with Rep. James, and said that there are
cases where they would not give a parolee a knife, cases
where they had been assaultive with a knife.
Number 430
REP. JAMES demonstrated trust in the Parole Board members to
make these discretionary conditions, so as not to set people
up for defeat. She then motioned to move SB 286.
Number 450
CHAIRMAN PORTER announced the bill was moved, after no
further discussion was desired.
CHAIRMAN PORTER then went on to take up the four bills that
were heard previously, beginning with SB 321. He briefly
explained that SB 321 had all of the fingerprint provisions
of the bill previously passed out of the Judiciary
Committee. The bill also adopts the VICAP (Violent Crimes
Apprehension Program), allowing the Department of Public
Safety to view open homicide cases within the state, and to
participate in the national program to see if our cases have
any tie-in with any existing outside cases, which would
indicate a serial killer. It would be very helpful just to
be in the program.
REP. PHILLIPS motioned to move the bill with individual
recommendations and zero fiscal notes.
Number 497
CHAIRMAN PORTER moved SB 321 with no objection.
SB 24 - Extend Maximum Period of Probation
CHAIRMAN PORTER said that he, REP. JAMES and REP. PHILLIPS
heard SB 24 already. He explained that the bill asks that
the allowable time for probation be extended from five years
to ten years. He asked if there was any discussion among
the committee members who did not hear the bill previously.
Number 510
REP. PHILLIPS wanted to note for the record that this change
was recommended by the Sentencing Commission, and that there
was no negative testimony when the bill was previously
heard.
Number 520
REP. JAMES moved to move SB 24 out with zero fiscal notes
and individual recommendations.
REP. CLIFF DAVIDSON asked how they could explain a zero
fiscal note while engaging the resources of the state for
another five years.
Number 540
CHAIRMAN PORTER explained that this question had come up in
the previous hearing, and noted the extension would not take
effect for five years. So for the next five years, as
called for on the regular fiscal note, there is no fiscal
impact. What is hoped for, and he saw no reason why this
hope should not come into play, but the balancing off of the
courts having a little more discretion in how long to lay in
probation for, might actually decrease the amount of time
given in the first place, so the amount of probation
occurring from five to ten years would hopefully be more
than offset by reduced sentencing in the first place.
Having the ability to place someone on probation for a
longer period of time might somewhat reduce the amount of
sentencing they received in the first place. It costs less
to keep a person on probation than to reincarcerate them
again. He then asked if there was further discussion on SB
24.
Number 560
REP. PHILLIPS made motion to move SB 24 with individual
recommendations and zero fiscal notes. The bill was moved.
SB 220 - ADD "CAT" TO SCHEDULE IA DRUG LIST
Number 565
CHAIRMAN PORTER introduced SB 220, explaining that the bill
would add a synthetic drug, presently being abused, to our
list of schedule 1A, controlled substances. He asked if
there was any discussion on this bill. He noted that our
label says "2A" but it is supposed to read "1A."
REP. JAMES made the same statement that she had made on
Saturday regarding this bill. She wished there was some
language put into the statutes making all such drugs illegal
when they are dreamed up, instead of the legislature having
to come back and put each one on the list individually. She
thought they should still be looking for some wording as to
the purpose or affects of the drug or something. It seems
that as soon as a drug is added to the list, somebody comes
up with a new drug, and she would like to see that stop.
Number 590
CHAIRMAN PORTER could not disagree with that, and thought
there was a law passed stating that if the federal drug list
was updated, that ours was automatically updated. He said,
while we do not have the lag time we used to have, we still
have a little bit of lag time in these kinds of drugs
getting up here to Alaska.
Number 600
REP. PHILLIPS said that in looking through the bill pack, it
appeared that the bill [drug] did make it's debut in Hawaii
in 1989 and has been moving around the country since that
time. She said this is a preventative measure bill. She
asked if we have had instances of law enforcement officers
actually finding it ["cat"] being utilized in Alaska.
CHAIRMAN PORTER said he believed the testimony to have been
that we have not had any known use of this substance in
Alaska. It does not mean that it is not here, we just have
not heard about it yet. So we may actually be taking a
preemptory strike here, rather than a reactive strike.
Number 620
REP. GREEN asked if we are presently checking for
methcathinone on arrests on people who are acting weird. He
asked if there is equipment to check for this, seeing a zero
fiscal note. He thought there must be some sort of test
they do.
Number 625
CHAIRMAN PORTER said they probably would not be testing for
consumption, they would be testing the item itself if it
were found on the person. The Alaska Forensics Lab has the
ability to test for any chemical.
Number 627
REP. PHILLIPS pointed out that the second page of the fiscal
note from the Department of Law addresses that they do not
expect a significant new case load upon the approval of this
bill. Although an additional case load is not expected,
including the "cat" schedule is important because of danger
to users in the public.
Number 637
CHAIRMAN PORTER noted that, remarkably, there are many
people who are very knowledgeable about what is and what is
not against the law in that area, and are guided thereby.
Number 640
REP. JAMES made amotion to move SB 220 with individual
recommendations and a zero fiscal note. The bill was moved.
SB 322 - DELAYS OF OIL AND GAS LEASE SALES
Number 650
CHAIRMAN PORTER reminded the committee that this was the
elimination of the 90 day rule for the lease sale. He asked
if the committee members had any questions about this bill.
Number 655
REP. GREEN recommended moving SB 322 out of the committee
with individual recommendations and zero fiscal notes.
Number 662
REP. PHILLIPS asked what the companion bill number to SB 322
was. Nobody knew for certain right off.
Number 670
The bill was moved.
SB 316 - FISHING VIOLATIONS
Number 675
CHAIRMAN PORTER announced that the next bill for
consideration was SB 316. He said that this was a bill that
had extensive testimony here in Juneau and on
teleconference. He believed it was fair to say that the
commercial fishing permit holders around the state thought,
perhaps this was not the best bill in the world. He noted
that the sponsor of the bill was Senator Halford, whose aide
was present and able to answer questions about it.
CHAIRMAN PORTER asked what the wish of the committee on CSSB
316 was.
Number 685
REP. DAVIDSON and REP. JAMES both wished to keep the bill in
committee for a little while.
REP. KOTT made the motion to move the CS for SB 316, and
Rep. James objected.
CHAIRMAN PORTER asked if there was discussion.
Number 693
REP. JAMES stated she did not have as big a problem with it
in theory as she did in practice. She felt like it was
trying to create a solution in the wrong way, and she felt
like many, many more people would be hurt than would gain
from this effort. Short of rewriting this bill, and getting
it another substitute, which we have the right to do, though
we are running out of time, she would like to see the
department come up with some better solutions by regulation
or by the existing law, rather than to pass this bill which
she felt would hurt a lot of people.
Number 704
REP. PHILLIPS said she believed that the testimony taken
from the people the other day showed clearly what the people
felt about this bill. One thing came up in the testimony
that she thought could be fixed. She said she had offered a
judiciary letter of intent, asking the Department of Fish
and Game and the Department of Public Safety to research the
issue of an actual physical line; the placement of an actual
buoy line. She had talked with several commercial fishermen
and several other people involved in this fishery to see if
it would be possible, and the answer was yes, it would be
possible. She said she did talk with people in the
Department of Public Safety. It is something that they have
had under consideration. Then, if there was an actual
physical line, rather than a line that could be so
misrepresented by the difference in technical equipment
(LORAN) that people have, she thought there would be a far
better leg to stand on before any kind of increase in fines
was instituted.
CHAIRMAN PORTER said he certainly would support that letter
of intent. In his discussions after the bill was heard, it
would appear that it is the Department of Fish and Game that
actually has to adjust their regulations so as to put out
the physical line, in place of the LORAN line. But by an
enforcement standpoint, to him, it seemed that the LORAN's
variation, which is establishable in court, is 600 feet or
so; so you could not get a conviction. You could
negligently cross the line, but guilt beyond reasonable
doubt would need to be proven, so a conviction could not be
the result of crossing that 600 foot line. He said, if the
tide moved the physical line 40 feet, who cares? Rep.
Porter said he did not understand why the Department of Fish
and Game was not already doing this.
Number 732
REP. DAVIDSON gave an analogy, saying that in the great
resource battle scheme of things, it appears that this bill
is one in which general law completely bashes private
industry and undermines the general economic well being of
lots of people in other areas of the state. It seemed to
him that if they were going to make specific law and apply
it generally, this is not the best way to go. This will
create more problems than it solves. He said, it would
appear that if we are not going to be committed to spending
more on enforcement, as well as resource management, we
should at least, before we move forward with haste, be fair
to fishers in other areas. He said he knows there is a
problem where this law is trying to correct an eager
fisherman and even people who are cheating as they take from
the resource bank of the fisheries, but he thinks this bill
goes too far and is, in fact, unfair in many respects;
because, although he is not a fisherman, he knows it is
sometimes difficult to be specific out on the fishing
grounds. He believes this bill needs more work, but said he
could appreciate the intent of the bill.
Number 756
REP. JAMES responded to Rep. Phillips' concerns in her
letter of intent. With the letter of intent, she did not
think they needed the bill. That was her concern about it.
She thought they could handle this if they were to take it
on responsibly and solve this problem. She said she will
not sit there and say that she wants fishermen to get over
the line, taking fish they are not entitled to, and all
those other kinds of things. She just thought that if you
make the rules so they are easy enough to follow, and then
you have the "fish cops" out there to do this, and if the
line is very visible, it should not be difficult for them to
get a conviction.
REP. JAMES said there is more to this bill than that. The
additional consequences for failure to adhere to the rules
is much, much more, and it is a guilty until proven innocent
proviso, and she thought that was another thing that seemed
to be totally against due process, particularly when the
line is so invisible. She said if they were over the line
and then forced to prove that they were not, or prove that
they had a reason to be there, or it was an accident, or was
not meant to be there, it is a difficult situation. They
are replying to something that really needs to be addressed,
and Fish and Game can really address it, and we should give
them an opportunity. If they do not address it, then next
year, maybe we should come back with such a bill, but she
thought the timing is wrong for this right now. It has
served it's purpose; everybody has been heard, and the
problem should be solvable without this legislation.
Number 780
CHAIRMAN PORTER stated that he did not have the concern
expressed in quite a bit of the testimony, that someone in
another fishery, where the gross take might be $6,000, would
be fined for a violation up to this maximum of $6,000. If
this happened in Southeast somewhere he thought the
magistrates and the district court judges who hear these
cases would apply appropriate levels of fines. Moving the
maximum fine up to $6 - $12,000 would only be applied in
those fisheries in which that level of fine was significant.
One set can bring in a whole bunch of bucks, as opposed to
one month's worth of fishing, not bringing in hardly any.
The thing that concerns Rep. Porter is the forfeiture of the
permit for a second violation, and you can be found guilty
of the violation for a nonintentional act. That is kind of
tough, he said, especially when we have decided that the
method they use to determine how it is you are going to be
found negligent leaves quite a bit to be desired.
Number 800
REP. JAMES compared this to the timber industry. She said
if you cross the line and cut trees you are not supposed to
cut, it does not make any difference if you did it
accidentally or not. You did it, and you have to pay three
times the value of the timber that you benefitted from. She
said she did not know why they could not dream up something
for fishing that would be the same thing, and then that way,
it would always be applied fairly, and this does not. Rep.
James said if she were a fisherman and there was the
possibility of a $6,000 or $12,000 fine, and that may be
more than she would ever make in a season, she would feel
uncomfortable having that law in the book.
Number 810
CHAIRMAN PORTER said that the one difference between the
fisheries and the timber industry is that you have a big
green "X" on that tree, and that tree is not going to move,
but it is tough to mark those fish.
REP. JAMES replied that the point had been made. That is
the point. Are they taking fish illegally? Or are they
not? And there has to be a sufficient amount of marking to
indicate that for sure they are over the line, or they are
not.
CHAIRMAN PORTER said he understood. He asked if there was
any further discussion or any objection to moving the bill.
REP. JAMES objected to moving the bill.
A roll call vote was taken and SB 316 was voted down 5 - 1.
Reps. Phillips, Davidson, Green, Porter and James voted no.
Rep. Kott had the only yes vote. Rep. Nordlund was absent.
It was asked of Chairman Porter what he decided to do with
SB 252.
DANIELLA LOPER said SB 252 would be heard on Wednesday.
CHAIRMAN PORTER explained that the number one witness who
wanted to testify on SB 252 was not available.
SJR 39 - RIGHT TO KEEP AND BEAR ARMS
HOUSE CS FOR SENATE JOINT RESOLUTION NO. 39(JUD):
Proposing amendments to the Constitution of the State of
Alaska to guarantee, in addition to the right of the people
to keep and bear arms as approved by the voters at the time
of ratification of the state Constitution, that the
individual right to keep and bear arms shall not be
unreasonably denied or infringed by the state or a political
subdivision of the state, and establishing that the expanded
right to keep and bear arms does not change the level of
judicial scrutiny applicable to the review of laws relating
to weapons.
Number 850
CHAIRMAN PORTER said that where this bill was left, they had
received an awful lot of testimony saying that they were not
in favor of the committee substitute. He offered it
himself. He explained that it basically changes two things:
it adds one word to the essence of the constitutional
amendment that we would be asking the public to adopt, and
that is the word "unreasonable" on page 13 of the draft. It
would then say that the individual right to keep and bear
arms should not be unreasonably denied or infringed by the
state or by a subdivision of the state. It would also add
in another section of the constitution if this passed, and
then passed to go to the public, the standards of review
that the Supreme Court would want to use in assessing
questions brought to them around this constitutional
amendment would be assessed at a standard that they now use,
a sliding scale standard, which is, basically, a middle
ground between a compelling interest standard and rational
basis standard. That is the essence of the CS, he said.
Number 866
REP. JAMES asked if they would keep the same type of review
that is now in use.
CHAIRMAN PORTER said, "Yes, they would."
REP. JAMES then asked if there was any way to tie that
language in, and whether that was something that, because
this is the date we passed that, they know what they are
using on that date.
TAPE 94-61, SIDE B
Number 000
CHAIRMAN PORTER gave a generalization, and passed out a
sponsor statement, saying that there are three general
standards of review the court can use when looking at how
they want to interpret constitutional amendments. The
compelling interest standard, which is, by the way, the
standard that the letter of intent that the Senate sent over
with this bill asks that we adopt and then would be asking
the Supreme Court to use, is a standard of review that
basically says the state must show a compelling interest in
passing a law if it impacts an individual right, and if,
short of a compelling interest, that law will fall. The
other end of the scale is a rational basis test which
basically says if the state can show any rational basis in
protecting the public or whatever, in passing this law, then
it will override an individual right. What the Supreme
Court now uses is called the sliding scale standard of
review, which is basically a standard of review between
these two extremes that tries to balance the interest of the
state against the interest of the individual and make a
rational decision on it. What we would be saying by Section
3 on page 2 is that we would like the Supreme Court to use
that standard in their review of this question. He
entertained a motion to adopt the CS for SJR 39(JUD).
CHAIRMAN PORTER noted that there was an objection (made by
Rep. Phillips) and asked if there was any discussion.
REP. PHILLIPS said she did not like the Judiciary Committee
CS. She did not agree that the people of Alaska would buy
into adding the word "unreasonably" or the level of judicial
scrutiny as part of our constitutional statement on the
right to bear arms. She was opposed to those amendments.
Number 075
REP. JAMES said she does not believe the people of Alaska
would agree, either, yet she supported the amendment. She
said she believes that both sides of this issue are in
agreement of the same thing, and the visualization of what
they want the rights of the people to be is the same; it is
determined then how the wording is. And she understood Rep.
Porter's concerns to be that if we say, "It shall not be
infringed by the state or by a subdivision of the state,"
and we know how our courts determine how our constitution
reads. If someone were to challenge that because of a
denial of the use of a gun, and they challenged it on a
constitutional right to bear arms that cannot be infringed
by the state or a subdivision, we could have a court
decision that says, "That's absolutely right, absolutely
everybody can carry a gun." Rep. James said she has a
problem with that in the fact that there are a lot of people
we do not want to have guns. She said people have tried to
convince her that is not the case, and she kind of agrees
with them, but that is not the case. That will never
happen. However, knowing how word for word our courts, and
not having a lot of faith in them either, how they determine
the language in the constitutional law leads me to believe
that might be the case, and the other reason for being
persuaded is that the "unreasonably" that is used under
searches and seizures has been doing us fine; and so she
thinks that "unreasonable" in this might do us fine as well.
So, for that reason, she supported the CS.
Number 129
CHAIRMAN PORTER discussed the bill some more. He said he
believed that Rep. James was correct. It was his perception
that there is no opposition to this bill, in terms of the
stated intent, or it's adoption. What there is a difference
of opinion on is the effect of the wording of the bill.
While he understands the point of view that says if you put
"unreasonable" in here, it gives the court the opportunity
to do just the opposite, be totally unreasonable about the
level to which they would confiscate weapons. He said he
has had a lot of experience dealing with the law, and
therefore does not have that concern. It is not, by any
stretch of the imagination, going to happen in our lifetime,
unless the country falls. They would not waive a 4th
amendment, which does have the word "unreasonable" in it.
He said, you can imagine all of the interpretations that
have gone through the courts upholding the individual's
right to be protected in their own house against
unreasonable searches and seizures. No one is going to walk
into a house and obtain your guns or anything else, just
because of the provision that has the word "unreasonable" in
it.
CHAIRMAN PORTER said, we have had, though, in this state, a
couple of decisions that caused him the concern he did have.
The Raven case and the Glass case that were briefly touched
on. The Raven case was the infamous marijuana case that we
bring up quite a bit, where the Supreme Court took the
state's right to privacy, which is an additional irritant,
if you will, to this discussion, because our state has a
right to privacy, many other states do not have the right to
privacy in their constitution. It is one of those
unqualified statements in our constitution like the proposed
Senate bill that each individual has the right to privacy.
But what does that mean? Is it an absolute right? Well,
they came darn close to saying that when the Supreme Court
said you can possess marijuana, a federally prohibited
contraband item. We do not care about federal Law. You can
have marijuana in your home, because of our constitutional
right to privacy. What would preclude them from saying, "In
your home, a felon could possess a firearm? We do not care
if it is against the law, federally. This is a statement of
absolute. The individual right to keep and bear arms shall
not be denied." That is what the Senate version of this
bill says. That is his concern. That is his rationale for
this amendment.
Additionally, CHAIRMAN PORTER said, the Senate does not want
the Supreme Court to use the rational basis or the sliding
scale, but wants the court to use the compelling interest
standard to review that question, which would, in his mind,
give it even more likelihood that we would have one of these
unfavorable situations.
CHAIRMAN PORTER then asked if there was any further
discussion.
REP. PHILLIPS stated that today they addressed two bills
that dealt with the courts, which, in her mind, made totally
unreasonable rulings. One, in violation of the law we have
in the books, says that if you are under 21, it is against
the law to consume alcohol, and yet a district court
official sent down a ruling that said the policeman had to
actually see the kid under 21 in possession of the alcohol,
or drinking it, before they can be arrested. What a bunch
of poppycock, she said. Then the other one we had was on
the oil lease, where just very recently, we had a judge send
down, in her mind, a very unreasonable ruling on a state law
that we have in existence on oil leases. She did not
believe it would be good to give the courts any more
flexibility, especially for something as precious as this
amendment to our constitution. She did not agree with the
word "unreasonable" in there a bit.
REP. DAVIDSON stated that he can appreciate each point of
view, but he does not have the same misgivings about our
court system. He said he knows they have a very difficult
task and he has not studied law to the extent most people
have within the system, so he does not hold the same strong
views, but if the forefathers really intended that clause to
apply to the individual instead of "people," he thought they
would have said "individual" right to keep and bear arms.
He thought the CS would strike a happy balance, or a
reasonable balance, and that is why he thought to go forward
without the CS might end up in a situation where some of
those areas that you suggested we may not want to be in.
Rather than doing nothing, he thought they should go forward
with something, and so that was why he supported the CS.
CHAIRMAN PORTER said that the one thing he did not want
anybody to misunderstand is that this CS provides the
individual right to keep and bear arms. He guessed it to be
debatable, but we had testimony and he believe that, absent
another court decision or statute or constitutional
amendment, the law of the land in this state right now is an
old attorney general's opinion that said there is no
individual right to keep and bear arms in this state; it is
a collective right of a militia. So if it is ultimately
passed out of this body and voted on by the public,
favorably, we are establishing a right that does not now
exist in this state to individually keep and bear arms. The
only thing he was asking is that it be made reasonable, not
absolute.
REP. GREEN shared Rep. Phillips' concern about our courts.
HE said, you can add to some of those absurd decisions, some
of this reapportionment garbage they went through, but his
concern is just the opposite, that, as expressed by the
chairman, the courts could be so unreasonable as to go
absurdly around and say that this is a conflict now, this is
a more recent law, obviously the people's elected officials
want felons and everybody else to have the law. He honestly
did not believe that would happen, as he remembered back.
Rep. Green said that most of the people present would be too
young to remember this, but when they came around with gun
registration, he was concerned about what might happen. He
was not even an NRA (National Rifle Association) member
then, but he was concerned, so when he bought his son a
weapon under the registration law, he hid all the rest of
his weapons, just because he had been led to believe that
there would be confiscation. This registration gave them an
address, and it gave them the type of weapon, and he stood
by, thinking that within ten years, they would have it, and
this was 25 years ago. He still has his weapon. So he does
not think we are headed down the road for undue oppression
of the courts. "Unreasonable," he thinks, is a good word.
REP. JAMES responded, saying that she thinks they are moving
in that direction, and she thinks she is older than Rep.
Green. The reason that she thinks it has not happened is
because of the NRA lobby. They have been the ones
protecting us, and she thinks it is time for us to take some
of our own protection.
CHAIRMAN PORTER gave another reason why he does not think
this would ever happen. He said that right now there are
some suggestions that there should be involuntary searches
for firearms in certain federally funded housing projects in
Boston and in Chicago. In speaking today with an attorney
in Anchorage on another matter this came up. He is an NRA
member and an advocate of this legislation, and he agreed
that the ACLU will intercede in a heartbeat, and it will
never be upheld, based on the 4th amendment, which has
"unreasonable" in it. That is just not going to happen.
Voluntarily, maybe, but not involuntarily, he said.
After an objection, a roll call vote on the adoption of the
CS was taken. Reps. Kott and Phillips voted no; Reps.
Green, Davidson, James and Porter voted yes; and Rep.
Nordlund was absent.
REP. JAMES motioned to move the bill. CSSJR 39 was moved.
CHAIRMAN PORTER entertained the motion to adopt a House
Concurrent Resolution due to a title change in the movement
of the bill. Seeing no discussion or objection, the
resolution was adopted.
The House Judiciary Committee was adjourned at 2:30 p.m.
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