Legislature(1995 - 1996)
03/11/1996 01:12 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
March 11, 1996
1:12 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
Representative Bettye Davis
COMMITTEE CALENDAR
HOUSE BILL NO. 341
"An Act establishing a tax court to consider and determine certain
taxes and penalties due and collateral matters, and amending
provisions relating to taxpayer challenges to the assessment, levy,
and collection of taxes by the state; and providing for an
effective date."
- PASSED CSHB 341(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 462
"An Act relating to the offenses of driving while intoxicated and
refusal to submit to a chemical test of breath or blood; amending
Rules 6 and 32.1, Alaska Rules of Criminal Procedure; and providing
for an effective date."
- PASSED OUT OF COMMITTEE
HOUSE BILL NO. 311
"An Act repealing the limitation on the hours a person may be
employed in a mine; and making a related technical amendment to
avoid changing the penalties for failing to make payments into an
employee benefit fund."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 517
"An Act relating to records and hearings of the Department of
Public Safety; relating to a temporary permit to drive a motor
vehicle; relating to regulation of motor vehicles and commercial
motor vehicles; relating to renewal of a driver's license by mail;
increasing the property damage amounts for proof of financial
responsibility and proof of motor vehicle eligibility in order to
lawfully operate a motor vehicle in the state; relating to certain
notifications in accidents involving property damage; relating to
motor vehicle registration procedures; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 536
"An Act relating to charitable gaming."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 341
SHORT TITLE: TAX APPEALS/ASSESSMENT/LEVY/COLLECTION
SPONSOR(S): REPRESENTATIVE(S) GREEN
JRN-DATE JRN-DATE ACTION
05/09/95 2042 (H) READ THE FIRST TIME - REFERRAL(S)
05/09/95 2042 (H) RES, JUD, FINANCE
10/24/95 (H) RES AT 9:00 AM ANCHORAGE LIO
10/24/95 (H) MINUTE(RES)
01/19/96 (H) RES AT 9:00 AM CAPITOL 124
01/19/96 (H) MINUTE(RES)
01/24/96 (H) RES AT 8:00 AM CAPITOL 124
01/24/96 (H) MINUTE(RES)
01/26/96 2536 (H) RES RPT CS(RES) NT 1DP 4NR 3AM
01/26/96 2537 (H) DP: GREEN
01/26/96 2537 (H) NR: OGAN, AUSTERMAN, KOTT, WILLIAMS
01/26/96 2537 (H) AM: NICHOLIA, DAVIES, LONG
01/26/96 2537 (H) FISCAL NOTE (COURT)
01/26/96 2537 (H) ZERO FISCAL NOTE (REV)
01/26/96 (H) RES AT 8:00 AM CAPITOL 124
01/26/96 (H) JUD AT 1:00 PM CAPITOL 120
01/26/96 (H) MINUTE(RES)
01/26/96 (H) MINUTE(JUD)
01/29/96 (H) JUD AT 1:00 PM CAPITOL 120
01/29/96 (H) MINUTE(JUD)
02/28/96 (H) JUD AT 3:00 PM CAPITOL 124 (Sub.)
02/29/96 (H) JUD AT 4:00 PM HOUSE FINANCE 519
02/29/96 (H) MINUTE(JUD)
03/01/96 (H) JUD AT 8:00 AM CAPITOL 124 (Sub.)
03/06/96 (H) JUD AT 1:00 PM CAPITOL 120
03/06/96 (H) MINUTE(JUD)
03/08/96 (H) FIN AT 8:00 AM HOUSE FINANCE 519
03/08/96 (H) JUD AT 1:00 PM CAPITOL 120
03/08/96 (H) MINUTE(JUD)
03/08/96 (H) FIN AT 1:30 PM HOUSE FINANCE 519
03/11/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 462
SHORT TITLE: DRUNK DRIVING: EVIDENCE & SENTENCING
SPONSOR(S): REPRESENTATIVE(S) PORTER, Toohey
JRN-DATE JRN-DATE ACTION
02/02/96 2606 (H) READ THE FIRST TIME - REFERRAL(S)
02/02/96 2606 (H) TRANSPORTATION, JUDICIARY
02/28/96 (H) TRA AT 1:00 PM CAPITOL 17
02/28/96 (H) MINUTE(TRA)
03/06/96 (H) TRA AT 1:00 PM CAPITOL 17
03/06/96 (H) MINUTE(TRA)
03/08/96 (H) JUD AT 1:00 PM CAPITOL 120
03/08/96 (H) MINUTE(JUD)
03/11/96 3057 (H) TRA RPT 1DP 4NR 2AM
03/11/96 3057 (H) DP: G.DAVIS
03/11/96 3057 (H) NR: WILLIAMS, SANDERS, LONG, MASEK
03/11/96 3057 (H) AM: BRICE, JAMES
03/11/96 3057 (H) FISCAL NOTE (COR)
03/11/96 3057 (H) ZERO FISCAL NOTE (2-DPS)
03/11/96 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DEBORAH VOGT, Deputy Commissioner
Department of Revenue
P.O. Box 110400
Juneau, Alaska 99811-0400
Telephone: (907) 465-2300
POSITION STATEMENT: Provided department's and Administration's
positions and answered questions on HB 341.
DAN SECKERS, Chairman
Tax Committee of the Alaska Oil &
Gas Association (AOGA)
Senior Tax Attorney for Exxon Co., USA
P.O. Box 196601
Anchorage, Alaska 99519
Telephone: (907) 564-3776
POSITION STATEMENT: Testified on HB 341.
THOMAS K. WILLIAMS
Tax Committee of the Alaska Oil &
Gas Association (AOGA)
Alaska Tax Counsel
for BP Exploration (Alaska) Inc.
P.O. Box 196612
Anchorage, Alaska 99519-6612
Telephone: (907) 564-5955
POSITION STATEMENT: Testified on HB 341.
STEVE MAHONEY
Tax Committee of the Alaska Oil &
Gas Association
Managing Tax Counsel for ARCO Alaska, Inc.
P.O. Box 100360
Anchorage, Alaska 99510-0360
Telephone: (907) 265-6527
POSITION STATEMENT: Testified on HB 341.
ROBERT BRIGGS, Assistant Attorney General
Oil, Gas and Mining Section
Civil Division (Juneau)
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on HB 341.
ANNE D. CARPENETI, Assistant Attorney General
Central Office
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Provided department's position and answered
questions regarding HB 462.
ACTION NARRATIVE
TAPE 96-33, SIDE A
Number 0001
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:12 p.m. Members present at the call to order were
Representatives Porter, Green, Bunde, Vezey and Finkelstein;
Representative Toohey joined the meeting at 1:13 p.m. Absent and
excused was Representative Davis.
HB 341 - TAX APPEALS/ASSESSMENT/LEVY/COLLECTION
CHAIRMAN PORTER noted that discussions of the main three sticking
points had been completed at the previous hearing on HB 341. He
stated that amendments before him were numbered 1 through 4, dated
March 11, 1996.
Number 0230
REPRESENTATIVE JOE GREEN explained that Amendments 1-4 had been
omitted in the version R rewrite. He believed these amendments
were "consensus types" that should have been in the current version
of the bill. He offered Amendment1, which inserted the words
"disciplined or" in front of the words "removed from" on page 2,
line 31.
CHAIRMAN PORTER noted the motion to move Amendment 1.
Number 0293
REPRESENTATIVE DAVID FINKELSTEIN asked if the Administration had
problems with any of the four amendments.
DEBORAH VOGT, Deputy Commissioner, Department of Revenue, said
there was no problem with the first three; she had not yet reviewed
the fourth.
CHAIRMAN PORTER asked if there was an objection to Amendment 1.
Hearing none, he noted that Amendment1 was adopted.
Number 0365
REPRESENTATIVE GREEN referred to Amendment 2 on page 4, line 15,
which deleted the wording "the findings of fact of the informal
conference decision are presumed correct unless the taxpayer rebuts
the findings;" after "of proof;". Representative Green believed
that wording had been agreed to by both sides.
CHAIRMAN PORTER noted the motion to move Amendment 2 and asked if
there was any objection. There being none, Amendment2 passed.
Number 0396
REPRESENTATIVE GREEN referred to Amendment 3 on page 15, line 26,
which inserted after the phrase "and prescribed." the following:
"The scheduled may be subsequently modified by consent of the
parties." He explained Amendment Number 3 was a house cleaning
matter that got lost in the rewrite.
CHAIRMAN PORTER noted there was a motion to move Amendment 3 and
asked if there was an objection. There being none, Amendment3
passed.
Number 0428
REPRESENTATIVE GREEN referred to Amendment 4, line 18, page 10,
which deleted "and" and inserted "or" after "of Revenue". He
explained it had to do with the definition of the word "party" and
added, "It seems that that should be the Department of Revenue `or
the taxpayer', not `and the taxpayer'."
CHAIRMAN PORTER noted there was a motion to move Amendment 4.
MS. VOGT stated she thought it was better.
CHAIRMAN PORTER asked if there was an objection. There being none,
Amendment 4 passed. Chairman Porter mentioned there was an
additional amendment before him that was not identified.
REPRESENTATIVE FINKELSTEIN informed the committee that amendments
he would address were in the nine-page packet provided by the
Administration; these amendments, dated March 8, 1996, had a
Department of Revenue heading.
Number 0700
REPRESENTATIVE FINKELSTEIN moved Amendment 5, which deleted
provisions relating to the Board of Tax Appeals. Listed as
Amendment No. 1 in the Department of Revenue packet, Amendment5
read:
-In Section 1, page 2, lines 5-9, delete text beginning with the
phrase "The office of tax appeals is a quasi-judicial agency ..."
and ending with the phrase "... shall have at least two members."
-In Section 1, page 2, delete lines 27-29 (proposed AS
43.05.410(c)).
-In Section 1, page 7, line 17, delete the phrase "by the full
board".
-In Section 1, page 7, line 30, replace the word "board" with the
phrase "administrative law judge."
-In Section 1, page 8, at lines 1, 6, 8, 9 and 16, replace the word
"board" in each line with the phrase "administrative law judge".
REPRESENTATIVE FINKELSTEIN explained that Amendment 5 referred to
legislative confirmation and suggested the set-up, as envisioned,
was not analogous to a commission. These were hearing officers who
were retained, disciplined or eliminated by the chief officer, who
was retained or eliminated by the commissioner, he said.
Representative Finkelstein stated it was much more analogous to
hearing officers in other departments, who were not confirmed by
the legislature. He said the constitution precluded that
confirmation process. "Regardless of whether it's constitutional
or not," he said, "I believe that we ought to be doing this in the
form of what is really envisioned here. It's a judge. It's
somebody who's making a decision as an administrative officer or a
judge. And if we really wanted to go this route, we ought to have
retention elections, if we feel there has to be some sort of review
other than the appointing power of the Administration. I think the
main reason is that I don't think adding the legislature insulates
them from politics; I think it adds politics." He cited an
example. "I think it's the last thing we want here," he concluded,
"and I'd suggest that we return to the approach of administrative
law judges."
Number 0846
REPRESENTATIVE GREEN referred to earlier subcommittee discussion
and said, "without this type of a board or this type of review,
we're not really getting as far removed as Frankel had indicated,
and that this would, then, come closer to assuring a fair and
impartial review of a tax appeal .... Moving it over at least one
department is a significant help. But if that administrative law
judge in that department is not subject to any other authority
other than the Department of Administration, then there's still a
concept that they're both members of the Governor's cabinet, and as
such, there would be a certain amount of bias that might attach to
an appeal. And this is an attempt to make sure that ... there is
impartiality."
Number 0939
CHAIRMAN PORTER concurred, saying, "the idea of this whole endeavor
is to try to set up a scenario that has the best impression of
fairness and impartiality. And while I think that establishing the
board, as is constitutionally required, presents some challenges to
the board in terms of setting up regulations on their procedures,
I think those are far more surmountable than the problems that
would still exist if this remained an in-house executive function."
He asked for a roll call vote. Voting against Amendment 5 were
Representatives Bunde, Toohey, Vezey, Green and Porter. Voting for
Amendment 5 was Representative Finkelstein. Chairman Porter noted
that Amendment5 failed.
Number 1000
REPRESENTATIVE FINKELSTEIN moved Amendment 6, listed as Amendment
No. 2 in the Department of Revenue packet. Amendment 6, which
deleted provisions relating to direct appeal to superior court,
read:
-Delete Section 4, at pages 11-12, lines 20-2.
-Amend Section 5, page 12, line 19, by replacing the phrase
"AS43.05.240, 43.05.241, or 43.05.242" with the phrase
"AS43.05.240 or AS 43.05.241".
-In Section 11, page 16, delete text beginning on line 5 and ending
on line 18 (proposed AS 43.05.242).
-In Section 11, page 16, line 21, delete the phrase ", whether".
-In Section 11, page 16, line 22, delete the phrase "or under a
judicial appeal authorized by AS 43.05.042".
-In Section 12, page 17, line 9, delete the phrase "or 43.05.242".
CHAIRMAN PORTER objected to Amendment 6 for purposes of discussion.
REPRESENTATIVE FINKELSTEIN indicated they had discussed it
previously. "The key issue here is whether you can go directly to
superior court," he said. "The bottom line is that we're trying to
figure out what's the best for the state of Alaska with this, and
all we're doing here is we're giving an option to the company
involved to skip it. The Administration doesn't have that
opportunity." He cited a hypothetical situation, then pointed out
that people were usually required to go through the administrative
appeal process before going to court. He emphasized that this law
would apply to every taxpayer in the state.
Number 1165
REPRESENTATIVE GREEN referred to comments that the Administration
did not have the option of going directly to court. He indicated
that since the taxpayer was disputing an amount that would
otherwise be owed, there was no reason for the department to
initiate review by the court.
Number 1230
REPRESENTATIVE AL VEZEY referred to Representative Finkelstein's
assertion that the expertise lay in the superior court.
Representative Vezey remarked that all the testimony received was
to the contrary.
REPRESENTATIVE FINKELSTEIN clarified, "I said it lies with the
administrative judge."
REPRESENTATIVE VEZEY believed the amendment was contrary to every
working system with which he was familiar, particularly the U.S.
tax court system. Furthermore, giving the tax collector the right
to throw a case into court automatically gave them the right to
make taxpayers' records public information, he stated. Currently,
as HB341 was written, the appeal to the tax board would also be
public information. "But I hope we change that before we're done,"
he added.
Number 1300
REPRESENTATIVE FINKELSTEIN responded, "I must not have explained it
properly. This amendment doesn't allow the Administration to force
them to go to court. My point was of trying to show the
inconsistency within the approach embodied right now within the
bill. All this says is that the taxpayer shall follow the
administrative ... appeal process, that's all. The issue is should
the taxpayer be able to go directly to superior court and skip this
new board of tax appeals." He believed it was in the interest of
the particular company or entity involved, but not necessarily the
state.
REPRESENTATIVE VEZEY said he might have misunderstood. He had
thought Representative Finkelstein was saying the purpose of the
amendment would be to give the state the right to avoid the tax
appeal board and go straight to court.
Number 1362
REPRESENTATIVE FINKELSTEIN said, "I was just making an analogy that
in order to make it fair, the existing bill, we ought to allow that
to occur. That isn't allowed, and my suggestion to make it fair
and equal treatment of the parties is to require, regardless of who
it favors - the Administration, the state of Alaska or the taxpayer
- in either case, require people to go through the administrative
appeal process. That's all this amendment does."
REPRESENTATIVE VEZEY stated that given his new understanding, he
still opposed the amendment because it was contrary to other
systems that were considered fair and equitable. "The taxpayer
gives up a lot if they decide to bypass the appeals board process
and go straight to court, including making all their records
public," he said, adding that the taxpayer had to pay their tax
before using that avenue. "And so the state wins," he said. "The
king has the money. And then the king merely has to prove he's
entitled to keep it."
Number 1435
REPRESENTATIVE GREEN suggested the record include that a bill
introduced by the Governor on teacher tenure allowed for bypassing
the administrative process and going de novo to superior court.
"So, this is not precedent-setting in any manner," he said.
CHAIRMAN PORTER asked if there was further debate and then asked
for a roll call vote on Amendment 6. Voting against the amendment
were Representatives Toohey, Vezey, Green, Bunde and Porter.
Voting for the amendment was Representative Finkelstein. Chairman
Porter noted that Amendment 6 failed.
Number 1471
REPRESENTATIVE FINKELSTEIN explained that Amendment 7, which was
not in the packet, was a conceptual amendment that came out of
testimony at the last hearing. The direct appeal to superior court
included in the current bill version would apply only where the
issues on appeal were constitutional questions. If they involved
other determinations, the administrative appeal route would be
required.
Number 1560
CHAIRMAN PORTER expressed concern about making that a conceptual
amendment. He asked what would happen if a taxpayer had both a
constitutional issue and a normal regulation interpretation issue.
REPRESENTATIVE FINKELSTEIN replied, "They'd have to go through the
board."
CHAIRMAN PORTER pointed out that the conceptual amendment did not
say that.
REPRESENTATIVE FINKELSTEIN responded, "It says that you can only
bypass the board when your issues are only constitutional issues."
Number 1593
REPRESENTATIVE VEZEY commented that the tax board could not rule on
legality of regulations. A person would be denied the avenue of
going to court where that legality could be ruled on. "Again, to me
that defies a basic sense of justice and fairness," he added.
REPRESENTATIVE FINKELSTEIN said that was a good question and
suggested that Deborah Vogt be asked about it.
Number 1629
REPRESENTATIVE CON BUNDE referred to testimony at the previous
hearing about a separate accounting issue. He recalled someone
saying, "Yeah, we decided this was clearly constitutional and we
wanted to go directly to court and the Administration did not
oppose that (indisc.)." Representative Bunde suggested that was
the genesis of the current amendment. "And then, the amendment
says, though, that only the issues that both sides agree are
clearly constitutional takes the short cut to court," he said.
Number 1688
REPRESENTATIVE FINKELSTEIN asked: "Considering that the previous
amendment failed, do you think ... that this is a fertile area for
compromise?" He asked what issues besides constitutional issues
the board could not decide.
Number 1688
MS. VOGT responded, "The issue of whether an independent ALJ, or in
this case, an independent board, as you've now made it, could
invalidate a regulation is one I don't really know the answer to.
The theory why a hearing officer within a department cannot
invalidate a regulation is that the hearing officer stands in the
stead of the commissioner who has adopted the regulation, and the
hearing officer basically is the commissioner for the purpose of
the hearing." Ms. Vogt thought it presented an interesting
question as to whether a person or board set up outside the
department could invalidate a regulation. "I think it's pretty
clear that whoever the administrative person is, the person could
not invalidate a statute, as Representative Vezey has pointed out.
And I would certainly be amenable to amend your amendment
conceptually," she added.
Number 1755
REPRESENTATIVE FINKELSTEIN withdrew the amendment and ask the
department's help to work on it later. He offered instead, as
Amendment 7, an amendment not included in the Department of Revenue
packet, which had been submitted in written form as follows:
Amend Section 11, page 16, proposed AS 43.05.242,
Delete lines 5-8.
Insert:
"Sec. 43.05.242. JUDICIAL APPEAL. (a) Within 60 days after
decision resulting from the informal conference, a person aggrieved
by the action of the department under AS 43.05.240 in fixing the
amount of a tax or in imposing a penalty may appeal to the superior
court.
(b) The superior court, sitting without a jury, shall hear all
questions de novo. As used in this section, "de novo" has the same
meaning as in AS 43.05.400 - AS 43.05.499. The court shall
(1) resolve a question of fact by a preponderance of the
evidence or, if a different standard of proof has been set by law
for a particular question, by that standard of proof;
(2) resolve a question of law in the exercise of the
independent judgment of the superior court judge;
(3) defer to the Department of Revenue as to a matter for
which discretion is legally vested in the Department of Revenue,
unless not supported by a reasonable basis.
(c) When an appeal is taken under this section,"
[remainder of text as it appears on page 16, lines 9-18]
REPRESENTATIVE FINKELSTEIN indicated there had been no previous
discussion on Amendment 7.
MS. VOGT explained, "This is language that I have typed up after
discussions that we had, between Friday and this afternoon, with
taxpayer representatives. The department is concerned, and I
testified to this Friday, that the way the work draft is currently
drafted, there is no standard of review articulated for the judge
at superior court. As you know, we oppose the bifurcated process
allowing the taxpayer to go straight to superior court. But if ...
the taxpayer can go straight to superior court, we would propose
that the same standards of review be articulated in the statute
that are articulated for the administrative law judge under the
other route. And although I believe you'll hear from the taxpayers
that they haven't had a chance to get a quorum and an actual vote
of AOGA, I think many of the taxpayers are in agreement with this
language." Ms. Vogt indicated the language also made clear that
the superior court would sit without a jury. She stated that had
been discussed Friday without dispute.
Number 1873
DAN SECKERS, Chairman and Alaska Tax Counsel for EXXON, Tax
Committee of the Alaska Oil and Gas Association (AOGA), affirmed
that at a meeting that morning, they had addressed the amendment
but had no quorum. He said they had talked previously about not
having a jury trial; AOGA had no problem with that. However, for
the rest of the amendment, AOGA currently had no position.
TOM WILLIAMS, Alaska Tax Counsel for BP, Tax Committee of the
Alaska Oil and Gas Association (AOGA), indicated BP would vote for
the amendment when it came before the AOGA tax committee; they
supported it now.
STEVE MAHONEY, Alaska Tax Counsel for ARCO, Tax Committee of the
Alaska Oil and Gas Association (AOGA), said, "To the extent that
this amendment would come before the AOGA committee, ARCO would
vote for it."
Number 1918
REPRESENTATIVE VEZEY said, "if I had to go to court in the state of
Alaska over taxes, I'd like to have a jury."
REPRESENTATIVE FINKELSTEIN expressed his preference to have an
income tax sooner rather than later. When that happened, he
believed the appeal process would be a top consideration. "For
now, though, we do rarely have those kind of individuals involved
in this process and I suggest that our focus be the current
situation rather than the future, even though ... I wish that was
the case," he said.
CHAIRMAN PORTER noted there had been a motion and discussion on
Amendment7.
Number 1958
REPRESENTATIVE VEZEY said, "I really am curious if there isn't a
constitutional issue here about denying somebody a right to a jury
trial before you deprive them of their property. I readily admit
that nine times out of ten, if not more, most taxpayers would
prefer to go before a professional judge to decide a complicated
set of facts, rather than go before a jury, which almost invariably
would make the wrong decision, but I don't think we
constitutionally can deny people the right to a jury trial if
they're going to take their property."
Number 1982
REPRESENTATIVE GREEN recalled discussion by the committee at the
previous hearing and said, "In this particular case, now, the
superior court is acting as an appeals court, in which case there
isn't a denial of process because most appeals courts ... don't
have jury trial."
REPRESENTATIVE VEZEY responded, "It's my understanding of the law
in the state of Alaska that the supreme court requires that a
person exhaust their administrative remedies before they go to
court. But at that point, you are entitled to a jury trial."
Number 2025
ROBERT BRIGGS, Assistant Attorney General, Oil, Gas and Mining
Section, Civil Division (Juneau), Department of Law, said, "I can
tell you that there is a reported Alaska Supreme Court opinion in
which it was decided that there was not a constitutional right to
a jury trial to review a tax assessment. That's the Winegardner
case that's already been cited to the committee."
REPRESENTATIVE CYNTHIA TOOHEY asked why anyone in their right mind
would pay their tax fine and then take the case to court without a
jury trial.
Number 2050
CHAIRMAN PORTER responded that these issues were so complex that if
it involved him, he would not want a jury trial. "I would not want
the jury to be influenced by pizzazz instead of substance, which
juries often are," he said.
REPRESENTATIVE VEZEY pointed out they were not creating a statute
that only addressed royalty and severance tax payments. It would
apply to any tax.
Number 2120
REPRESENTATIVE FINKELSTEIN said previous testimony indicated it was
not in the public interest to have jury trials in these cases. He
added that royalties, which were not a tax, were not included.
Although the bill might need amended in the future for other kinds
of cases, in these cases, he believed there was no doubt about the
public interest.
CHAIRMAN PORTER asked if there was further discussion on
Amendment7 and then asked for a roll call vote. Voting against
the amendment were Representatives Vezey and Bunde; Representative
Bunde indicated the discussion had not been completed. Voting for
the amendment were Representatives Finkelstein, Green, Toohey and
Porter. Chairman Porter noted that Amendment 7 had passed.
Number 2182
REPRESENTATIVE FINKELSTEIN offered Amendment 8, listed as Amendment
No. 4 in the Department of Revenue packet; he specified that
Amendment No. 3 of that packet was not being offered. Amendment8
read:
-In Section 1, page 6, delete text on lines 19-20 (proposed AS
43.05.455(f)).
-In Section 1, page 6, line 11, insert a new subsection (e) to read
as follows, and renumber remaining subsections accordingly:
(e) Evidence on the following subjects is irrelevant and may
not be admitted, unless the administrative law judge grants an
exception in the interest of justice:
(1) history of legislative provisions that have not been
enacted;
(2) history of a draft regulation that has not been
adopted;
(3) confidential information under AS 43 of a taxpayer
other than the taxpayer whose tax is the subject of the appeal may
unless the confidentiality has been waived by that other taxpayer.
REPRESENTATIVE FINKELSTEIN explained that the experience of the
Administration was that these kinds of requests contributed to the
"tons and tons of material" involved in discovery. "I think we've
got to do what we can to eliminate the paper wars," he said.
Number 2235
CHAIRMAN PORTER said, "Basically, this amendment would limit
discovery to the extent that proposed-but-not-adopted regulations
and proposed-and-not-adopted statutes would be not admissible, in
any form."
REPRESENTATIVE FINKELSTEIN indicated that was incorrect.
CHAIRMAN PORTER suggested it would be prima facie irrelevant.
REPRESENTATIVE FINKELSTEIN asked for clarification.
CHAIRMAN PORTER said, "They're irrelevant unless a showing can be
made that they are relevant." He asked if that was what the
amendment said.
REPRESENTATIVE FINKELSTEIN replied that was exactly what it was.
Number 2277
REPRESENTATIVE VEZEY said that, in light of the jury being
eliminated from the system, the amendment was totally uncalled for.
"Legislative intent, regulatory intent are concerns of the court,"
he said, "and that's the best way I know of to express it."
CHAIRMAN PORTER clarified that the amendment dealt with regulations
and statutes that were not adopted.
REPRESENTATIVE VEZEY replied, "But it also expresses legislative
intent."
REPRESENTATIVE FINKELSTEIN indicated the court determination was
that it did not express legislative intent. "That was the
testimony at our previous hearing," he said.
Number 2304
REPRESENTATIVE GREEN stated, "If we say that because there isn't
any value in legislative intent as described in bills that are
introduced, perhaps, and are making their way through, that don't
make it clear through and become law, then I would direct your
attention to line 8 where it says hearsay evidence is admissible if
it's the kind of evidence which responsible persons are accustomed
to rely on. And to me, there could well be some information
included in legislation that didn't make it all the way through
that would certainly be elevated above hearsay." He specified he
was referring to line 8, page 6, of the work draft.
Number 2345
REPRESENTATIVE FINKELSTEIN said, "We do know from being here, in
our own experience, that the intent of the legislature is not
expressed unless the legislature takes an action. Just because a
bill is introduced, just because a bill makes it through a
committee, legislative intent derives from the action of the body
as a whole, not of one committee or subcommittee or individual
legislator."
Number 2388
REPRESENTATIVE GREEN replied, "I submit again, though, that if
we're going to have the information that was submitted in a prior
bill, that has been incorporated in this bill by the
Administration, hearsay evidence is admissible, and then we can
write down and say, however, that which is the history of
legislative provisions, and, I would presume, including legislation
that's vetoed by the Governor, passed both houses and then is
vetoed, would also fit in this not-admissible category. I think
we're really stretching the fact that hearsay is okay but
legislative passage is not. I believe that's what you'd be
saying."
REPRESENTATIVE VEZEY added, "Certainly, an amendment to a bill or
a proposed amendment that fails would be a very good expression of
legislative intent."
Number 2425
REPRESENTATIVE BUNDE applauded the limitation of paperwork and
billing hours. "But I think we're confusing legislative and
legislator," he said.
CHAIRMAN PORTER mentioned that information had been provided to the
committee the previous Friday on that point but that he could not
recall it. "Right now, I'm tending to think that if a regulation
weren't passed and a statute weren't passed, I can't see any
relevance to the discussion that went on," he said.
MS. VOGT indicated cases had repeatedly held that nothing could be
concluded, as a matter of law, from the legislature's failure to
act, in terms of legislative intent.
TAPE 96-33, SIDE B
Number 0001
MS. VOGT voiced that it would be difficult to describe the
burdensomeness of the requests for documentary information from
taxpayer after taxpayer. She stated, "These were simply two
categories that we know, as a matter of law, can't be probative of
anything, that it would simply help ... save the whole state money
to foreclose those inquiries before they start."
Number 0053
MR. WILLIAMS referred to page 5, lines 9 through 12, provisions for
people to find legislative history on their own, and suggested the
idea that taxpayers would ask the department to do their legal
research for them would end. He believed there might be a case
that said history of legislation that did not pass was not
probative of legislative intent. However, he thought it was
important to know whether the legislature was aware of something or
not at a particular time.
MR. WILLIAMS cited a case in point with respect to a regulation,
saying "In 1981, when I was commissioner, legislation was passed
repealing separate accounting, that said, specifically, the
windfall profit tax for the feds was a deduction against separate
accounting. And the question was raised whether it would still be
a deduction under the new tax that was created. And we had
discussion within the department and never adopted a regulation.
But the decision was made at the commissioner's office that it was,
in fact, going to be a deduction. Now, if a taxpayer can get the
evidence to show that that was a policy decision made, rather than
in the absence of a regulation, why shouldn't they be able to show
it? If it's not relevant, it won't be admissible anyway."
MR. WILLIAMS continued: "But if it's relevant to show that the
legislature was aware of problems with the markers through Prince
William Sound or something like that, that could become relevant in
some context relating to tax and the deductions for spill response
costs .... I'm not sure, also, that it's absolutely clear that
it's always going to be irrelevant as a matter of law. The case
simply hasn't come up right." He cited the example of SB 103,
which failed in the 1972 Senate ten-to-ten. Ten weeks later, the
exact same words in a different bill were determined okay to go
forward. He again suggested it would be good to look at a bill for
knowledge that the body had relevant information.
Number 0177
CHAIRMAN PORTER said, "Considering the restrictions that already
exist in the bill, and reading what this amendment says, I don't
think there's a great deal of difference." Basically, he
suggested, it came down to the difference between a judge ruling on
whether information, which the taxpayer had to develop on his own,
was relevant and the judge saying `I'll let it in in the interest
of justice.' "And I'm not sure what the interest-of-justice
standard is," he said. "I know what relevancy generally is." He
added, "I don't know if I like the amendment in that context."
REPRESENTATIVE FINKELSTEIN referred to previous mention of other
bill history and said, "If that provision is the one provision that
eventually was enacted into law, then it is relevant and it would
be covered under this. It says history of legislative provisions,
not bills that have not been enacted. So, if it's a provision that
somehow came from one other place, went into another bill, then
that legislative history is still relevant. In the cases where ...
there's some unusual issue, such as who is aware of something, ...
there is an exception in here, where it's in the interest of
justice, they can allow it. So, it isn't a blanket prohibition."
He agreed legislative intent could not be inferred from actions not
taken.
Number 0255
CHAIRMAN PORTER said, "I don't interpret either view of this as
looking for that, really." He said it had to do with whether the
legislature or perhaps the Administration, in presenting
information on a bill, had a relevant fact or not.
MS. VOGT agreed with Mr. Williams that the legislation went a long
ways towards reducing burden in requiring a taxpayer to research
legislative history. "But there still remain a lot of documents
within ... the Department of Law and the Department of Revenue that
we are repeatedly asked for," she said. "And that's not covered by
the provisions requiring the taxpayer to go to the library when the
information's available at the library. I certainly agree that if
a taxpayer does that research at the library, finds something or
knows something that came to the attention of the legislature, that
the issue is, `did the legislature know this, were they aware of
it,' that would be a perfect example for the administrative law
judge to find that an exception to this provision [was] required."
MS. VOGT concluded, "We are setting up a system whereby discovery,
rather than going on out of sight of the judge, and the parties
making up their own minds on what they'll do and what they won't do
and only going to the judge if they get into a dispute, here, we've
set up a system where the administrative law judge is supposed to
take an affirmative role in discovery and approve a discovery plan
at its inception."
Number 0346
CHAIRMAN PORTER asked if that wouldn't limit a request for
unnecessary research on the part of the department.
MS. VOGT replied it was possible.
REPRESENTATIVE VEZEY said legislative history may or may not be in
the library somewhere. "We have a statute that says that these
public records are public records unless you're involved in
litigation with the state. Then, they're no longer public records.
That would be a case where discovery was the only method available
to a party to get this information. If that statute wasn't there,
I think I might agree with you."
MS. VOGT responded, "To the extent that those records are in the
possession of the Department of Revenue, that's right that they are
controlled by the statute that says ...."
REPRESENTATIVE VEZEY interjected that it did not matter which
department of the state.
MS. VOGT said, "It they're in the Legislative Affairs library, the
taxpayer can go down and look at them. If they're in legislators'
files, they're not covered by that public disclosure provision that
you've just cited."
Number 0356
REPRESENTATIVE VEZEY said, "It goes beyond just the Department of
Revenue. It goes to other state agencies. Now, if it's in the
public domain, that's different; they've already been released.
But I just know from experience that if you are involved in
litigation with the state, you can't go down to state agencies and
start going through their records without getting what amounts to
a court order."
REPRESENTATIVE FINKELSTEIN said, "This is just the legislative
history here. And legislative history is available. I've
researched plenty of things and they don't even ask where you're
from."
CHAIRMAN PORTER asked if there was further discussion on
Amendment8 and then asked for a roll call vote. Voting for the
amendment was Representative Finkelstein. Voting against the
amendment were Representatives Green, Bunde, Toohey, Vezey and
Porter. Chairman Porter noted that Amendment 8 failed.
Number 0437
REPRESENTATIVE FINKELSTEIN mentioned that he was skipping Amendment
No.5 of the Department of Revenue packet and going to Amendment
No. 6, which would now be Amendment9. He said for the final three
amendments, 9, 10 and 11, they had heard from neither the taxpayers
nor the state. Nor had those been covered in previous hearings.
REPRESENTATIVE FINKELSTEIN referred to Amendment 9 and said,
"there's a procedural system set up that's way beyond my
understanding when it comes to resolving these questions, which
ones are a matter of law, which ones are a matter of fact, et
cetera. The last thing we want to do is start over. There was
some confusion as to exactly what this all meant. We ought to, as
much as possible, try to keep that standard in place and this
amendment would do just that."
MS. VOGT said, "This Amendment No. 6 in our package should be
replaced by what you passed as Amendment 7."
CHAIRMAN PORTER said, "So, we should withdraw number 6, then,
also."
MS. VOGT replied, "Our numbering number 6."
REPRESENTATIVE FINKELSTEIN withdrew the amendment and noted that
Amendment 9 was now Amendment No. 7 from the Department of Revenue
packet. Amendment 9 read:
Amend Section 6, page 12, lines 24-27, to read as follows:
* Sec. 6. AS 39.25.120(c) is amended by adding a paragraph to
read:
(25) the chief administrative law judge and any other
administrative law judges appointed to the office of tax appeals of
the Department of Administration under AS 43.05.410.
REPRESENTATIVE FINKELSTEIN indicated there had been a slight amount
of previous discussion on Amendment 9. "It's a rather thin line
between the exempt service and the partially exempt service," he
said.
Number 0511
CHAIRMAN PORTER asked if the amendment would make ALJs partially
exempt.
REPRESENTATIVE FINKELSTEIN said, "Yes."
REPRESENTATIVE VEZEY asked where they were now.
REPRESENTATIVE FINKELSTEIN answered, "In the bill, they're exempt
service."
REPRESENTATIVE VEZEY said, "In light of the fact that, to the best
of my knowledge, we have no statute defining what is partially
exempt, it's a very gray area in the law. Lacking a statute that
would define what partially exempt is, I would just have to oppose
the amendment."
REPRESENTATIVE FINKELSTEIN asked to hear briefly from the
department and any taxpayers who wanted to comment.
Number 0544
MS. VOGT explained, "Exempt normally is truly at-will. And one of
the reasons we propose partially exempt is that we agree with the
taxpayers on the concept of `dismissible only for cause.' I guess
that's not entirely inconsistent with exempt service, but partially
exempt seems more protected than exempt in terms of `dismissible
for purely political reasons.'"
Number 0583
CHAIRMAN PORTER asked: "Am I correct that the provisions of the
bill that the requirements for dismissal only for cause and that
sort of thing would be the criteria, regardless of whether we
called them exempt, non-exempt or employee classification xyz?"
MS. VOGT replied, "Up until the very last part of your sentence, I
agree with you." She added, "As between exempt and partially
exempt, the language in the statute's going to govern."
CHAIRMAN PORTER asked: "So, the effect of this is, basically,
trying to come up with a title that more fits our criteria, rather
than changing the criteria."
Number 0606
MS. VOGT replied, "Precisely. And we saw this amendment as part of
the package. The Governor's bill proposes ALJs within the
Department of Administration, appointed by the commissioners, in
the partially exempt service. The legislation, in the work draft,
has a board of exempt people confirmable by the legislature and, in
a sense, they're part of a package."
CHAIRMAN PORTER asked what the classification would be for a Alaska
Public Utilities Commission (APUC) board member.
MS. VOGT replied, "An APUC board member, I would be quite certain,
would be exempt. But the hearing officer that works for the APUC
would probably be partially exempt."
Number 0650
REPRESENTATIVE GREEN said, "I think that while we do say, in the
first part of the bill, that they would only be dismissed because
of cause, there is still that tie of partially exempt to the other
administrative officers within a department. But I think another
criteria, at least, that was considered in this is that these ALJs
are going to exercise a significant decision-making tribunal on
major, major items, certainly the large tax issues. And it seems
to me that while I'm all in favor of cutting state government, it
might be that here is a case where we should try and attract those
personnel, who are astute enough, in demand enough, marketable
enough, to a salary that would be commensurate with the position
and the responsibility (indisc.)."
Number 0698
REPRESENTATIVE BUNDE asked if there was a salary difference between
exempt and partially exempt.
MS. VOGT replied, "Not necessarily."
CHAIRMAN PORTER indicated the limits were different.
Number 0707
MS. WILLIAMS suggested there were two reasons for putting it in the
exempt. First, it was consistent with legislative confirmation.
And second, it was related to salary. "There are exempt petroleum
geologists in the Department of Natural Resource, Division of Oil
and Gas," he said. "And the reason they're in the exempt service,
even though they're staff persons, not in a policy-making role, is
so that their salaries can be competitive with the private sector."
CHAIRMAN PORTER asked if there was further discussion on
Amendment9. He then asked for a roll call vote. Voting for the
amendment was Representative Finkelstein. Voting against the
amendment were Representatives Green, Bunde, Toohey, Vezey and
Porter. Chairman Porter noted that Amendment 9 failed.
Number 0777
REPRESENTATIVE FINKELSTEIN indicated Amendment 10 was Amendment
No.8 in the Department of Revenue packet. Amendment 10 read:
-Amend Section 14, at page 17, lines 31-32, by deleting the phrase
"meeting with representatives of the Department of Revenue [FORMAL
HEARING UNDER AS 43.05.240]" and replacing with the phrase "a
formal hearing under AS 43.05.241 or a judicial appeal under AS
43.05.242 [AS 43.05.240]".
-Amend Section 14, at page 18, lines 1-2, by deleting the phrase
"meeting [HEARING]" and replacing with the phrase "hearing".
REPRESENTATIVE FINKELSTEIN explained, "Again, it's attempting to
hang on to some of the standards we've built up in the past." As
the amendment had not been discussed to any degree, he expressed
interest in hearing from witnesses.
MS. VOGT explained, "The section that it amends, [AS] 43.55.013(g),
I believe, is a section in the severance tax statute dealing with
... contesting the presumption of production at the economic limit.
And the language currently reads that a taxpayer who contests the
statutory presumption may prove, at a formal hearing in front of
the department, by clear and convincing evidence, that a different
monthly production at the economic limit is appropriate."
MS. VOGT did not believe participants intended to change the
severance tax statute. "What happened was, the package went over
to the legislative drafters and there was a reference to
[AS]43.05.240, which is currently the taxpayer remedies section in
the existing statute. Since the work draft changed .240 and made
it into three sections, ... the drafter took a stab at what he
thought might be the best way to handle the reference, [in] which
it was not clear what we wanted to do, or what anybody wanted to
do."
MS. VOGT explained that in the new work draft, "informal
conference" had been in the language, rather than "at a formal
hearing in front of the department". There had been considerable
discussion about how to fix it. "Finally, all agreed to simply
leave out the location of any hearing," she stated. She did not
approve of the way the drafter had solved the problem with the
concept of "at a meeting with representatives of the department".
She said, "We believe that eviscerates the protection that the
department has at the trial de novo, that we should be able to rely
on the presumption unless the clear and cogent evidence standard
has been met. And I don't think there's really any disagreement.
It's just a question of convincing the legislative drafter."
Number 0954
MR. WILLIAMS said that was correct. He referred to page 17, line
30, and stated, "Beginning on line 30, it would say `the taxpayer
may rebut this presumption', and strike the word `at', strike all
the next line, strike `under AS 43.05.240' in the brackets line32.
And I think we're in agreement on that change there. And then, in
lines 1 and 2, go back to the word `hearing'."
MS. VOGT said, "Right."
MR. WILLIAMS clarified, "Use the word `hearing' again there, rather
than `meeting'.
CHAIRMAN PORTER asked if that was what the amendment did.
MR. WILLIAMS replied, "No. But that's where, at our discussions
with the department, we ended up agreeing how to do that."
CHAIRMAN PORTER asked Representative Finkelstein if he would
consider a friendly amendment to his amendment, striking everything
in the body of Amendment 10 and just saying, "page 17, line 30,
delete `at'; line 31, delete entire; line 32, delete `under AS
43.05.240'."
Number 1049
REPRESENTATIVE FINKELSTEIN said, "I'll withdraw my amendment and
offer that as the amendment."
CHAIRMAN PORTER referred to page 18, line 1, and indicated
`meeting' should be deleted, with `hearing' reinserted in its
stead, for Amendment 10. The wording would read: "The hearing
shall be held before February 15 of the year or within six months
after commencement of gas production for a lease or property." He
asked if there was an objection to the amendment. There being no
objection, Amendment 10 passed.
REPRESENTATIVE VEZEY indicated he had expected another amendment.
He referred to page 8, line 17, which provided that the department
may conduct hearings and compel the attendance of witnesses and the
production of books, records, and papers of any person. He
expressed concern that the records were public records.
CHAIRMAN PORTER said, regardless of whether there was an appeal,
the making public of records under the bill occurred after the
final administrative decision.
Number 1215
MS. VOGT pointed out that under current procedure at the Department
of Revenue, the decisions of the hearing section become public at
the close of a hearing. The taxpayer was generally given a copy of
the decision with the admonition to redact it in any way that would
preserve confidentiality. "And this is so that the law established
by the hearing officers can be followed," she said, "so that the
public can know what it is."
CHAIRMAN PORTER asked if that procedure would remain under effect
in this statute.
MS. VOGT affirmed that. "This section, the way I read it, means
that the proceedings are going to be closed," she said. "They're
going to be confidential. But they become public at the end, to
the extent that that process is gone through." She asked for
clarification on Representative Vezey's proposed amendment.
Number 1340
CHAIRMAN PORTER suggested the amendment would propose that records
and the decision would remain confidential after the decision was
rendered.
REPRESENTATIVE VEZEY clarified his intent was not that the decision
would remain confidential, just the taxpayer's records.
CHAIRMAN PORTER thought that could be accomplished by removing
records and proceedings. He said, "Then it would be `are
confidential except that the decisions become public records and
open to the public when the final administrative decision is
issued'." He added, "I think you'd have to include proceedings,
because the records are part of the proceedings."
Number 1370
REPRESENTATIVE FINKELSTEIN said the provision was important and
came from the appropriateness of some degree of public disclosure.
He thought it was a reasonable compromise. "I did not offer the
amendment that would have expanded this to a greater degree than
the bill partially in deference to the compromise that's been
reached," he explained.
CHAIRMAN PORTER asked if providing confidentiality until the
decision was made was current policy.
MS. VOGT said, "Proceedings are currently confidential and
decisions are published, pseudonymed. How that practice fits in
with this precise language, I'm not entirely clear in terms of the
records, proceedings and decisions." She indicated they had not
generally published motions, oppositions to motions, rulings on
motions, or other proceedings of the hearing, except for the final
decision.
Number 1424
REPRESENTATIVE TOOHEY expressed that she shared Representative
Vezey's concern.
CHAIRMAN PORTER asked if everyone would be comfortable with a
conceptual amendment. He suggested drafters look at existing
language and craft the bill so that the decision would become
public, with the ability of the taxpayer to peruse it for
confidential information, instead of the wording in work draft R.
REPRESENTATIVE FINKELSTEIN said, "This is, I think, just a
reasonable statement of what's appropriate public policy." He
suggested there might be other standards implemented if and when
there was an income tax. He thought it reflected the public
interest in knowing what the state was doing in its decisions with
billion dollar cases.
REPRESENTATIVE VEZEY mentioned there was a corporate income tax in
Alaska, which many citizens paid.
Number 1584
REPRESENTATIVE BUNDE indicated he did not want to pass a law that
would require readjustment. He shared Representative Finkelstein's
concerns about billion dollar settlements. He said he wanted the
language to reflect what was currently being done.
REPRESENTATIVE FINKELSTEIN said, "I think people are missing
something here. The section we're talking about allows the
administrative law judge to issue a protective order requiring that
specific parts of the record remain confidential. And when the
decision is released, those items shall be removed from the
materials made available. There's plenty of protection that exists
right now." He clarified he was talking about page 8, lines 21-25.
Number 1471
CHAIRMAN PORTER agreed it seemed to generally reflect current
policy.
REPRESENTATIVE VEZEY asked for a definition of "redacting."
CHAIRMAN PORTER replied, "Blacking out sections that you want to
remain confidential."
REPRESENTATIVE BUNDE moved to adopt CSHB 341, version R, as
amended, as a work draft.
CHAIRMAN PORTER noted there was a motion to adopt working draft R,
dated 3/7/96, of CSHB 341, as amended, as the working document and
asked if there was an objection.
Number 1794
REPRESENTATIVE FINKELSTEIN indicated he thought more work needed to
be done. He suggested the Administration, which had to sign the
bill, was the only real entity that played a role in these kinds of
things.
REPRESENTATIVE BUNDE made a motion that CSHB 341, as amended, be
moved from committee with individual recommendations.
CHAIRMAN PORTER noted there was a motion to move CSHB 341,
versionR, as amended, with individual recommendations and any
fiscal notes, as attached. There being no objection, it moved from
committee.
Number 1844
REPRESENTATIVE FINKELSTEIN mentioned there were two letters of
intent, by Representative Green and the department. CHAIRMAN
PORTER called a short recess to read the letters. The two letters
of intent were withdrawn.
HB 462 - DRUNK DRIVING: EVIDENCE AND SENTENCING
Number 2055
CHAIRMAN PORTER noted that the next item of business was HB462.
As sponsor of the bill, he explained that HB 462 did three things.
"One, when we passed, as you remember, the DWI felony provisions,
one thing that we put in and did not really mean was that we
restricted the court ... to being required to institute the sum
total of the suspended sentence if a defendant had failed to take
any portion of his ... or her first treatment program," he said.
He indicated that in those cases, usually some portion of the
suspended sentence was put into effect to get the offender's
attention, with continued attempts made at treatment. "This bill
would restore the court's ability to invoke a portion of the
suspended sentence in that situation but still have the opportunity
to take another shot at treatment if it is indicated," he added.
CHAIRMAN PORTER indicated the basis for getting into a felony-level
prosecution was prior convictions. He said people frequently came
to Alaska with prior convictions elsewhere. After being arrested
here, they were required to go to grand jury in a felony case
within ten days, and it was extremely difficult to get a certified
copy of their record to the grand jury in time for that to be
considered. "What this bill would allow would be to use the print-
out, if you will, from the criminal history of that person's state
for that evidence at grand jury, which, of course, doesn't find
them guilty, it just binds them over for trial," he said, noting
that the best evidence of the hard copy certification would still
be required at trial.
CHAIRMAN PORTER explained the bill would also disallow the
requirement for a pre-sentence investigation in some cases. "This
would require that if this were the second felony, that there would
be a pre-sentence investigation, as is required under the other
statutes now," he said. He noted that Jerry Shriner from the
Department of Corrections was present to answer questions if
needed.
Number 2323
ANNE D. CARPENETI, Assistant Attorney General, Central Office,
Criminal Division, Department of Law, testified that the department
supported HB 462.
REPRESENTATIVE GREEN referred to Section 7, page 3, and asked if a
sentence had not already been given, whether this act would apply.
MS. CARPENETI replied, "I think what this means is that for your
third offense within five years, for the felony offense, it has to
occur after the effective date of the act." However, prior
convictions could have occurred before that, she indicated.
Number 2395
REPRESENTATIVE TOOHEY pointed out there was an amendment in her
packet.
CHAIRMAN PORTER explained that amendments had been offered in other
committees, which he, as sponsor, had been asked to entertain. He
had declined. "I would speak against them when it gets to the
floor, as a matter of fact," he said, "because there's been any
number of second thoughts in this general area that have come
about."
REPRESENTATIVE TOOHEY made a motion that HB 462 move from committee
with individual recommendations and attached fiscal notes. There
being no objection, HB 462 moved from the House Judiciary
Committee.
ADJOURNMENT
There being no further business to conduct, CHAIRMAN PORTER
adjourned the House Judiciary Committee meeting at 2:45 p.m.
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