Legislature(1995 - 1996)
03/18/1996 01:05 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 18, 1996
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
Confirmation of Sharon Nahorney to the Commission of Judicial
Conduct
HOUSE BILL 493
"An Act relating to involuntary commitment for alcoholism or drug
abuse."
- CSHB 493 (JUD) MOVED FROM COMMITTEE
HOUSE BILL 479
An Act relating to civil liability for injuries or death resulting
from equine activities."
- CSHB 479 (L&C) MOVED FROM COMMITTEE
HOUSE BILL 318
"An Act relating to advance directives for mental health
treatment."
- CSHB 318 (JUD) MOVED FROM COMMITTEE
HOUSE BILL 359
"An Act relating to the appointment and confirmation process for
member of certain boards, commissions, and similar bodies; relating
to terms of certain appointees; and providing for an effective
date."
- CSHB 359 (JUD) MOVED FROM COMMITTEE
PREVIOUS ACTION
BILL: HB 493
SHORT TITLE: INVOLUNTARY COMMITMENT:ALCOHOL/DRUG ABUSE
SPONSOR(S): REPRESENTATIVE(S) IVAN
JRN-DATE JRN-PG ACTION
02/09/96 2698 (H) READ THE FIRST TIME - REFERRAL(S)
02/09/96 2698 (H) JUDICIARY, FINANCE
02/23/96 (H) JUD AT 1:00 PM CAPITOL 120
02/23/96 (H) MINUTE(JUD)
02/26/96 (H) JUD AT 1:00 PM CAPITOL 120
02/26/96 (H) MINUTE(JUD)
03/08/96 (H) JUD AT 1:00 PM CAPITOL 120
(H) MINUTE(JUD)
03/18/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 479
SHORT TITLE: IMMUNITY FOR EQUINE ACTIVITIES
SPONSOR(S): REPRESENTATIVE(S) G. DAVIS
JRN-DATE JRN-PG ACTION
02/07/96 2650 (H) READ THE FIRST TIME - REFERRAL(S)
02/07/96 2650 (H) LABOR & COMMERCE, JUDICIARY
02/28/96 (H) L&C AT 3:00 PM CAPITOL 17
02/28/96 (H) MINUTE(L&C)
03/06/96 (H) L&C AT 3:00 PM CAPITOL 17
03/08/96 3025 (H) L&C RPT CS(L&C) 3DP 2NR
03/08/96 3025 (H) DP: PORTER, SANDERS, KOTT
03/08/96 3025 (H) NR: ELTON, KUBINA
03/08/96 3026 (H) ZERO FISCAL NOTE (DCED)
03/18/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 318
SHORT TITLE: MENTAL HEALTH TREATMENT DECLARATIONS
SPONSOR(S): REPRESENTATIVE(S) TOOHEY,B.Davis
JRN-DATE JRN-PG ACTION
04/21/95 1427 (H) READ THE FIRST TIME - REFERRAL(S)
04/21/95 1427 (H) HES, JUDICIARY
03/07/96 (H) HES AT 4:00 PM CAPITOL 106
03/07/96 (H) MINUTE(HES)
03/08/96 3021 (H) HES RPT 5DP 1NR
03/08/96 3021 (H) DP: ROKEBERG, BUNDE, TOOHEY, ROBINSON
03/08/96 3021 (H) DP: BRICE
03/08/96 3021 (H) NR: G.DAVIS
03/08/96 3021 (H) ZERO FISCAL NOTE (DHSS)
03/18/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 359
SHORT TITLE: APPOINTMENT PROCESS FOR BDS & COMM'NS
SPONSOR(S): REPRESENTATIVE(S) PORTER,Green
JRN-DATE JRN-PG ACTION
12/29/95 2360 (H) PREFILE RELEASED
01/08/96 2360 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2360 (H) STATE AFFAIRS, JUDICIARY
03/07/96 (H) STA AT 8:00 AM CAPITOL 102
03/07/96 (H) MINUTE(STA)
03/09/96 (H) STA AT 10:00 AM CAPITOL 102
03/11/96 3056 (H) STA RPT 2DP 2NR 1AM
03/11/96 3056 (H) DP: PORTER, GREEN
03/11/96 3056 (H) NR: IVAN, ROBINSON
03/11/96 3056 (H) AM: JAMES
03/11/96 3056 (H) ZERO FISCAL NOTE (GOV)
03/12/96 3099 (H) COSPONSOR(S): GREEN
03/18/96 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SHARON NAHORNEY
Courtwatch Director
Victims for Justice
619 E. Fifth Avenue
Anchorage, Alaska 99501
Telephone: (907) 278-0977
POSITION STATEMENT: Testified regarding confirmation to the
Commission of Judicial Conduct
REPRESENTATIVE IVAN IVAN
Alaska State Legislature
State Capitol, Room 503
Juneau, Alaska 99501-2133
Telephone: (907) 465-4942
POSITION STATEMENT: Testified regarding HB 493 as sponsor
BARBARA BRINK, Esq.
Alaska Public Defenders Agency
900 West 5th, Suite 200
Anchorage, Alaska 99501
Telephone: (907) 264-4400
POSITION STATEMENT: Testified regarding HB 493
SHANNON O'FALLON, Esq.
Human Services Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Provided information on HB 493
DIRK NELSON
Alaska Civil Liberties Union
P.O. Box 2437
Valdez, Alaska 99686
Telephone: (907) 835-5894
POSITION STATEMENT: Testified regarding HB 493
KATHI BURNS, Clinical Director
Northern Lights Recovery Center
P.O. Box 305
Nome, Alaska 99762
Telephone: (907) 443-3312
POSITION STATEMENT: Testified regarding HB 493
DONALD DAPCEVICH, Executive Director
Governor's Advisory Board on Alcoholism
& Drug Abuse
Department of Health & Social Services
P.O. Box 110607
Juneau, Alaska 99801-0607
Telephone: (907) 465-2071
POSITION STATEMENT: Testified regarding HB 493
REPRESENTATIVE GARY DAVIS
Alaska State Legislature
State Capitol, Room 420
Juneau, Alaska 99801-1182
Telephone: (907) 465-2693
POSITION STATEMENT: Testified as sponsor regarding HB 479
REPRESENTATIVE CYNTHIA TOOHEY
Alaska State Legislature
State Capitol, Room 104
Juneau, Alaska 99801-1182
Telephone: (907) 465-4919
POSITION STATEMENT: Testified as sponsor regarding HB 318
LEONARD ABEL, PhD
Mental Health Services Program
Division of Mental Health &
Developmental Disabilities
Department of Health & Social Services
P.O. Box 110620
Juneau, Alaska 99811-0620
Telephone: (907) 465-3370
POSITION STATEMENT: Provided information regarding HB 318
DOROTHY PEAVEY, Executive Director
Mental Health Consumers of Alaska
430 W 7th Ave, #220
Anchorage, Alaska 99501
Telephone: (907) 277-3817
POSITION STATEMENT: Provided information regarding HB 318
RICHARD RAINERY, Executive Director
Alaska Mental Health Board
431 N. Franklin, Suite 101
Juneau, Alaska 99801
Telephone: (907) 465-4765
POSITION STATEMENT: Provided information regarding HB 318
TERRI LAUTERBACH, Esq.
Legislative Legal and Research Services
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Provided information regarding HB 318
ACTION NARRATIVE
TAPE 96-36, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:05 p.m. Members present at the call to order were
Representatives Green, Bunde, Toohey and Davis. Representative
Finkelstein arrived at 1:07 p.m. and Representative Vezey at 1:22
p.m. There were no members absent.
CHAIRMAN PORTER noted that the committee's first order of business
was to consider the confirmation of Sharon Nahorney to the
Commission of Judicial Conduct. He then introduced Ms. Nahorney.
Number 089
SHARON NAHORNEY, Court Watch Director, Victims for Justice,
testified by telephone from Anchorage. She stated that she was
pleased that the governor had asked her to be on the Alaska
Judicial Conduct Commission. She had already served for four years
on this commission and felt as though her Court Watch experience,
along with Victims for Justice had been beneficial. She also felt
as though she had a unique public perspective to bring to this
forum. She asked the legislature to confirm her. Ms. Nahorney
said that this public entity was absolutely vital and has seen a
lot of changes in format as result. She felt as though people were
treated more fairly, with more dignity and respect by having more
vocal people on this commission, which has made a big difference.
REPRESENTATIVE TOOHEY said she was delighted that Ms. Nahorney was
going to accept this appointment again. She felt that Alaska was
a better state for Ms. Nahorney's oversight. Representative Toohey
then made a motion to move the recommendation of Ms. Nahorney to
the Commission of Judicial Conduct to be considered by the House
floor. There being no objection it was so moved.
HB 493 INVOLUNTARY COMMITMENT:ALCOHOL/DRUG ABUSE
Number 330
REPRESENTATIVE IVAN IVAN came forward to present testimony on HB
493 as sponsor. He stated that some concerns arose from the
previous testimony on HB 493 and he noted that these concerns have
been addressed by his staff. Representative Ivan listed all the
entities which came together to discuss changes to this
legislation.
REPRESENTATIVE JOE GREEN made a motion to adopt version (G) of CSHB
493 as the committee's working document. There being no objection
it was so moved.
Number 529
BARBARA BRINK, Attorney, Alaska Public Defenders Agency testified
from Anchorage by teleconference. She stated that she appreciated
the input by the various entities to ensure that this legislation
passed constitutional muster, but she expressed some still
exisiting legal concerns whether or not this legislation would
violate constitutional due process. She noted that this might be
beyond their fixing. She believed the impetus for this bill was to
make it easier for substance abuse counselors and concerned family
members and friends to involuntarily commit someone in order that
the client must participate in treatment.
MS. BRINK stated that normally, before the state can lock up
someone against their will, they have to prove that the state has
a valid and strong interest in locking this person up because the
fundamental rights and liberties requires strict scrutiny. This
means that a person remaining at large or at liberty has to be
balanced against the state's interest in curtailing this liberty.
The previous standard requires that a person has to be
demonstratively shown to be dangerous to themselves or others. The
previous language in the statute requires some proof regarding the
likelihood of an infliction of physical harm on another person.
This is why it was so difficult to lock someone up in requiring
them to have treatment against their will. This is a difficult
standard to meet.
MS. BRINK went on to note that the current standard in this bill
and the CS just adopted is worded so broadly that it has due
process problems. She thought that the concept of dangerousness
was a constitutional requirement that this present bill does not
require. For example, she asked if this legislation covered a
person who is defined to be incapacitated by alcohol or drugs
simply if their judgment is so impaired that they are not making
rational decisions regarding their treatment. This could include
anybody who is a user or an abuser who does not want to go to
treatment. The second prong of the test is whether or not they're
at risk of serious physical harm or illness unless committed, the
"or illness" prong caused concerns for her.
MS. BRINK stated that interpreted broadly this legislation could
include someone who smokes two packs of cigarettes a day. They are
certainly placing themselves in serious risk of harm or illness,
they have demonstrated an increased tolerance for cigarettes and
the drug contained in them, they suffer from withdrawal and it's a
significant habit to their health. By interpreting the language of
this bill at face value, she felt it was not strict enough to pass
constitutional muster. She also noted some procedural safe guards
which were missing, for example, in a civil commitment proceeding
the state has to prove by clear and convincing evidence that a
person should be committed. They have to place someone at the very
closest facility available and they're entitled to a hearing, which
could be a problem. This hearing problem should be corrected,
because under a mental health commitment they are entitled to a
hearing within 72 hours and as Ms. Brink read the CS this could be
up to 10 days after the hearing.
MS. BRINK said that for all these reasons she has legal concerns
about the bill, but as a public defender she also has some policy
concerns. She said that they were talking about a very valuable
and limited resource which was their alcohol treatment facilities.
She has represented many people who fall within these definitions
of alcoholic or drug abuser. Her own personal experience has been
that those people who are going to benefit from treatment are those
who find it within themselves who are self-motivated and finally
reach that point in their lives where they actively seek out the
treatment themselves.
MS. BRINK noted that what they were doing was forcing people who
are not at this willing point into these limited treatment beds and
they were taking those options away from people who might most
benefit from them. She felt as though the success rates for
treatment bear out her personal experience, that people who
actively seek out treatment, who are willing and able benefit from
this treatment. She also felt that this legislation could have an
unfair impact on rural citizens. In many small towns and villages
there are no facilities available. She wondered about the impact
of this bill by taking someone out of their home village and
shipping them to Anchorage.
Number 817
REPRESENTATIVE FINKELSTEIN asked that in her experience did Ms.
Brink know whether or not that the state was putting people through
treatment now, but just in a different form. He asked if they go
through some type of patrol picked up and then placed in a detox
program. He asked if these programs were involuntary as well.
MS. BRINK answered yes, but that this sort of commitment was for a
very limited period of time, up to twelve hours only until they are
no longer so incapacitated. She understood that Juneau has used
the involuntary civil commitment procedure to try to force
treatment on other people, but it has been found not to be a
workable solution in other communities.
Number 890
REPRESENTATIVE FINKELSTEIN understood that detox treatment was for
three days.
MS. BRINK responded that these inebriates can be required to stay
up to 72 hours if someone files a petition.
REPRESENTATIVE TOOHEY stated that she absolutely agreed with Ms.
Brink, unless someone wants to stop drinking it's pointless to put
them anywhere. She thought that the cost of this program was
prohibitive. She asked about a fiscal note with this CS and
although she applauded Representative Ivan's desire to help every
alcoholic, she stated, "you can only take a horse to water, you
can't make them drink."
Number 990
SHANNON O'FALLON, Department of Law, Human Services Section,
testified to the constitutional issues regarding HB 493. She
stated that Ms. Brink was correct about the Supreme Court requiring
some levels of dangerousness in order for the state to commit
someone. The Supreme Court has addressed this issue in the context
of mental health issues and she imagined it would be the same. If
there's someone who suffers from mental illness or from alcoholism
or drug abuse, to the extent it's either making them a danger to
themselves or to others, or incapacitating them to a level that
they can't care for themselves, she felt that the state's interest
in treating these individuals and forcing them into treatment meets
the constitutional requirements.
MS. O'FALLON stated that Ms. Brink may also be right that in the
definition of incapacitated by alcohol or drugs, it may be that
they may need to change an "or" there to "and". This would be on
page 7, line 22. It is probably not enough to have someone be
incapacitated by alcohol or drugs and incapable of making rational
decisions for treatment, this probably isn't enough to commit
someone. There then has to be another level met which would
require that these individuals are unable to care for their basic
needs. If the word "or" after the word treatment was changed to
"and" then this should be sufficient. The level of dangerousness
would be the individual not being able to care for themselves.
This would take care of some of Ms. Brink's concerns.
MS. O'FALLON noted that the issue of proving that someone is a
danger to others under the previous standard is not true. The
standard was an "or" situation as well, incapacitated by alcohol or
a danger to others. It is not necessary to have both.
Number 1123
REPRESENTATIVE TOOHEY asked about the "group" on 4th Avenue in
Anchorage who live in tents as a reference to page 7, line 22 which
outlined "persons basic safety or personal needs, including food,
clothing, shelter, or medical care." She noted that her objective
for food, clothing and shelter is not the same as everybody else.
There are people living in tents and eating out of "whatever." She
added that this was not her norm, but it is certainly the norm for
this group.
CHAIRMAN PORTER noted that the amendment raised by the Department
of Law was small enough and manageable enough to take care of in
committee.
REPRESENTATIVE BUNDE made a motion to move the amendment as noted.
On page 7, line 22 delete the word "or" and replace it with the
word "and". There being no objection it was so moved.
Number 1228
DIRK NELSON, Alaska Civil Liberties Union testified by
teleconference from Valdez. He stated that the Alaska Civil
Liberties Union opposed this bill on the grounds that it expands
the scope of the statute from alcohol to drugs without clearly
defining what drugs are. He used the example of a hyperactive
child taking drugs to help correct their condition. Under this
legislation such a child could theoretically be committed. This
legislation removes harm to others as a standard and (indisc. -
coughing) the words "greatly disabled" were the standard. This
could multiply to an individual being able to function in meeting
their needs or potential harm to themselves or others in an
imminent way. It removes the right to a jury trial in the first
phase. The period of time was changed for someone to be committed
from 90 to 180 days.
MR. NELSON then asked to testify to this legislation not as a
representative of the Alaska Civil Liberties Union, but as an
individual. He noted the disparity of the target populations
within the legislation. A reference in the legislation is made to
alcoholics with an implication of physical dependence, but in
reference to drug abusers there is no indication of physical
addiction or dependence. He noted that there was a great deal of
disparity of defining what is a drug abuser. Drug treatment as a
service is questionable at best regarding it's success. Alaska has
no scientific data regarding the effectiveness.
MR. NELSON pointed out that drug users are the most systemically
discriminated against group in society despite constitutional
rulings stating, for example, that marijuana cultivation or use in
private is not a state legal issue. Inaccurate data has been used
in Luki v. Neighbors and the Treasury Bureau, as well as other
urine testing cases that have depicted drug users as being greatly
responsible for costs to the economic system. He noted the
Firestone Study.
MR. NELSON noted that language in HB 493 states that a refusal of
a physical exam will not be used as evidence as lack of judgment,
yet it mandates that this evidence be entered into the petition and
later considered. Despite an apparent attempt to better define the
original and poorly constructed language in this bill, there
remains a great deal of room for interpretation. It is this type
of interpretation that he fears later will be put to misuse. The
inability to hold a job may be perceived under this bill to include
anyone who is terminated for a urine test without taking into
account whether they were legally eligible to be tested in the
first place.
MR. NELSON noted that previous court decisions have indicated that
forced medical care is not to be administered without there being
some degree of imminent danger of harm to self or others. He
wondered about someone who is wrongly locked up by testimony of a
family member who does not meet the criteria to do so. He
mentioned the cost issue of this legislation. He also used
mortality rates, such as heart disease which kills well over a half
a million people, yet he noted that the government isn't jailing
people for eating fried chicken. Tobacco kills over 450 thousand
people a year and the government still subsidizing this. Alcohol
kills 158 thousand people a year. Illicit substances combined kill
11 thousand people per year, a mere pittance in contrast to the
others, but they seem to be pursuing these people with a vigor,
including taking their jobs away and locking them into
institutions. He said he was greatly concerned about the intent of
this bill.
Number 1607
REPRESENTATIVE BUNDE asked Mr. Nelson if he knew of instances where
chronic alcoholics were a danger to the mental health of others.
MR. NELSON said that yes he had, but this did not meet the criteria
or the intent of the law. Personally, listening to various
political speeches he added was a danger to his mental health, but
this should not give him the opportunity to lock a person up.
Number 1660
KATHI BURNS, Clinical Director, Northern Lights Recovery Center,
testified on HB 493 by teleconference from Nome. She stated that
she represented the Norton Sound region with her testimony. Norton
Sound has the highest suicide rate in Alaska. This rate does not
include the drowning or environmental deaths. Their environmental
deaths, 85 percent of which are from excessive cold and alcohol
related. They have the second highest homicide rate in the state.
They have the third highest poisoning death rate in the state, 76
percent of which are alcohol related. They have the highest
firearm death rate in Alaska and suicide represents 65.2 percent of
the firearm deaths of this suicide rate. The major number of
suicides are alcohol related. Ms. Burns noted that they have 49
times higher alcohol and drug related deaths than in the lower 48
states.
MS. BURNS stated that their concern in the Norton Sound area is
that they have a great deal of alcohol problems in the region and
they do not have a detox facility available for their region. They
would like to see some consideration in the bill to give licensed
clinical social workers or some other qualified personnel the
responsibility of providing some of the court testimony or some of
the work load in order that their physicians won't be overwhelmed
with this particular commitment issue.
Number 1780
MS. O'FALLON said she believed under AS 47.37.170 that a
physician's assistant can do an evaluation. She noted that the
location of this language was at regulation cited as 7 AAC 29.08.0
which states that "an individual performing duties under AS
47.37.170.C as a qualified health practitioner must hold a valid
license under AS.08 as a physician, a physician's assistant or
nurse practitioner." For a 12 hour hold someone other than a
physician can do the evaluation. She thought that Mr. Dapcevich
could speak to broadening the definition of who can do them.
Number 1828
DON DAPCEVICH, Executive Director, Governor's Advisory Board on
Alcoholism & Drug Abuse, Department of Health & Social Services,
said that without a doubt a clinical social worker or a
credentialed chemical dependency person can very well provide the
behavioral clinical data, however, in most cases they deal with
people who are severely debilitated medically as a result of their
use of alcohol or drugs. A medical practitioner would probably
have to speak to the practitioner issues if they have decreased
liver functioning or kidney problems, etc. These are people who
are severely debilitated medically. Generally speaking, to protect
the rights of the person committed, there is an obligation to have
a medical physician to exam the client and provide input to the
courts.
MS. O'FALLON added that with the mental health commitment, under
Title 47, in order to commit someone for 30 days a physician is
also required as part of this procedure, either a physiatrist or a
physician.
Number 1888
REPRESENTATIVE TOOHEY referred to page 2, line 22 and noted that
especially in the rural areas there are village health aids that
are very qualified to be added to this legislation, as well as
nurse practitioners, to at least initiate this treatment. She
noted that they were only allowed a 12 hour hold.
MR. DAPCEVICH noted that the 12 hour time frame was the limited
time which a person can be held in protective custody by the jail.
This 12 hour figure is based on a clinical rather than an
administrative basis. It's not recommended to keep people in jail
who are entering withdrawal. Withdrawal usually begins after about
12 hours. In a detox facility they are allowed to hold someone up
to 72 hours and after this time an individual can refuse treatment.
MR. DAPCEVICH pointed out that the involuntary commitment section
of the statute is to target those people, for example, who had 170
twelve hour holds in a local jail in Fairbanks. He didn't know how
many detox visits this person had and/or, how many aborted
treatments there were, but these are people where if these days are
totaled up, they're either involved in the judicial system or the
medical system on a daily basis. Detox is extremely time consuming
and expensive. The department would do far better to use less
expensive treatment dollars to treat these individuals rather than
to continually cycle them through a detox or jail.
MR. DAPCEVICH stated that what they attempted to do in the last go
around was to make the rest of the statute, not necessarily those
sections involved with involuntary commitment, but to make them
consistent. He noted that slight changes were made in the other
sections, such as dealing with 12 hour holds, just to make the
language consistent throughout the statute. They made no
substantial changes in those other portions of the statute.
MR. DAPCEVICH continued by responding to a question by Chairman
Porter about what defines a drug user. He stated that the
definition is consistent with alcohol. They were speaking to the
title, "An act related to treatment of alcoholism or drug abuse."
The definition in the statute is consistent between alcohol and
drug abuse. It specifically speaks to drug addiction. On page 7,
Section 13 deals with the definition of addiction.
Number 2090
REPRESENTATIVE FINKELSTEIN asked how this definition could be used
to apply and differentiate between nicotine use to crack cocaine.
He asked if these both fell under the definition.
MR. DAPCEVICH clarified that crack cocaine on the one hand meets
the component dealing with a person being unable to make rational
decisions because of impaired mental function. Nicotine does not
impair mental function.
REPRESENTATIVE TOOHEY took exception with this statement. She said
he had never tried to quit.
MR. DAPCEVICH said he didn't speak to trying to quit or addiction,
but to mental functioning in relation to an ability to make
decisions for the need for treatment.
REPRESENTATIVE FINKELSTEIN said that it's all arguable. If someone
is addicted to a substance and they know it will kill them, but yet
they continue to do it. The point was made that a lot of
situations can fall into this. He referred to the definition on
page 3 and said he shared the concerns expressed about this. He
quoted that the person has to be "an alcoholic or drug abuser"
which means they have an addiction level and they then must be
either incapacitated or under a risk of serious physical harm or
illness. He noted that plenty of drugs including legal and illegal
certainly constitute serious physical harm. He thought that this
was a pretty broad category when applied to the world of drugs
whether people are consuming them legally or illegally.
MR. DAPCEVICH noted that the referral early on deals with the issue
of removing a person from physical harm during a 12 hour hold,
which might be done with someone who is not addicted to alcohol or
drugs, or someone who needs (indisc. - coughing) because they are
not able to fend for themselves in terms of their own safety. This
does not speak to addiction at all, but speaks only to protective
custody. When speaking about involuntary commitment, which is a
different portion of the statute it's used in those cases where
there are all the markers for addiction, as well as, the other
portion of the statute dealing with a person being able to provide
for their own safety.
Number 2217
REPRESENTATIVE FINKELSTEIN said that this went to the heart of the
point. This was the issue before them. He read from the
involuntary commitment section and he still didn't see how this
differentiation was made. He again used the example of nicotine
and stated that it meets the requirement for addiction and under
this section the person has to be either incapacitated or who, if
not treated, will be at risk of serious harm or illness. He asked
that if someone smokes 4 packs a day are they not at risk of
serious physical harm or illness.
Number 2303
CHAIRMAN PORTER wondered if they could somehow write this "illegal
drugs" phrase specifically into the legislation so it was more
clear.
MR. DAPCEVICH agreed that they could.
CHAIRMAN PORTER asked if it would be a simple matter to add illicit
drugs or a term like this into the appropriate places through a
conceptual amendment.
REPRESENTATIVE FINKELSTEIN stated that the use of prescription
drugs is a major drug problem.
CHAIRMAN PORTER responded that these are controlled substances and
he didn't really mean illicit, but controlled substances which
would include prescription drugs.
REPRESENTATIVE FINKELSTEIN said that his point was that people are
addicted to prescription drugs just as they are addicted to alcohol
or illegal drugs. They have the same problems and pose the same
danger to society. It's hard to differentiate for purposes of
debate.
Number 2437
REPRESENTATIVE BUNDE made a motion to conceptually amend the bill
to include the term controlled substances where appropriate. There
being no objection amendment number 2 passed.
TAPE 96-36, SIDE B
Number 000
REPRESENTATIVE DAVIS noted that the legislation since the last
meeting didn't sound any different. The scope of it seemed more
broad regarding who can actually be placed in an involuntary
situation. She wanted to know more specifically those areas which
were worked on since the last meeting. Representative Davis also
added that the legislation still did not address the lack of bed
space for these individuals.
Number 061
MR. DAPCEVICH stated that the aims of this legislation was to base
a commitment on sound clinical measures. It ensures that the
courts have the latitude necessary to make treatment decisions
which are appropriate to the severity of the problem before them
with reasonable expectations of success. This legislation protects
the rights of these clients. The legislation is more consistent
now than before in regard to the mental health commitments, as
versus the alcohol and now other drug abuse commitments. The
changes also made this legislation more user friendly for treatment
programs, especially in the bush communities.
MR. DAPCEVICH said that this legislation would not change the
status quo initially. It will take a period of time, in fact
years, to affect the change necessary to have this long impact on
treatment programs. First of all, this is the type of treatment
where they won't bring a commitment if they don't have a bed
available to put a person in. In this way, it's self-limiting.
The expansion of the involuntary commitment time is not an
absolute, but an allowance on an individual basis.
Number 157
REPRESENTATIVE FINKELSTEIN lodged one of his concerns that this
process might be used to solve internal domestic disputes by a
relative.
MR. DAPCEVICH noted that for someone to be unjustly committed would
involve the collusion of a treatment professional, the family
member, and the physicians, as well as, the courts. He thought
that there were safeguards built in to prevent this from happening.
Certainly, on the other hand, the people who are most likely to be
committed by a family member are those who a family member can no
longer handle for whatever reason.
REPRESENTATIVE TOOHEY stated that she had some concerns about the
cost of this program. She asked for the cost figures.
MR. DAPCEVICH noted that there was a fiscal note attached to this
legislation. With response to the cost of this program, they're
bearing these costs right now in the emergency rooms, in the detox
centers and the jails, etc. In response to the statement that
treatment doesn't work for people who don't want treatment there is
a preponderance of empirical evidence which indicates that nearly
everyone who comes forward for treatment is coming forward because
they are being coerced either by their families, the courts, their
employer, etc. Basically, people do not want treatment and success
rates are not necessarily positively correlated between a person's
willingness to undergo treatment.
Number 361
REPRESENTATIVE TOOHEY responded by stating that "the day we said we
will take this on as a medical problem was the day we made a big
mistake...alcoholism should not be lumped into medical problems.
It should be lumped into something other than a disease. It is a
personal problem you have and of course some people have more of a
problem saying no. That to me is our major problem that we've
taken on the care and feeding of a group of people that don't want
care and feeding."
CHAIRMAN PORTER stated that "in all fairness the alternative is
much more dismal from what we're doing right now. This bill is an
attempt to try to do a little better with the alternative. Quite
frankly the U.S. Supreme Court has brought to us by saying that
public intoxication should be decriminalized in the first place.
We had a way of treating people who didn't want to be treated, it
was called the correctional system. We can't do that anymore.
This bill isn't the enemy."
Number 416
REPRESENTATIVE FINKELSTEIN said that he didn't disagree with this
statement, but in the area of drugs they still do have the
correctional system and he could see the logic of this legislation
as it applies to alcohol.
MR. DAPCEVICH stated that there is often a situation which will
present itself where an individual is incapacitated by drugs and
putting themselves and others in harms way. He noted that where an
involuntary commitment is an appropriate option the people involved
cannot prove any drug use or there is no case to be formed for drug
use, but the individual might be addicted to prescription drugs or
crack cocaine where there can be a more legal case made, it is from
a medical and safety standpoint to put them in a treatment facility
rather than jail. This does not in any way affect the legal
consequences of illegal drug use.
REPRESENTATIVE PORTER pointed out the amount of time the criminal
justice system would be saved if an addict went successfully
through this system as an alternative.
Number 570
REPRESENTATIVE GREEN made a motion to move CSHB 493 (G) out of the
House Judiciary Committee with individual recommendations and
attached fiscal note as amended.
REPRESENTATIVE FINKELSTEIN asked if anyone had an interest in an
amendment to leave this legislation to solely alcohol.
Number 602
CHAIRMAN PORTER stated that frankly he would be surprised if very
many pure drug abusers would find themselves in this program. What
this will do is eliminate the debate about how much of a person's
problem is the result of alcohol use or how much is due to their
using drugs at the time of an involuntary commitment hearing. If
they do, this would probably mean they're so far "down the tube"
they would need this program anyway.
REPRESENTATIVE DAVIS said she would be interested in Representative
Finkelstein's proposal, although she said she was convinced that
even though the presenters of the legislation think it would have
an impact, she felt as though this program would not do a whole
lot.
Number 660
CHAIRMAN PORTER said that it was his impression about the function
of this bill is that it's available for a few isolated individual
cases which every community has. It would be for the individuals
described who are going through detox 100 times and literally
spending thousands of dollars in this process. An acholic who has
been sick for a long time doesn't get rational for sometimes three
months. A longer period of involuntary commitment can sometimes
get a person to this point. "We don't have an answer for
alcoholism, if we did, we'd do it."
REPRESENTATIVE FINKELSTEIN said that he wouldn't be offering an
amendment as described.
CHAIRMAN PORTER stated that they had a motion to move this
legislation as described. There being no objection it was so
moved.
HB 479 - IMMUNITY FOR EQUINE ACTIVITIES
Number 728
CHAIRMAN PORTER introduced House Bill 479 and Representative Gary
Davis as sponsor came forward to outline for the committee this
legislation.
REPRESENTATIVE GARY DAVIS stated that he represented District 8, an
areas from Soldotna to Seward and noted that it wasn't the horse
capitol of the state, but it was fairly close. He outlined that HB
479 was a bill to limit the civil liability of persons who are
involved with equine activities throughout the state. He noted
several exclusions in this legislation, which was due to the innate
nature of equine animals. If someone is not familiar with how to
handle these animals there is opportunity for injury and certainly
at no fault of the owners or sponsors of the animals as indicated
in the sponsor statement.
REPRESENTATIVE DAVIS stated that there were a number of exceptions
to the legislation, such as gross negligence and allowing someone
unfamiliar with these activities to participate, as well as, a
provision for spectators and faulty equipment utilized in this
activity as well. He noted that there were a number of definitions
which clarify what is outlined in the legislation.
Number 920
CHAIRMAN PORTER outlined an amendment to HB 478 which would
essentially delete the last half of line 13 on page one, and line
14.
REPRESENTATIVE DAVIS agreed with this amendment as illustrated.
REPRESENTATIVE GREEN offered this amendment number one for
consideration by adding the words "gross, or" on line 11, page 1
and to make the changes as Chairman Porter indicated, beginning
with the middle of line 13 on page one, to delete the remainder of
the sentence, beginning with the phrase, "for purposes of."
Number 980
CHAIRMAN PORTER reiterated this amendment number 1, which basically
amounted to recognizing the inherent risk of equine activities, but
not to include a limitation of liability for gross negligence. The
amendment read as follows:
"(1) gross negligence or reckless or intentional misconduct of the
equine activity sponsor, equine professional, or equine owner, or
agents or employees of the equine activity sponsor, equine
professional, or equine owner;"
There being no objection this amendment was moved.
Number 998
REPRESENTATIVE FINKELSTEIN stated that they see a lot of these
bills with excepted liabilities and asked what it was about horse
activities that should allow for an exception as versus ones for
bicycle activities, for example. What is it that's inherent in
riding a horse that means someone should have less responsibility
for their actions.
REPRESENTATIVE DAVIS noted that there were probably plenty of other
similar activities which exist that should allow for exemptions,
but this equine issue was brought to him by a constituent who deals
with these types of activities. They also found in their research
that a lot of other states have these similar equine laws. There
are a lot of frivolous lawsuits related to equine activities and
presently the people involved with accidents should know better.
Representative Davis stated that there was no "yes or no" answer to
Representative Finkelstein's question.
Number 1102
REPRESENTATIVE BUNDE made a motion to move CSHB 479 (L&C) as
amended from the House Judiciary Committee with attached fiscal
notes and individual recommendations. There was an objection made
by Representative Finkelstein.
REPRESENTATIVE FINKELSTEIN spoke to his objection. He felt as
though there were lots of entities who would like exemptions from
Alaska's liability laws and eventually if they exempt them all,
there will be no liability laws left. People ought to be
responsible for their actions and he saw no reason whey this equine
exemption action should be taken. He added that if they do take
this action, he felt as though they should include other trail
oriented sports activities which are also big in the state.
CHAIRMAN PORTER requested a roll call vote. Representative B.
Davis, Green, Bunde, Toohey and Porter voted yes. Representative
Finkelstein voted no. Chairman Porter then announced that CSHB 479
(L&C) had passed from the House Judiciary Committee.
HB 318 - MENTAL HEALTH TREATMENT DECLARATIONS
Number 1180
CHAIRMAN PORTER then introduced HB 318 and invited Representative
Toohey to paraphrase her sponsor statement regarding this
legislation into the record.
REPRESENTATIVE TOOHEY stated that this bill would allow an
individual to make advanced directives regarding his or her mental
health treatment. The person would need to be of sound mind when
making the declaration which would designate an "attorney in fact"
who would act only when the individual was determined to be
incapable. The directives would address use of psychotropic
medications, electroconvulsive therapy and the length of short-term
admission up to 17 days to a treatment facility.
REPRESENTATIVE TOOHEY continued that this declaration would be in
effect for three years unless the individual became incapable, in
this case it would continue in effect until the individual is no
longer incapable. While an individual is capable he or she can
revoke the declaration in whole or in part at any time. This
declaration gives the individual the opportunity to make his or her
wishes known about the treatments. Ones that have worked in the
past and ones that he or she desires in the future as well as,
treatment that has not worked in the past and would not be desired
in the future.
REPRESENTATIVE TOOHEY noted that this legislation provides for a
substitute decision maker with whom the doctors would consult
should the declaration not be specific enough or should the doctors
recommend a treatment not specified. House Bill 318 is similar to
an Oregon law. In Oregon they found that individuals who had
fought hospitalization and medication in the past, now were more
willing to go to the hospital because they had a declaration in
place and they thought their decisions would be heard.
REPRESENTATIVE TOOHEY summed up by stating that HB 318 is supported
by the Charter North Hospital, the Alaska State Hospital and
Nursing Home Association, Southcentral Counseling Center, the
Alaska Psychological Association, the Mental Health Association in
Alaska, and the Mental Health Consumers of Alaska, as well as the
Department of Health and Social Services.
Number 1335
LEONARD ABEL, PhD, Mental Health Services Program, Department of
Health & Social Services, stated that he thought this was an
important piece of legislation. He said that the department
strongly supports this bill. Personally he became interested in
this issue about 12 years ago when he was working at the
Southcentral Counseling Center in Anchorage. He had a client with
schizophrenia, someone who came under the diagnosis of individuals
who have one or two psychotic episodes in their lifetime and spend
most of their time stabilized. The patient spoke to him on one
occasion and asked if there some kind of document she could sign in
case she had another episode, a document which could direct her to
go to the hospital and get medications. At that time as a
clinician, he had to tell her that no, there was no such vehicle.
This woman knew that if she had another psychotic episode, she
would lose the ability to think logically and rationally. She
would lose the ability to make good decisions about her care and
treatment. She knew that it was likely that she would become
paranoid, that she would be frightened of anyone who tried to help
her.
MR. ABEL continued that once she had a breakdown without this
declaration someone would have to decide that she was a danger to
herself or others, greatly disabled due to this illness and put her
in a hospital against her will. Once at API the staff would
possibly go through days and days of trying to convince her to take
her medication. Eventually she would stabilize. A declaration of
this type says in essence that if someone gets sick and looses
their ability to deal reasonably with a caregiver, that person
would still want to receive help. This person would want to be
given medication or do whatever that would make them stable. At
the same time this would give someone a chance to say, for example,
that thorazine makes them sick and they'd rather not take this
medication. This could be applied to electric shock as well, among
other treatments. It would also be an opportunity to designate
what methods of treatment work and what ones don't.
MR. ABEL added there should be no added cost for this legislation
to the system. It was pointed out that there actually might be a
negative fiscal note. If people can be put into treatment quickly
a lot of the costs associated with commitment hearings and side
trips to local community hospitals enroute to API could be avoided.
He strongly urged the committee to pass this bill.
Number 1609
REPRESENTATIVE GREEN asked about another bill because of it's
possible effect on this legislation now before the committee. He
asked if there was any way that if this legislation was passed it
could be construed into a possible bill that gives the right of an
individual to terminate their own life. If a person is
incapacitated could the "attorney in fact" act in this person's
stead for other things besides treatment of mental illness.
MR. ABEL noted that the title of the bill, "An Act relating to
advance directives for mental health treatment," and the language
throughout the bill states that persons who sign the declaration
are making decisions about mental health treatment. He didn't
think that life or death was mentioned anywhere in this statute.
Number 1686
REPRESENTATIVE VEZEY stated that this was the third time he had
heard this bill and he still didn't understand what they're really
trying to accomplish with this legislation. He pointed out that
anybody can assign a power of attorney to somebody. It seemed that
they were requiring that there be an outside judgment involved if
this feared event happened. Until it's been diagnosed or confirmed
by independent parties the person who holds a power of attorney can
counsel caregivers because they have intimate knowledge of the
intent of their custodial person, but these powers wouldn't go into
effect until there is confirmation that this mental illness has set
in. This was his interpretation of this legislation.
MR. ABEL stated that a person may have a guardian or a conservator
which are different types of appointments for different reasons.
He didn't see this legislation affecting these other types of
relationships. This legislation would appoint a very specific
"attorney in fact" for the narrow purposes of acting on the
person's behalf to acquire mental health treatment.
Number 1850
REPRESENTATIVE VEZEY responded that he understood this "attorney in
fact" can not stand in and act as the individual's guardian until
such time as some independent party makes a determination that
mental illness has set in and the person is not capable of making
decisions. He wasn't sure they were making a big step here.
Without this law a determination is necessary that mental illness
is involved and medical help is needed. Anybody can make a list of
things which outlines their medical history and those treatments
which they don't respond well to. He asked what they were gaining
with a custodian or power of attorney to tell the medical
professionals what the wishes of the patient are when these
professionals are capable of reading a document.
MR. ABEL said that the intent of this statute allows for a lesser
level of disability which grants the "attorney in fact" the power
to direct the treatment lesser than would be necessary for a
commitment hearing.
Number 2030
DOROTHY PEAVEY, Executive Director, Mental Health Consumers of
Alaska, testified by teleconference from Anchorage. She noted that
this legislation was a response to a lot of need which they have
seen for a long time. It gives consumers a means to make their
wishes known and to have some legal validity to these choices at a
time when their decision making is poor and when their ability to
be a good historian is also poor. Currently, there is a standard
of competency which is determined by a court after a hearing. This
legislation provides for a lower standard. This legislation was
designed so that a person would be found incapable by either two
physicians, one of whom has to be a psychiatrist or a physician in
a professional mental health clinic or someone with a master's
degree or higher in the mental health services, especially in the
bush communities. This person would authorize a hospital stay up
to 17 days. The declaration does have a fill in the blank format,
so a person who fills out the declaration could designate that they
only want to be hospitalized for four days before they would have
to go to a commitment hearing, if they desired not to be in the
hospital.
MS. PEAVEY stated that currently, if a person does not wish to be
in the hospital and they have to go to court to be committed, if
they still refuse to take their medication, they have to go to a
medication hearing. Both of these hearings tie up a lot of state
resources, such as a judge, a physiatrist, the attorney general and
a public defender. This can take quite a lot of time before these
hearing may take place. If a declaration is filled out the patient
has already designated the medication they're willing to take in
the event of a relapse. If these drugs are not appropriate, the
doctor has choices, first they can go to the "attorney in fact" and
then make a decision about the medication or if they can't get
permission at this point they can decline to provide services
unless it's an emergency situation. Then they would have to use
good medical judgment.
Number 2333
RICHARD RAINERY, Executive Director, Alaska Mental Health Board
stated that the board supports this legislation. They feel it
provides consumers with an instrument of control over their own
treatment which is currently lacking.
CHAIRMAN PORTER asked about the absence of the definition of "sound
mind" in the bill. He didn't know if there should or shouldn't be,
but it seemed to him that there's an automatic suggestion of a way
to circumvent the intent of this legislation by trying to establish
that the person was not of sound mind when they completed the form,
i.e. they had previous mental health problems. (Additional
comments made by Representative Davies were incomplete due to the
end of tape.)
TAPE 96-37, SIDE A
Number 063
CHAIRMAN PORTER noted that in these situations there was probably
some previous concern about the mental health of the principle, so
to then say at some point subsequent to treatment, but looking
forward to the fact that there may be an episode, is there one
strike against the determination that this person is of sound mind
already. He stated that maybe this issue wasn't worth dealing
with.
Number 122
REPRESENTATIVE BUNDE concurred with Representative Davis and her
point regarding this legislation deals with a mental health
professional and they need to be willing to accept this
professional's definition that this person at one time was
competent to make this judgment through a declaration.
CHAIRMAN PORTER said he didn't intend to create a problem that
makes this more difficult, but to recognize this might happen, so
maybe they should negate an avenue of attack.
Number 225
TERRI LAUTERBACH, Esq., Legislative Legal and Research Services
testified regarding Chairman Porter's question. The declaration of
being of sound mind is in many types of other legal documents, such
as a will. This type of document is not only applied to people
with mental illness episodes, but someone might craft similar
language in a living will for a possible car accident for example.
The restitution of "being of sound mind" is normal, and could be
crafted by a person who has never had a mental illness episode.
She stated that hopefully these people would consult a lawyer. The
form does allow for a disclaimer which states that these are
important decisions and the person should consult a lawyer.
CHAIRMAN PORTER pointed out for the sake of consistency on page 8,
which deals with the affirmation of witnesses and the provision
that witnesses state they know the principle. On the bottom of
page 2, the witnesses again must attest that the principle is known
to them and for consistency he suggested adding the word
"personally" known to both sections. Ms. Lauterbach said that this
couldn't hurt.
Number 485
CHAIRMAN PORTER outlined this change by outlining the following
amendment that on page 3, line 1, insert the word "personally"
before the word known. This amendment would read, "...must attest
that the principal is personally known to them,..."
REPRESENTATIVE VEZEY objected. He stated that the traditional,
customary manner of witnessing a signature in the state of Alaska
is to have a signature notarized. For a person to travel to a
state medical center in Anchorage if they live 400 miles away, it
would be difficult or impossible to find two people who would sign
a statement saying that they personally know the principle. This
why we have notary publics to authenticate such signatures. He
understood what the intent of the motion was, but he's had time to
think and worry about this issue.
Number 609
REPRESENTATIVE BUNDE said he didn't see a problem with this. If he
had to travel to a facility he would bring his declaration with him
which would be already signed by family members or people who know
him. There's a difference between proving who he is and proving
that when he's making decisions about medical care that he really
was in his right mind.
REPRESENTATIVE DAVIS noted that, yes, this declaration would be
signed in advance.
MS. LAUTERBACH understood that what they were attempting to do is
to make two sections of the legislation consistent. If
Representative Vezey had a concern about using these two witnesses
rather than a notary, this is a different kind of amendment which
would deal with different issues.
Number 761
REPRESENTATIVE VEZEY withdrew his objection.
CHAIRMAN PORTER stated that without further objection this
amendment passed.
REPRESENTATIVE DAVIS made a motion to move CSHB 318 (A) with
individual recommendations and the attached fiscal note as amended.
There being no objection it was so moved.
HB 359 - APPOINTMENT PROCESS FOR BDS & COMM'NS
Number 822
PATRICK LOUNSBURY, Staff to Representative Porter presented
information to the committee regarding HB 359. He noted that
version (g) of this legislation was a result of the House State
Affairs Committee meeting and added that version (k) of this same
legislation was before the committee now.
CHAIRMAN PORTER asked if it was appropriate to note that the
difference between these two versions was one word and basically
that this change didn't have a substantive effect on the
legislation.
MR. LOUNSBURY said that this was correct and then referred to page
4, line 12 of work draft (k) and specified that the word "each" was
introduced to clarify that a governor is not required to present
names of persons appointed by a previous governor. This
essentially takes care of any "lame duck" appointments, which is
basically the intent of this bill. The phrase, "by that governor"
was added in as well.
Number 920
REPRESENTATIVE DAVID FINKELSTEIN asked if there was any position
from the administration regarding this legislation.
CHAIRMAN PORTER noted that they had worked with the administration
while presenting this legislation to the State Affairs Committee.
The administration had some major concerns of the administration
which had already been addressed. The existing minor concerns
related to the fact that the legislation requires that forthcoming
appointments are due in a shorter period of time than they used to
be. This requires the administration to do more work in a shorter
period time. Chairman Porter noted again that the administration
had no substantive concerns regarding this legislation as of this
time.
Number 965
REPRESENTATIVE CON BUNDE noted that in the past they've had
problems with individuals slated to serve on boards before they
were actually confirmed.
CHAIRMAN PORTER asked that Mr. Lounsbury be allowed to explain what
this legislation does so that they can get a grasp on that first.
Number 984
MR. LOUNSBURY stated that this legislation would require the
governor to present to the legislature within 30 days of convening,
the names of persons appointed who have previously been unconfirmed
and the names of persons to be appointed, for example, an
appointment made after 30 days of the session while the session is
still in progress would be presented within five calendar days.
This feature, which is basically the main thrust of this
legislation, allows a new governor to appoint new people or
reappoint the interim appointee selected by the previous governor.
MR. LOUNSBURY continued outlining the bill by specific sections.
Section 1 simply conforms the occupational licensing boards under
the purview of this bill and these are boards such as the athletic
commission, board of barbers, commercial services, etc. The next
few sections just add on other boards established under this
legislation's jurisdiction. Section 12 requires that all the
boards conform to a March 1, expiration date of when boards are
appointed or reappointed. This would allow the legislature to deal
with this procedure during session. This would allow the governor
to think about these appointments before and after this date.
Section 13 of this legislation conforms the bill to how the prior
boards dealt with vacancies and would conform to Section 14 of the
bill. Section 14 is the "heart and soul" of the bill. Section 14
begins on page 4, line 8 and provides that any aspect of a general
procedure in this statute can be modified by the legislature for
any board or commission and brought under one umbrella.
MR. LOUNSBURY again reiterated that on page 4, line 12, this
language clarifies that the governor is not required to present
names of persons appointed by a previous governor and that only a
presentment during the session satisfies the presentment
requirement. He further stated that this section allows the
governor to present to the legislature within 30 days of convening,
the names of those people who have not been previously confirmed
and the people who have been recently appointed. The third
sentence of this section provides that an appointment be made after
30 days of the session, ("this is all going to happen in the first
year of catch up, so we can all come under March 1,") that the
appointment made after 30 days of the session while the session is
still in progress has to be presented within five calendar days to
allow the legislature to act on it. On page 5, line 26 it provides
that the duration of an appointment made during the legislature's
interim ends when a new regular session convenes, but this
appointee can be reappointed and presented for the confirmation
process. "So if you catch someone in-between governors this would
allow the new governor to accept the prior governor's appointment
and would allow this to go through if this new governor chose to do
this."
Number 1280
REPRESENTATIVE BUNDE asked if he understand that any appointment
made in the interim even during a governor's term would then only
be a temporary appointment which would have to be reappointed.
MR. LOUNSBURY said this would be true and would expire on the first
day of session.
Number 1299
REPRESENTATIVE CYNTHIA TOOHEY asked about an individual who had
been sitting on a commission for five years and the change has come
about, but her name has never been mentioned, would she be
automatically waived into this seat. If she has not been
reappointed, she has not been removed, but going from one year to
the next, does the omission of a name mean an appointment.
CHAIRMAN PORTER stated that the only names which have to be offered
are new appointments. If someone is appointed for three years and
they are confirmed that first year there is nothing which happens
the second or third year. Chairman Porter noted that Jim Baldwin
from the Department of Law was in attendance if anyone had any
questions of him and then asked Mr. Baldwin if he had characterized
the department's position correctly regarding this legislation.
Number 1374
JAMES BALDWIN, Assistant Attorney General, Governmental Affairs
Section, Department of Law responded that because there were about
1,200 offices which they are required to fill, having a significant
portion of these coming to an end on a date certain would place a
heavy burden on the governor's office to fill these vacancies and
he noted the other legal issues which they already discussed in the
conjunction with the State Affairs Committee hearing which were
really ancillary to the main purpose of the bill.
CHAIRMAN PORTER stated that fundamentally, what this bill is
seeking to do is to eliminate the mess they had a few years back
with an Alaska Public Utilities Commission (APUC) appointment and
the resulting suit is still going on costing everyone a bunch of
money. Basically what this legislation says is that appointments
made after session is over, in any event, and especially by a
governor who is leaving office, are not required to be carried
forward by the next governor. The new governor may or may not
bring a name forward, but that interim appointments "drop dead" if
you will, at the end of the calendar year and may be reappointed by
the governor, each governor, not the previous governor. There is
also a provision which would allow that an appointment that wasn't
otherwise submitted to the legislature in a timely fashion, that
could have been during the session, does not continue so as to
close the loop about being able to circumvent the confirmation
process altogether.
Number 1486
MR. LOUNSBURY added that regarding the heavy work load burden to
the governor's office, since the boards are graduated, according to
his calculations the worst case scenario would be about 80
appointments required in those specific months for each board
affected.
CHAIRMAN PORTER noted that bringing these appointments together
during the session obviously is so they are confirmed and not
spread out.
Number 1527
REPRESENTATIVE FINKELSTEIN asked if it would be a reasonable
compromise to make this period 45 days.
CHAIRMAN PORTER didn't think the concern was necessarily the length
of time, but more the fact that all the proposed appointment names
would be required all at once.
Number 1557
MR. BALDWIN did agree with this observation.
REPRESENTATIVE FINKELSTEIN wished to confirm with Mr. Baldwin that
he was not opposed to the bill.
MR. BALDWIN said he would merely repeat the testimony presented in
the State Affairs Committee meeting. The department favors the
concept (indisc. - whispering and paper shuffling) and this bill
would clear up the legal issues. This bill would agree with the
state's position presently in court, however there are some
problems in the way the bill would operate. The department is in
favor of parts of the bill to clear up the legal entanglements and
stated that there are certain elements in the governor's office who
are not happy with the bill and he was asked to convey this to
Chairman Porter. Chairman Porter said that he could not
accommodate their concerns regarding the deadline option. The
Department of Law suggested an alternative, but it ran against a
bigger issue which had to do with a concern about short term
appointments and how this would be undermined. He said he was not
authorized to say that they support the bill, but the
administration has asked for many changes to this bill and he would
estimate that three quarters of these have been addressed.
Number 1695
REPRESENTATIVE BUNDE made a motion to move CSHB 359 (k) as the
committees's adopted working version. There being no objection it
was so moved. Representative Bunde then made a motion to move HB
359 (k) from the House Judiciary Committee with individual
recommendations and zero fiscal note. There being no objection it
was so moved.
Number 1695
CHAIRMAN PORTER adjourned the House Judiciary Committee meeting at
3:07 p.m.
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