Legislature(1995 - 1996)
02/08/1995 01:05 PM 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
February 8, 1995
1:05 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
* HB 74:"An Act relating to the assault of children by adults."
PASSED OUT OF COMMITTEE
HB 25:"An Act revising Rule 16, Alaska Rules of Criminal
Procedure, relating to discovery and inspection in
criminal proceedings."
HEARD AND HELD
* HB 120:"An Act relating to public employers defending and
indemnifying public employees and former public employees
with respect to claims arising out of conduct that is
within the scope of employment."
PASSED OUT OF COMMITTEE
HB 42:"An Act relating to absentee voting, to electronic
transmission of absentee ballot applications, and to
delivery of ballots to absentee applicants by electronic
transmission, and enacting a definition of the term
'state election' for purposes of absentee voting."
PASSED OUT OF COMMITTEE
(*First public hearing)
WITNESS REGISTER
JULIE JENSEN ZARR
2606 W. 32nd
Anchorage, AK 99517
Telephone: (907) 248-2036
POSITION STATEMENT: Testified in favor of HB 74
SHAUN VIRGIL JENSEN
3550 Taiga Drive
Anchorage, AK 99515
Telephone: (907) 345-3939
POSITION STATEMENT: Testified in favor of HB 74
DEAN GUANELI, ASSISTANT ATTORNEY GENERAL
Criminal Division, Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Provided Information Supporting HB 74
MICHAEL J. CORKILL, PRESIDENT
Alaska Peace Officers Association
1979 Peger Road
Fairbanks, AK 99709
Telephone: (907) 451-5316
POSITION STATEMENT: Testified in favor of HB 120 and HB 25
CINDY STROUT, PRIVATE CRIMINAL DEFENSE ATTORNEY
360 K Street
Anchorage, AK 99501
Telephone: (907) 276-0367
POSITION STATEMENT: Testified against HB 25
RICHARD VITALE, AIDE
Representative Sean Parnell
Alaska State Legislature
State Capitol, Room 515
Juneau, AK 99801-1182
Telephone: (907) 465-2995
POSITION STATEMENT: Testified in favor of HB 25
SCOTT BRANDT-ERICHSEN, ATTORNEY
Municipality of Anchorage
632 West 6th Avenue
Anchorage, AK 99501
Telephone: (907) 343-4545
POSITION STATEMENT: Testified in favor of HB 120
DUANE UDLAND, DEPUTY CHIEF
Anchorage Police Department
4501 South Bragaw
Anchorage, AK 99507
Telephone: (907) 264-4400
POSITION STATEMENT: Testified in favor of HB 120
GAIL VOIGTLANDER, ASSISTANT ATTORNEY GENERAL
Special Litigation Section, Civil Division
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, AK 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Provided information on HB 120
KEVIN RITCHIE, DIRECTOR
Alaska Municipal League
217 Seward Street
Juneau, AK 99801
Telephone: (907) 586-1325
POSITION STATEMENT: Testified in favor of HB 120
BRAD THOMPSON, DIRECTOR
Division of Risk Management
Department of Administration
P.O. Box 110218
Juneau, AK 99811-0218
Telephone: (907) 465-5723
POSITION STATEMENT: Testified in favor of HB 120
TOM ANDERSON, AIDE
Representative Terry Martin
Alaska State Legislature
State Capitol, Room 502
Juneau, AK 99801-1182
Telephone: (907) 465-3783
POSITION STATEMENT: Testified in favor of CSHB 42
DAVID KOIVUNIEMI, ACTING DIRECTOR
Division of Elections
Office of the Lieutenant Governor
P.O. Box 110017
Juneau, AK 99811-0017
Telephone: (907) 465-4611
POSITION STATEMENT: Provided information on CSHB 42
PREVIOUS ACTION
BILL: HB 74
SHORT TITLE: ASSAULT BY ADULTS ON CHILDREN
SPONSOR(S): REPRESENTATIVE(S) BUNDE,Green,Toohey,Kubina
JRN-DATE JRN-PG ACTION
01/06/95 40 (H) PREFILE RELEASED
01/16/95 40 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 40 (H) STATE AFFAIRS, JUDICIARY, FINANCE
01/20/95 106 (H) COSPONSOR(S): GREEN
01/20/95 106 (H) COSPONSOR(S): TOOHEY
01/23/95 119 (H) COSPONSOR(S): KUBINA
01/25/95 136 (H) COSPONSOR(S): B.DAVIS, ROKEBERG
01/31/95 (H) STA AT 08:00 AM CAPITOL 102
01/31/95 (H) MINUTE(STA)
02/01/95 191 (H) STA RPT 7DP
02/01/95 191 (H) DP: JAMES, PORTER, GREEN, IVAN
02/01/95 191 (H) DP: ROBINSON, WILLIS, OGAN
02/01/95 192 (H) ZERO FISCAL NOTE (DOC) 2/1/95
02/01/95 192 (H) REFERRED TO JUDICIARY
02/08/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 25
SHORT TITLE: CRIMINAL DISCOVERY RULES
SPONSOR(S): REPRESENTATIVE(S) PARNELL,Porter,Green,Bunde
JRN-DATE JRN-PG ACTION
01/06/95 27 (H) PREFILE RELEASED
01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 27 (H) JUDICIARY, FINANCE
01/18/95 75 (H) COSPONSOR(S): GREEN
01/19/95 89 (H) COSPONSOR(S): BUNDE
01/27/95 (H) JUD AT 01:00 PM CAPITOL 120
01/27/95 (H) MINUTE(JUD)
01/30/95 (H) JUD AT 01:00 PM CAPITOL 120
01/30/95 (H) MINUTE(JUD)
02/01/95 (H) FIN AT 01:30 PM HOUSE FINANCE 519
02/06/95 (H) JUD AT 01:00 PM CAPITOL 120
02/06/95 (H) MINUTE(JUD)
02/08/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 120
SHORT TITLE: INDEMNIFICATION OF PUBLIC EMPLOYEES
SPONSOR(S): REPRESENTATIVE(S) PORTER,Toohey
JRN-DATE JRN-PG ACTION
01/25/95 132 (H) READ THE FIRST TIME - REFERRAL(S)
01/25/95 132 (H) JUDICIARY, FINANCE
02/08/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 42
SHORT TITLE: ABSENTEE VOTING & USE OF FAX
SPONSOR(S): REPRESENTATIVE(S) MARTIN
JRN-DATE JRN-PG ACTION
01/06/95 31 (H) PREFILE RELEASED
01/16/95 31 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 31 (H) STA, JUD, FIN
01/24/95 (H) STA AT 08:00 AM CAPITOL 102
01/24/95 (H) MINUTE(STA)
01/25/95 126 (H) STA RPT CS(STA) 4DP 2NR
01/25/95 126 (H) DP: PORTER, GREEN, ROBINSON, JAMES
01/25/95 126 (H) NR: IVAN, WILLIS
01/25/95 126 (H) FISCAL NOTE (GOV) 1/25/95
01/25/95 126 (H) REFERRED TO JUDICIARY
02/08/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-8, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:05
p.m. on Wednesday, February 8, 1995. A quorum was present.
CHAIRMAN BRIAN PORTER stated the following bills would be heard:
HB 74, HB 25, HB 120, and CSHB 42. Representative Bunde, sponsor
of HB 74, was called forward to testify on the bill.
HJUD - 02/08/95
HB 74 - ASSAULT BY ADULTS ON CHILDREN
Number 048
REPRESENTATIVE CON BUNDE briefly described the reason for the bill.
Shaun Jensen, who was present to testify, had been attacked by
three adults. The charge brought against those adults was a
misdemeanor, and there was general concern of the public that this
was inappropriate. They would like to send a much stronger
message, that a felony charge should be brought in this type of a
case. The law did not allow this to occur, and HB 74 fills that
gap by allowing prosecutors the discretion to bring a felony charge
where there is the age difference. Current law protects those who
are under the age of ten. There is a gap between 10 and 16, and
that is what this law addresses. In order to avoid unnecessary
felony charges, there is the flexibility for the prosecutor, so
they can still charge people with a misdemeanor, as they are under
the current statutes, if there are no aggravating circumstances.
If the defendant reasonably believes that the victim was 16 or
older, this provision would protect those from having an
unnecessary felony charge, and certainly would minimize the impact
on the state.
Number 115
JULIE JENSEN ZARR, AUNT OF THE VICTIM, asked the committee for
support in passing HB 74. On November 11, 1994, at 5 a.m. while
delivering the Anchorage Daily News, her 14 year old nephew was
viciously assaulted by three adult men. They beat him. He lost
two permanent teeth. He had neck trauma, and was run over by his
own snow machine. The way the law reads now, it was a misdemeanor.
She brought pictures to share, before and after the assault. She
also started a crime alert program two days after the incident, and
distributed over 900 of them on cars, all over Anchorage, by
herself. She then contacted Representative Bunde to ask for
support of a change in the law.
MS. ZARR moved to Anchorage in 1971, and grew up in south
Anchorage. Back then it was the most wonderful place to grow up.
Back then, the law, as it reads now, probably fit. There were no
drive-by shootings, assaults on kids, and other people. Anchorage
did not have these kinds of crimes in the 50s, 60s, 70s, or 80s.
As the crimes changed, so must the laws change to fit the crimes of
1995 and beyond. This assault brought to light the need to make a
difference and to try to turn a negative into a positive; teaching
her two children and nephew empowerment instead of victimization.
The change in the law will show through hard work, one person can
have a positive impact on society. The outcry of support from the
people of Anchorage has also had a healing effect on her nephew.
She brought over 1,000 signatures from the citizens of Anchorage,
and a lot more are coming in, in support of HB 74.
SEAN VIRGIL JENSEN, VICTIM OF ASSAULT BY THREE ADULTS, asked for
the committee's support on HB 74. While delivering the Anchorage
Daily News, he was repeatedly assaulted by three men. He was
thrown down, run over by his own snow machine, and this is a
misdemeanor. Something obviously needs to be changed if three men
can beat up a 14 year old kid and get off with a hand slap. He has
serious injuries he has to live with for the rest of his life,
because he has two missing permanent teeth that will never grow
back, as well as mental injuries. The men who beat him will
probably not remember this for very long, but he will. He has been
seriously injured, both physically and emotionally. This cowardly
action on the part of three adults needs to be at least a felony on
the record. He realized the passage of this bill will not help his
case. However, he will be satisfied to know that it will help
others.
DEAN GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW, said the Michie Company recently published a
book on Alaska Criminal Law. He stated after many years in the
criminal justice system, you would think the laws would cover just
about everything, and then you run across a case like this, showing
there is a loophole in unusual circumstances. This bill plugs that
loophole, and it is something that is an appropriate change. He
proposed the amendment of adding the word "intentional" before the
word "causes" on page 2, line 3. His reason for this suggestion
has to do with the effect of alcohol intoxication and how that
relates to the mental states used in Alaska Statutes. He felt the
change would still make the law usable. All assaults that are
going to occur by adults against children are certainly going to be
intentional, as most assaults are. He thought the law continued to
give prosecutors discretion to use or not to use this more serious
offense in certain cases. He did not want to suggest charging
every high school senior of 18 years old, who gets into a fight
with a freshman who is 15 years old, with a felony. In appropriate
cases, it is a tool that prosecutors ought to be able to use.
Number 265
REPRESENTATIVE CYNTHIA TOOHEY asked Mr. Guaneli about the alcohol
exclusion. If a perpetrator is smashed out of his mind, that does
not excuse the assault, does it?
Number 280
MR. GUANELI said alcohol intoxication, after reaching a certain
level, can allow someone to show that they did not form the intent
to do something, so that is an excuse. What he was referring to
is, under current law, if someone is driving intoxicated and gets
into an accident, and people in the car are injured as a result of
this accident, the driver can be charged with an assault. If the
person is killed, it is manslaughter. Unless you insert the word,
"intentionally", you end up with a situation where someone could
get in a car wreck, and if there are children injured, the driver
gets charged with a felony; if there are adults injured, the driver
gets charged with a misdemeanor. It creates the situation where
two people doing essentially the same thing get charged with widely
varying crimes. That is the reason for this suggestion which
covers all the cases we want to cover, while avoiding some
undesirable results.
Number 295
CHAIRMAN PORTER clarified this for the committee. As a practical
matter, it is a fair statement to say that, except in that
situation described, "intentional" is an element of an assault
anyway.
Number 300
REPRESENTATIVE JOE GREEN was a little concerned with Mr. Guaneli's
answer to Representative Toohey's question. If a person is at the
.2 or .3 level, or wherever it is when you lose your ability to
consciously form an intent, but you still perpetrate this act, does
that mean this will not apply, as amended?
Number 314
MR. GUANELI said if you can show that you did not intend to do what
you were doing because you were so intoxicated; intoxication is a
defense to any specific intent crime. It is a defense to kinds of
crimes that use the word "intent".
Number 320
REPRESENTATIVE GREEN was upset that if he goes out and punches
somebody out, it is a tort of intent; but if he drinks enough
first, he would be excused from that intent portion.
Number 326
MR. GUANELI explained that would be so if the crime was one using
the specific element of "intent". Most of our crimes do not.
There would still be some crimes that you would be guilty of.
Number 332
REPRESENTATIVE GREEN said people will talk about their drinking
escapades, and a moody drunk who gets belligerent, wants to go
fight. He was so wasted, he did not know he hit "Johnson" right
square in the nose. Whoa!
Number 340
MR. GUANELI replied proving you did not intend to do something like
this raises what is called "diminished capacity." It requires an
expert, a psychologist or psychiatrist, saying this person was so
drunk he was unable to form the intent to steal the property, to
drive the car, or to assault the person. That level of
intoxication, that level of proof, very rarely occurs; so it should
not make any difference in 99 percent of the cases we would
encounter.
Number 350
REPRESENTATIVE GREEN said his point was that had these three adults
been to that point, then we would not even be here talking about
this because they would have had an excuse anyway.
Number 358
CHAIRMAN PORTER explained the flip side of this is that
"intoxication" is not a defense. It is only grounds for mitigation
of sentence, unless that intoxication is at such a level that they
had the inability to form the requisite intent to do that. The
fact situation of the case we are talking about, is prima facie
evidence that that would not have been reached, because they could
not have done all of those things having been so intoxicated as to
reach this level of inability to form an intent. It is a rare
situation, and it sounds like we are creating a big loophole, but
this defense has been raised in cases Chairman Porter has handled,
and it just does not happen.
Number 375
REPRESENTATIVE TOOHEY agreed with Representative Green unless
someone has got you and is pouring drinks down you, it is your
intent to drink, and your intent to get sloshed. She asked if this
would be effective without the word "intentional".
Number 383
MR. GUANELI answered without the word "intentional" it would still
be effective, there may be rare cases that lead to divergent
results that might be unfair. Without the word "intentional" in
there, it is still going to be an effective piece of legislation.
CHAIRMAN PORTER acknowledged Representative Irene Nicholia's
presence in the meeting, and welcomed her. He then asked the wish
of the committee as regards the word "intentional".
REPRESENTATIVE TOOHEY opposed it.
REPRESENTATIVE BETTYE DAVIS asked what type of unfairness could
result from adding "intentional". She wanted to weigh that before
voting.
Number 404
MR. GUANELI felt the unfairness that could occur would be a rare
occurrence. That is where someone is driving drunk, they hit a
car, injure a child, and under the standard current version, that
would be a felony. If they drove drunk, struck a car, injuring an
adult, that would be a misdemeanor. So you would have two people
essentially doing the same conduct, which is driving a car and
striking something else; and one person is charged with a felony,
and the other person is charged with a misdemeanor. That situation
is corrected by inserting the word "intentional". What we are
talking about is a rare occurrence where, in this particular case,
the facts fit into a small loophole. We are talking about things
that rarely happen.
Number 427
CHAIRMAN PORTER asked if the prosecutor would have the ability to
charge consistently in that rare occurrence.
Number 430
MR. GUANELI said probably so.
REPRESENTATIVE GREEN, being a novice in law, asked if there would
be any way this could be done, leaving intentionally in there, and
at the end, say that alcohol consumption is not a mitigating
circumstance, or something to that effect. People have driven
across Los Angeles Basin, and they cannot even remember it. So
they were capable of negotiating for a long time.
MR. GUANELI was not certain the courts would accept that. When you
have to prove intent, there are a lot of things that can show you
did not intend to do something, and the courts have held
intoxication as one of them. We may end up reversing a long line
of court opinions. Frankly, this is such a rare occurrence, that
if you have it in there, or not, it is not a major problem.
Number 450
CHAIRMAN PORTER asked if anyone would like to offer that as an
amendment.
Number 455
REPRESENTATIVE AL VEZEY made a motion to move the amendment, adding
the word "intentionally" on line 3, page 2, between "older" and
"causes". It would then read, "...older, intentionally causes...".
There was objection to adopting the amendment.
CHAIRMAN PORTER asked for a roll call vote. Representatives
Finkelstein and Vezey voted yes. Representatives Toohey, Davis,
Bunde, Green, and Porter voted no. The amendment failed with a
five to two vote.
Number 470
REPRESENTATIVE GREEN made a motion to move HB 74 with individual
recommendations and attached fiscal notes.
There was objection so a roll call vote was taken.
Representatives Toohey, Bunde, Davis, Finkelstein, Green and Porter
voted yes. Representative Vezey voted no. The bill moved out of
committee on a 6 - 1 vote.
HJUD -02/08/95
HB 25 - CRIMINAL DISCOVERY RULES
CHAIRMAN PORTER announced the hearing on the committee substitute
for HB 25, version R, dated 2/3/95, which had not yet been adopted.
Number 510
MICHAEL J. CORKILL, PRESIDENT OF THE ALASKA PEACE OFFICER'S
ASSOCIATION, representing 1200 peace officers, chose HB 25 as a
high priority piece of legislation. He felt the bill would enhance
the truth seeking process of criminal trials across the state.
Number 530
CINDY STROUT, PRIVATE PRACTICE ATTORNEY IN CRIMINAL DEFENSE, was
against many of the revisions suggested in HB 25. As far as the
opt in provisions, she thought many clients would choose to opt
out, creating a cumbersome situation. The proposed changes are not
necessary since the current system, which has a few glitches,
generally works very well. She wanted to encourage the committee
to think about the costs involved, as well as the potential
cumbersomeness of the opt in situation.
Number 570
REPRESENTATIVE DAVID FINKELSTEIN asked what the impact would be on
a client in a case where the information could not be made
available to anybody, including the defendant. On page 9, line 14,
the change is made in what information is to be made available. By
eliminating "shall be subject to the other terms and conditions the
court may provide," all information would now be under that
category.
Number 606
MS. STROUT thought the intent there was to prevent a criminal
defendant from obtaining confidential information regarding
witnesses and/or the victim. She did not see that as a major
problem.
Number 623
REPRESENTATIVE FINKELSTEIN said he may be misunderstanding it, but
as it is written currently, it states that confidential materials
cannot be provided, including all information. The concern here,
especially in the case of the public defender, where they are
dealing with large numbers of clients, is the inability to give
even the police report with witnesses names removed. He asked Ms.
Strout if this had been a problem in her experience.
Number 635
MS. STROUT agreed that could be unfair. In her experience, she has
had clients who want to read every single word, and other clients
who do not. A defendant's expense for attorney time goes far
beyond necessary costs if the confidential information can be
deleted in a way to protect privacy.
Number 660
REPRESENTATIVE TOOHEY made a motion to adopt the committee
substitute for HB 25, version R, as the working draft.
CHAIRMAN PORTER asked if there was objection or discussion on the
motion.
REPRESENTATIVE FINKELSTEIN asked if someone could quickly explain
the differences from the previous draft, before the version was
adopted. He said the committee members had received a very good
memo explaining the differences between the committee substitute
and existing law, but he had not figured out what the substantial
changes were from the previous draft.
Number 680
MR. GUANELI said there was a change in provisions for expert
witnesses; one of which is on page 4, lines 8 and 9. There is a
similar change occurring on page 6, lines 13 and 14. Essentially,
what those changes do is to require that, in addition to getting a
name and address of the expert, the expert also has to provide a
report. This is something the prosecution experts almost always
do. Defense experts never do. In fact, defense attorneys will
instruct or request the experts not to write a report, so the
prosecution does not have anything. He felt Mr. Salemi did not
have an objection to this, and he understood Cynthia Strout's
testimony to be that it was a good idea to give notice of experts,
and copies of their reports. That change is reflected in this
draft. In other words, not only will you provide names and
addresses of experts, but the expert shall provide a written report
of any of the tests conducted and the conclusions reached by the
expert. That change was inserted into the bill on pages 4 and 6.
MR. GUANELI noted unfortunately, the other language that was in
there, that attempted to do something similar, was not taken out.
That was the language that follows immediately, on page 4, lines 10
and 11, where it says "...; the prosecutor shall also make
available for inspection and copying, any other reports, or witness
statements of these experts;" He was not certain exactly what that
does, and it could certainly be interpreted as, "any other reports
and any other cases the expert has ever done," which is
inappropriate. There is something similar on page 6, at lines 15
and 16. That happened when the committee substitute was drafted
up. Something was added and something should have been deleted,
but was not.
Number 730
REPRESENTATIVE TOOHEY made a motion to adopt amendment number 1,
which would delete on page 4, line 10, starting with the words "the
prosecutor shall", to line 11, "these experts." Remove those. And
also, on page 6, line 15, from the words "defendant shall" to
"these experts" on line 16. Delete those.
Number 744
REPRESENTATIVE FINKELSTEIN noted they needed to get back on track,
as there had been a previous motion to accept the committee
substitute.
Number 750
MR. GUANELI described the last change, so the committee could first
decide whether or not to adopt the draft version R, before passing
an amendment. The last change appearing at page 2, lines 27 - 29,
just added a few words. The statutory reference on line 29 really
applies only to the duty of the prosecuting attorney to turn over
things to the defense. This particular provision talks about the
duty of the defense to turn over things to the prosecutor; so the
wording had to be changed to make it so that the duty of the
defense attorney is to provide the prosecution with names of
witnesses to the same extent and in the same manner as is required
of the prosecution. So it is a slight change in wording to make
the playing field level, and to impose the same burden on both
parties.
Number 775
CHAIRMAN PORTER asked if the committee wished to have further
discussion on the adoption of the committee substitute, version R.
Hearing no objection, the committee substitute was adopted.
Number 780
REPRESENTATIVE TOOHEY made a motion to pass amendment number 1, as
described above. Seeing no objection, the amendment passed.
MR. GUANELI explained the intent of this work draft language on
page 2. Lines 13 - 21 requires, as part of mandatory disclosure,
that the defense let the prosecution know at least ten days before
trial if the defense is going to rely upon an alibi defense or some
other defense mentioned in the statutes. If the defendant does not
do that, the prosecution either gets a continuance or it can impose
a more stringent sanction. This particular provision on these nine
lines, was something that was recommended by the Criminal Rules
Committee as a change that would be considered by the Supreme
Court. He commented that this was one of those changes we thought
was a good idea to incorporate into the bill now rather than
running the risk of, in a couple of months, having the Supreme
Court change its rule and therefore causing confusion over what the
legislature intended. This has been suggested by the Criminal
Rules Committee to the Supreme Court and has actually been
submitted to the Bar Association.
Number 825
REPRESENTATIVE FINKELSTEIN had problems with two areas. One, being
the major burden occurring when we prohibit giving any of this
information to the defendants themselves. He felt that the
defendant should have the right to access this information. The
way it will occur if this bill passes, is that some employee of the
state or employee of the defense attorney will sit down in a jail
or whatever setting it is, while the defendant goes through mounds
and mounds of material. If the goal is to restrict their access to
this information, somehow it is not being served. They can sit and
take notes off of it while it is there. There is nothing that
prohibits them from getting what they are after anyway. It seems
we are just throwing a procedural hurdle into the whole thing.
Paperwork, as we know, runs our judicial system and our government.
He felt we had protection now for the materials intended to be kept
confidential and did not understand why the other information
cannot be given to the defendant to read. Besides the logical side
of fairness, there is also the practical side. We have a fiscal
note that is one-third of a million dollars. He assumed most of
that to be attributable to this particular problem. He hoped for
some middle ground that would achieve the purpose of the bill
without this hurdle.
TAPE 95-8, SIDE B
Number 000
RICHARD VITALE, AIDE TO REPRESENTATIVE PARNELL said they had spoken
with Representative Finkelstein and John Salemi from the Public
Defender's Office. They were entertaining some of the suggestions
and had something in written form, which he had not seen yet, as it
just came out today. He said the sponsor would like to see the
bill held, while they work on these suggestions, and then heard in
committee again.
CHAIRMAN PORTER asked from what view the fiscal note was created.
MR. VITALE said that this is due to the opinion that not everybody
would opt in. If everybody opted in there would be a zero fiscal
note. So the fiscal note here reflects the scenario that some
people would not opt in.
CHAIRMAN PORTER noted the fiscal note is driven on one side of the
issue by the Criminal Rules Committee and by the public defender's
assumption that everyone will not opt in. On the other side of the
issue, in the only state where there is a track record on this, the
facts seem to indicate that they do opt in. These two assumptions
conflict. He stated they would hold the bill, awaiting the
sponsor's amendments. He asked Dean Guaneli to work with the
sponsor on the bill.
HJUD - 02/08/95
HB 120 - INDEMNIFICATION OF PUBLIC EMPLOYEES
Number 075
CHAIRMAN PORTER, sponsor of HB 120, introduced the bill. It passed
the House last year, passed three committees in the Senate, and
died in Rules. This bill provides to the rest of the public
employees in this state, privileges that are already given to most
public employees, either by law or by employee union agreement. It
basically allows public employees, not otherwise covered, to be
indemnified from damages accrued because of an act or omission
occurring as a direct result of their employment. As indicated, in
balancing the position, it will allow employees to be indemnified
for negligent acts, but not for reckless or intentional acts.
These protections are now provided to most of the represented
employees of the state and of many municipalities. They are
provided by statute to employees of the University of Alaska and
all municipal school districts.
Number 140
REPRESENTATIVE VEZEY asked if all state employees and all
University of Alaska employees are currently indemnified.
CHAIRMAN PORTER said all state employees are not indemnified.
There will be testimony on how that breaks out. One of the
problems is for mid-management, which is often the category that is
not covered, because they do not belong to a union nor are they
covered by law. They get themselves named in a suit just because
they are in the line of responsibility within an organizational
chart, and then it stays with the person for years. Chairman
Porter said he just got his name off of a lawsuit that he had been
on for years; and he retired in 1987. The adverse affect of that
is, you can try to get a mortgage on your house, and find you are
a bad risk, because you are named in a suit that has a request for
$5,000,000 in punitive damages.
Number 200
SCOTT BRANDT-ERICHSEN, MUNICIPAL ATTORNEY OF ANCHORAGE, said
Anchorage is working on a special legislative program, and while
some preferred program is included, it has not been formally
approved. The public employer is immune from liability but the
employee is liable, if the facts in the case support it. Because
of the way it clearly spells out the responsibilities and
obligations of the employer and the employee, it prevents conflict
between the employer and employee when it comes to lawsuits against
public employees in the scope of their duties.
Number 260
DUANE UDLAND, DEPUTY CHIEF OF THE ANCHORAGE POLICE DEPARTMENT said
for several years, they have tried to get this through the
legislature. We are not asking for immunity for our employees, but
for protection while doing the work of government, without the fear
of someone taking our houses, boats, or cars because of a suit
filed against us. He said they are trying to make good faith
decisions and there is a tremendous amount of fear out there, when
individuals can be held accountable for actions that they take
because of their employer. He hoped the bill would pass.
Number 310
REPRESENTATIVE BUNDE wanted to clarify that this does not indemnify
against gross negligence.
Number 318
CHAIRMAN PORTER said it specifically excludes that coverage.
Number 320
GAIL VOIGTLANDER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW,
ANCHORAGE outlined the legal concept in the bill, as it is
currently drafted. Indemnification is defined in the bill as
settlements and judgments including the attorney fees and costs
entered against the employee; so when we are talking about
indemnification, that is the cause that is being dealt with. This
bill covers acts and omissions that occur during the course and
within the scope of the employee's employment with the public
employer. There are several exceptions or clarifications within
the bill that delineate where it is intended that there be defense
or indemnification of the public employee. The public employee is
not obligated to defend or indemnify if the act or omission was a
result of gross negligence or misconduct. Another point not
covered by the bill is disciplinary or criminal matters brought
against the employee.
Number 420
MR. CORKILL echoed the testimony given by Duane Udland. Government
should be held accountable for its actions. If someone is harmed
through a government employee, the employee should be able to make
a claim as appropriate. However, public employees should be
defended and protected, and the bill sets it out very clearly. On
page 2, line 2, where it talks about the acts or omissions which
are a result of gross negligence, the public employer would not
have the responsibility to protect the one who committed the act.
Having been a person who has been subject to lawsuit as a law
officer, it is very disconcerting to have your name attached to
something like that. Not only can the person pursuing the lawsuit
get your personal property, this adversely affects the performance
of the law officer. When a law officer has to react very quickly
to any emergency at hand, it sometimes causes a hesitancy, because
the officer pauses to think about what is or is not allowed. He
felt the indemnification bill would help protect this person from
these sorts of fears.
Number 480
KEVIN RITCHIE, DIRECTOR, ALASKA MUNICIPAL LEAGUE (AML), said they
supported the bill last year and this year. As a former city
manager he has been on both sides, as an employee and an employer.
He felt the language was comprehensive and easy to understand and
also balanced, in how it protects the employee, the employer, and
the public in a lot of cases. He stated AML supports passage of
the bill.
Number 545
BRAD THOMPSON, DIRECTOR, DIVISION OF RISK MANAGEMENT, DEPARTMENT OF
ADMINISTRATION, testified in favor of the bill. He stated this
bill codifies the existing practice the state provides to its
employees. The majority of employees are provided this under
collective bargaining agreements, defense, commitments, or
contractual statements; but not in as clear a form as is presented
in this bill. He thought this document had been massaged a lot
over the last two years. It is a complex subject, yet it does show
to both the employer and the employee, the conditions required and
provisions provided.
REPRESENTATIVE VEZEY wondered if members of the boards and
commissions were covered.
MR. THOMPSON said the definition of "employee" in this bill would
extend to members of boards and commissions established by the
employer.
REPRESENTATIVE GREEN made the motion to move HB 120 with individual
recommendations and attached fiscal notes.
Hearing no objection, HB 120 moved out of committee.
HJUD - 02/08/95
CSHB 42 - ABSENTEE VOTING BY FAX
Number 600
TOM ANDERSON, AIDE TO REPRESENTATIVE TERRY MARTIN, sponsor of CSHB
42, introduced the bill. He said the bill allows absentee voters
who apply within four days of an election, to receive a ballot by
fax, and vote, sending it back by fax (electronic transmission).
Number 640
REPRESENTATIVE FINKELSTEIN felt the word "or" on page 2, line 16
ought to be "and". Everyone submitting an absentee ballot has to
include their address, but the implication with the "or" is that if
they send in the absentee ballot, they actually do not have to
include the address, just whatever fax number they happen to be
using that day.
Number 654
REPRESENTATIVE GREEN read it to say you will give the address
where you want the ballot sent.
MR. ANDERSON thought the reason behind that was an individual may
be traveling and not have an address.
Number 675
DAVID KOIVUNIEMI, ACTING DIRECTOR, DIVISION OF ELECTIONS, OFFICE OF
THE LIEUTENANT GOVERNOR, answered Representative Finkelstein's
question about where in law we require the same information on the
face of the ballot request and on the ballot jacket, that we do for
a fax ballot. He said on an absentee ballot, they have to give the
information, including a resident address and things like that.
CHAIRMAN PORTER asked him to look at page 2, line 14. He said they
are hoping this does not mean that if you vote by fax, you do not
have to provide your address on the face of the ballot itself. We
presume this means that if you want your absentee ballot mailed to
you, you have to give the address to mail it to. If you want it
faxed to you, you have to give the fax number in which to fax it
to, and that is all that means; it does not change the requirements
for providing information on the face of the absentee ballot.
Number 725
MR. KOIVUNIEMI was not sure how they were going to do that yet. He
presumed they would still require that they give a resident address
in order to identify who they are, that they are qualified, and
what portion of the ballot would be counted; based upon the address
they gave us, and the district they registered at.
REPRESENTATIVE FINKELSTEIN noted that it currently states on the
absentee ballot that you must include your out of state address.
Number 750
MR. KOIVUNIEMI said all this was saying is that if you do request
your application by fax, that you also give them a fax number where
it is supposed to be transmitted. That is the intent.
Number 760
CHAIRMAN PORTER thought there was probably a lot of unnecessary
language in the statute. If they ask for fax ballots, you are
going to have to have a number to send it to.
Number 800
REPRESENTATIVE BUNDE asked what district they would vote in.
MR. ANDERSON said they would just vote in the district they last
voted in, until they change their residence.
REPRESENTATIVE VEZEY mentioned that you have to change your address
30 days before an election in order to vote in the new district.
There was some concern about the lack of privacy in a faxed vote.
TAPE 95-9, SIDE A
Number 000
REPRESENTATIVE TOOHEY said that is a person's right to give up
their privacy in how they voted. The ability to vote absentee
outweighs the inconvenience of another person seeing your ballot.
Number 075
REPRESENTATIVE BUNDE said the Pioneer Homes Advisory Board was
concerned about those who had been declared legally incompetent,
and therefore represented by others.
Number 084
MR. ANDERSON did not know how to prevent someone from being
fraudulent in that case. It is no different than someone voting
absentee by mail.
Number 130
REPRESENTATIVE FINKELSTEIN offered an amendment to delete the
portion of the bill that would allow the actual ballot to be faxed
back to the Division of Elections.
There was objection and a roll call vote was taken. Representatives
Davis, Bunde and Finkelstein voted yes. Representatives Toohey,
Vezey, Green and Porter voted no. The motion failed four to three.
Number 230
REPRESENTATIVE VEZEY made a motion to move the committee substitute
for HB 42, with individual recommendations and fiscal notes
attached.
Hearing no objection, committee substitute for HB 42 passed out of
committee.
ADJOURNMENT
The House Judiciary Committee adjourned at 3 p.m.
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