Legislature(1995 - 1996)
04/22/1996 01:35 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 22, 1996
1:35 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
COMMITTEE CALENDAR
SENATE BILL 52
"An Act providing for an advisory vote on the issue of capital
punishment."
- CSSS SB 52(JUD) FAILED TO PASS FROM COMMITTEE
HOUSE BILL 481
"An Act authorizing capital punishment, classifying murder in the
first degree as a capital felony, and allowing the imposition of
the death penalty when certain of those murders are committed
against children; establishing sentencing procedures for capital
felonies; and amending Rules 32, 32.1, and 32.3, Alaska Rules of
Criminal Procedure, and Rules 204, 209, 210, and 212, Alaska Rules
of Appellate Procedure."
- HB 481 FAILED TO PASS FROM COMMITTEE
SENATE BILL 289
"An Act relating to runaways, other minors, and their families or
legal custodians; and amending Rule 7, Alaska Delinquency Rules."
- CSSB 289(JUD) PASSED OUT OF COMMITTEE
SENATE BILL 263
"An Act relating to copyright licensing and royalties; and
providing for an effective date."
- CSSB 263(JUD) am H PASSED OUT OF COMMITTEE
SENATE BILL 321
"An Act relating to incompetency to stand trial."
- CSSB 321(JUD) PASSED OUT OF COMMITTEE
PREVIOUS ACTION
BILL: SB 52
SHORT TITLE: ADVISORY VOTE ON CAPITAL PUNISHMENT
BILL VERSION: CSSSSB 52(JUD)
SPONSOR(S): SENATOR(S) TAYLOR,Pearce; REPRESENTATIVE(S) Rokeberg
JRN-DATE JRN-PG ACTION
01/25/95 83 (S) READ THE FIRST TIME - REFERRAL(S)
01/25/95 83 (S) JUD, FIN
02/09/95 222 (S) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
02/09/95 222 (S) READ THE FIRST TIME - REFERRAL(S)
02/09/95 222 (S) JUD, FIN
02/07/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/07/96 (S) MINUTE(JUD)
03/06/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
03/06/96 (S) MINUTE(JUD)
03/12/96 2706 (S) JUD RPT CS 3DP 1DNP NEW TITLE
03/12/96 2707 (S) FISCAL NOTE TO SB & CS (GOV)
03/26/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/28/96 2939 (S) FIN RPT 4DP 2NR (JUD) CS
03/28/96 2939 (S) ZERO FNS (DPS, COURT)
03/28/96 2939 (S) PREVIOUS FN (GOV)
03/29/96 (S) RLS AT 12:05 PM FAHRENKAMP RM 203
03/29/96 (S) MINUTE(RLS)
04/09/96 3092 (S) RULES RPT 3CAL 2NR 4/9/96
04/09/96 3093 (S) READ THE SECOND TIME
04/09/96 3093 (S) JUD CS ADOPTED UNAN CONSENT
04/09/96 3093 (S) ADVANCE TO THIRD READING FLD Y11 N5 E4
04/09/96 3094 (S) THIRD READING 4/10 CALENDAR
04/10/96 3123 (S) READ THE THIRD TIME CSSSSB 52(JUD)
04/10/96 3124 (S) MOTION TO RETURN TO 2ND RDG FOR AM 1
04/10/96 3124 (S) RETURN TO SECOND FOR AM 1 Y14 N6
04/10/96 3124 (S) AM NO 1 FAILED Y9 N11
04/10/96 3125 (S) AUTOMATICALLY IN THIRD READING
04/10/96 3126 (S) PASSED Y12 N8
04/10/96 3126 (S) DUNCAN NOTICE OF RECONSIDERATION
04/11/96 3175 (S) TRANSMITTED TO (H)
04/12/96 3689 (H) READ THE FIRST TIME - REFERRAL(S)
04/12/96 3689 (H) JUDICIARY, FINANCE
04/15/96 (H) JUD AT 1:00 PM CAPITOL 120
04/15/96 (H) MINUTE(JUD)
04/15/96 3784 (H) CROSS SPONSOR(S): ROKEBERG
04/22/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 481
SHORT TITLE: CAPITAL PUNISHMENT FOR CHILD MURDER
SPONSOR(S): REPRESENTATIVE(S) MASEK,Kohring,Ogan
JRN-DATE JRN-PG ACTION
02/09/96 2686 (H) READ THE FIRST TIME - REFERRAL(S)
02/09/96 2686 (H) STATE AFFAIRS, JUDICIARY
02/29/96 2972 (H) STA REFERRAL WAIVED
02/29/96 2972 (H) REFERRED TO JUDICIARY
04/15/96 (H) JUD AT 1:00 PM CAPITOL 120
04/15/96 (H) MINUTE(JUD)
04/22/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 289
SHORT TITLE: MINORS, ESP. RUNAWAYS, & THEIR FAMILIES
BILL VERSION: CSSB 289(FIN) AM
SPONSOR(S): SENATOR(S)
FRANK,Miller,R.Phillips,Halford,Green,Taylor,Leman
Kelly,Torgerson,Hoffman,Pearce,Rieger; REPRESENTATIVE(S)
Kelly,Therriault
JRN-DATE JRN-PG ACTION
02/12/96 2382 (S) READ THE FIRST TIME - REFERRAL(S)
02/12/96 2382 (S) JUDICIARY
02/26/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/26/96 (S) MINUTE(JUD)
02/26/96 (S) MINUTE(JUD)
02/28/96 (S) MINUTE(JUD)
02/28/96 2578 (S) COSPONSOR(S): GREEN, TAYLOR
02/29/96 2597 (S) JUD RPT CS 3DP 1NR SAME TITLE
02/29/96 2597 (S) INDETERMINATE FISCAL NOTE SB & CS
(DPS)
02/29/96 2597 (S) ZERO FISCAL NOTES SB & CS (ADM-2, LAW)
03/06/96 (S) RLS AT 12:45 PM FAHRENKAMP RM 203
03/06/96 (S) MINUTE(RLS)
03/06/96 2636 (S) FIN REFERRAL ADDED-MOVED FROM RLS TO
FIN
03/12/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/19/96 (S) FIN AT 9:30 AM SENATE FINANCE 532
03/27/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/28/96 (S) FIN AT 8:30 AM SENATE FINANCE 532
04/03/96 (S) RLS AT 1:15 PM FAHRENKAMP RM 203
04/03/96 3043 (S) FIN RPT CS 5DP 2NR NEW TITLE
04/03/96 3043 (S) FISCAL NOTES TO CS (DHSS-5)
04/03/96 3043 (S) INDETERMINATE FN TO CS (DPS)
04/03/96 3043 (S) ZERO FN TO CS (LAW)
04/03/96 3043 (S) PREVIOUS ZERO FNS (ADM-2)
04/04/96 3065 (S) FN TO FIN CS REPLACES 4/3 ZERO FN (LAW)
04/09/96 3093 (S) FISCAL NOTE (COURT)
04/09/96 3092 (S) RULES TO CALENDAR 4/9/96
04/09/96 3096 (S) READ THE SECOND TIME
04/09/96 3096 (S) FIN CS ADOPTED Y11 N5 E4
04/09/96 3096 (S) ADVANCE TO THIRD READING FLD Y11 N5 E4
04/09/96 3097 (S) THIRD READING 4/10 CALENDAR
04/09/96 3096 (S) COSPONSOR(S): LEMAN, KELLY,
04/09/96 3096 (S) TORGERSON, HOFFMAN, PEARCE, RIEGER
04/10/96 3128 (S) READ THE THIRD TIME CSSB 289(FIN)
04/10/96 3128 (S) PASSED Y14 N6
04/10/96 3129 (S) COURT RULE FAILED Y13 N7
04/10/96 3129 (S) DUNCAN NOTICE OF RECONSIDERATION
04/11/96 3159 (S) RECON TAKEN UP - IN THIRD READING
04/11/96 3160 (S) RETURN TO SECOND FOR AM 1 UNAN CONSENT
04/11/96 3160 (S) AM NO 1 ADOPTED UNAN CONSENT
04/11/96 3160 (S) AUTOMATICALLY IN THIRD READING
04/11/96 3160 (S) PASSED ON RECONSIDERATION Y20 N-
04/11/96 3160 (S) COURT RULE(S) SAME AS PASSAGE
04/11/96 3176 (S) TRANSMITTED TO (H)
04/12/96 3690 (H) READ THE FIRST TIME - REFERRAL(S)
04/12/96 3690 (H) JUDICIARY, FINANCE
04/12/96 3720 (H) CROSS SPONSOR(S): KELLY
04/17/96 (H) JUD AT 1:00 PM CAPITOL 120
04/18/96 3867 (H) CROSS SPONSOR(S): THERRIAULT
04/19/96 (H) JUD AT 1:00 PM CAPITOL 120
04/19/96 (H) MINUTE(JUD)
04/22/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 263
SHORT TITLE: COPYRIGHT ROYALTIES AND LICENSING
BILL VERSION: CSSB 263(JUD)
SPONSOR(S): LABOR & COMMERCE
JRN-DATE JRN-PG ACTION
02/07/96 2324 (S) READ THE FIRST TIME - REFERRAL(S)
02/07/96 2324 (S) JUDICIARY
02/12/96 (S) JUD AT 2:10 PM BELTZ ROOM 211
04/03/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
04/03/96 (S) MINUTE(JUD)
04/09/96 3091 (S) JUD RPT CS 3DP 1NR SAME TITLE
04/09/96 3091 (S) ZERO FISCAL NOTE (LAW)
04/10/96 (S) RLS AT 10:50 AM FAHRENKAMP RM 203
04/11/96 3155 (S) RULES TO CALENDAR 4/11/96
04/11/96 3158 (S) READ THE SECOND TIME
04/11/96 3158 (S) JUD CS ADOPTED UNAN CONSENT
04/11/96 3158 (S) ADVANCED TO THIRD READING UNAN CONSENT
04/11/96 3158 (S) READ THE THIRD TIME CSSB 263(JUD)
04/11/96 3158 (S) PASSED Y18 N2
04/11/96 3158 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
04/11/96 3159 (S) ELLIS NOTICE OF RECONSIDERATION
04/12/96 3219 (S) RECONSIDERATION NOT TAKEN UP
04/12/96 3220 (S) TRANSMITTED TO (H)
04/15/96 3733 (H) READ THE FIRST TIME - REFERRAL(S)
04/15/96 3733 (H) JUDICIARY
04/17/96 (H) JUD AT 1:00 PM CAPITOL 120
04/19/96 (H) JUD AT 1:00 PM CAPITOL 120
04/19/96 (H) MINUTE(JUD)
BILL: SB 321
SHORT TITLE: CRIM DEFENDANT INCOMPETENT TO STAND TRIAL
BILL VERSION: HCS SB 321(JUD)
SPONSOR(S): JUDICIARY
JRN-DATE JRN-PG ACTION
04/04/96 3066 (S) READ THE FIRST TIME - REFERRAL(S)
04/04/96 3066 (S) JUDICIARY
04/10/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
04/11/96 (S) RLS AT 2:35 PM FAHRENKAMP RM 203
04/11/96 3150 (S) JUD RPT 3DP 1DNP 1AM
04/11/96 3150 (S) FISCAL NOTE (DHSS)
04/11/96 3150 (S) ZERO FISCAL NOTES (LAW, ADM)
04/12/96 3193 (S) FISCAL NOTE (COURT)
04/12/96 3193 (S) RULES TO CALENDAR 4/12/96
04/12/96 3198 (S) READ THE SECOND TIME
04/12/96 3198 (S) ADVANCED TO THIRD READING UNAN CONSENT
04/12/96 3198 (S) READ THE THIRD TIME SB 321
04/12/96 3199 (S) PASSED Y17 N2 E1
04/12/96 3199 (S) DUNCAN NOTICE OF RECONSIDERATION
04/15/96 3246 (S) HELD TO 4/16/96
04/16/96 3263 (S) RECON TAKEN UP - IN THIRD READING
04/16/96 3264 (S) RETURN TO SECOND FOR AM 1 UNAN CONSENT
04/16/96 3264 (S) AM NO 1 MOVED BY TAYLOR & ELLIS
04/16/96 3264 (S) AM NO 1 ADOPTED Y19 N1
04/16/96 3267 (S) AUTOMATICALLY IN THIRD READING
04/16/96 3267 (S) AM NO 2 NOT OFFERED
04/16/96 3268 (S) RETURN TO SECOND FOR AM 3 UNAN CONSENT
04/16/96 3268 (S) AM NO 3 MOVED BY TAYLOR
04/16/96 3268 (S) AM NO 3 ADOPTED UNAN CONSENT
04/16/96 3268 (S) AUTOMATICALLY IN THIRD READING
04/16/96 3268 (S) RETURN TO SECOND FOR AM 4 UNAN CONSENT
04/16/96 3268 (S) AM NO 4 MOVED BY REIGER
04/16/96 3268 (S) AM NO 4 FAILED Y3 N17
04/16/96 3269 (S) AUTOMATICALLY IN THIRD READING
04/16/96 3269 (S) PASSED ON RECONSIDERATION Y19 N1
04/16/96 3329 (S) TRANSMITTED TO (H)
04/17/96 3809 (H) READ THE FIRST TIME - REFERRAL(S)
04/17/96 3809 (H) JUDICIARY
04/19/96 (H) JUD AT 1:00 PM CAPITOL 120
04/19/96 (H) MINUTE(JUD)
WITNESS REGISTER
ALLISON GORDON, Legislative Aide
Senator Steve Frank
Alaska State Legislature
State Capitol, Room 518
Juneau, Alaska 99801-1182
Telephone: (907) 465-3709
POSITION STATEMENT: Testified on SB 289
ANNIE CARPENETI
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on SB 289
L. DIANE WORLEY, Director
Division of Family & Youth Services
Department of Health & Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-3191
POSITION STATEMENT: Testified on SB 289
DONNA SCHULTZ, Juvenile Probation Officer
Division of Family & Youth Services
Department of Health & Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-3191
POSITION STATEMENT: Testified on SB 289
SHERMAN ERNOUF, Legislative Aide
Senate Labor & Commerce Committee
Alaska State Legislature
State Capitol, Room 101
Juneau, Alaska 99801-1182
Telephone: (907) 465-3822
POSITION STATEMENT: Testified on SB 263
JOE AMBROSE, Legislative Assistant
Senator Robin Taylor
Alaska State Legislature
State Capitol, Room 30
Juneau, Alaska 99801-1182
Telephone: (907) 465-3873
POSITION STATEMENT: Testified on SB 321
DEAN J. GUANELI
Chief Assistant Attorney General
Department of Law, Criminal Division
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-4043
POSITION STATEMENT: Testified on SB 321
ACTION NARRATIVE
TAPE 96-56, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:35 p.m. Members present at the call to order were
Representatives Green, Bunde, Toohey, Vezey, Davis and Finkelstein.
SB - 52 ADVISORY VOTE ON CAPITAL PUNISHMENT
HB - 481 CAPITAL PUNISHMENT FOR CHILD MURDER
CHAIRMAN PORTER then referred to SB 52 and HB 481. These bills
were up for consideration. Testimony was taken at the last
Judiciary meeting and the public testimony was closed.
Number 134
REPRESENTATIVE CON BUNDE made a motion to move SB 52 from the House
Judiciary Committee with individual recommendations.
REPRESENTATIVE CYNTHIA TOOHEY objected. A roll call vote was
taken. Representatives Bunde, Vezey and Porter voted yes.
Representatives Toohey, Davis, Finkelstein and Green voted no. SB
52 failed to move from the House Judiciary Committee.
Number 215
REPRESENTATIVE BUNDE made a motion to move HB 481 from the House
Judiciary Committee with individual recommendations.
REPRESENTATIVE TOOHEY objected. A roll call vote was taken.
Representatives Vezey and Bunde voted yes. Representatives Vezey
and Bunde voted yes. Representatives Toohey, Davis, Finkelstein,
Green and Porter voted no. HB 481 failed to move from the House
Judiciary Committee.
SB 289 - MINORS, ESP. RUNAWAYS, & THEIR FAMILIES
Number 365
ALLISON GORDON, Legislative Assistant to Senator Steve Frank came
forward to testify on SB 289. She stated that they had prepared a
few amendments based on the last hearing which would satisfy the
Department of Health & Social Services, Covenant House Alaska and
other facilities like the Covenant House. The first amendment
prepared would reflect the Department's fiscal note and their
wishes to grant or contract with residential care facilities within
communities for the secure placement of run aways, the idea being
to keep run aways out of the already crowded detention centers and
away from children who have committed more serious crimes. This
would still allow detention of habitual run aways in a secure
environment pending a detention hearing which would assess the best
interests of this child.
MS. GORDON noted that there were, taken out of the guide for
implementing the comprehensive strategy for serious violent and
chronic juvenile offenders, references to community based
residential facilities throughout the legislation. She noted that
this was something already in place in other states, in their
community based residential facilities.
CHAIRMAN PORTER asked if this would potentially have an effect on
the fiscal note which is quite large.
MS. GORDON offered that this was based on the department's fiscal
note, based on her understanding of their fiscal note.
CHAIRMAN PORTER thought that one of the department's concerns was
that they would have to build new secured facilities.
MS. GORDON stated that they thought they would need 20 new secure
placement beds. She was not sure if they would need to upgrade
certain existing facilities in some communities to meet
regulations.
Number 593
REPRESENTATIVE BUNDE made a motion to move amendment number one as
described. Representative Finkelstein requested a response from
the department before making a decision. Chairman Porter agreed
and requested that they review the amendments prior to this
response.
MS. GORDON then outlined amendment number two. This amendment
addressed the concerns of Covenant House, an organization which is
funded by private donations and federal grants as opposed to state
funds. They receive a very small amount of state funding. The
department's fiscal note reflects their intent to convert six state
funded facilities to semi-secure. Covenant House was not one of
them. The legislation as it's written gives the authority to the
department to develop regulations regarding requirements for
compliance. Covenant House was not comfortable with the fact that
this would be left up to the department to decide about who would
be forced to comply. This fiscal note would reflect that a
facility which receives an amount in the excess of one quarter of
their program's cost shall maintain semi-secure portions, meaning
that, if they aren't a state funded facility they don't necessarily
have to maintain portions of semi-secure.
CHAIRMAN PORTER noted that as a practical matter this would put
Covenant House in the exception area.
MS. GORDON responded that yes, it would. In the bill itself it
states that on page 5, beginning on line 10, the officer will give
highest priority for taking the minor to a facility that is semi-
secure which would lead one to believe that there would be
facilities which don't have semi-secure portions, these other
facilities which are not for habitual run aways.
Number 760
REPRESENTATIVE FINKELSTEIN stated that he did still have a concern
over the "sending to jail" circumstance and he was hoping to get
the department's testimony on what the existing conditions they can
ever detain someone are, especially for chronic run aways.
Number 815
ANNE CARPENETI, Assistant Attorney General, Department of Law
testified on SB 289. She requested to speak to the criminal
ramifications of this legislation. The Department had two
comments. The first dealt with the section about contributing to
the delinquency of a minor on page 2, line 30. Paragraph (a) (3)
prohibits a person over the age of 19 encouraging, inducing, or
causing a person under 16 to be repeatedly absent from school. The
statute presently reads "without just cause." The Senate Finance
Committee removed this phrase "just cause," and inserted the
"permission of the parents, the child's parent, guardian or
custodian." The Department objects to this because there is no
reason why a parent should not be subject to prosecution for
contributing to the delinquency of a minor if he or she engages in
conduct which actually induces or aids his or her child to stay
away from school. There is a procedure under the delinquency
statutes, but this is not as serious as the consequences of
prosecution under this statute. By adding this permission of the
child's parent, guardian or custodian they would essentially be
removing the possibility of prosecuting the parent under this
statute. The Department would recommend they remove the change in
paragraph (a) (3) and leave it to be "just cause."
MS. CARPENETI stated that their second concern dealt with paragraph
(4). The department had worked with the sponsor and his aide with
this change in the delinquency statute under paragraph (4), on page
2, line 31 and on page 3, lines 1 through 11. Generally they
thought that this was a good modification to be made to the
statute, but she had one request for an additional change. They
originally drafted it on line one, to read, "under eighteen years
of age to be absent from the custody of a parent, guardian, or
custodian without the knowledge or permission of the parent,
guardian, or custodian." This was removed from the Senate Finance
Committee with the very logical justification that permission
includes knowledge, but her prosecutors tell her that it's easier
to prove knowledge than it is permission. In proving the state's
case beyond a reasonable doubt the state could base it's case on
proof beyond a reasonable knowledge rather than permission. She
didn't think this took away from the statute.
Number 1096
MS. GORDON responded to Ms. Carpeneti's concern. She noted that
they had worked with the department of law on these changes
contributing to the delinquency of a minor statute. They
appreciated the input which they received, especially on
subparagraph (4) which was a good change. They've had overwhelming
support and no opposition to this change of the bill. Regarding
the knowledge or permission they would object to changing it back
to it's original language. They felt as though there knowledge
exists if someone is given permission. Ms. Gordon spoke
specifically about a mother who's daughter was a runaway. Her
daughter would leave and say she would be back at a particular
time, but never returned. The mother said she would not be sure
where knowledge comes to play, is she suppose to report her
daughter as a runaway immediately, what type of time frame does
this give her? The daughter obviously didn't have the permission,
but the mother did have the knowledge that her daughter had not
returned home as expected.
Number 1177
CHAIRMAN PORTER stated that he understood what she was saying, but
that what they were referring to was a different section of the
law. What they were referring to was the delinquency of a minor.
In committee what they try to provide is, "if it is that we have
decided from a policy standpoint that that's going to be a crime,
we want to give the prosecutors and law enforcement as many tools
as they can have to make sure that they can accomplish that, so if
the Department of Law says it would be easier for them to establish
that crime has occurred with only having to establish knowledge as
opposed to permission, it isn't the state of mind of the parent
that's in question here, it is what it is that the prosecution can
prove to a jury. Because the fact that there is sometimes a lack
of understanding on the part of the parent as to what it was that
they're knowledge was, whether they had actually given permission
or not, it would be an easier thing to prove to have 'knowledge or'
as opposed to just permission. It makes it a tougher standard to
prove than if" (indisc. - trailed off.) He didn't think that
leaving these phrases in would affect the position which Ms. Gordon
stated. It would just add to the prosecution.
Number 1254
MS. GORDON stated that in relation to subsection (3) about the
"just cause" language. They would object to putting this back in.
They feel parents are held accountable through truancy laws and
there really isn't a "just cause" for encouraging a child to be
repeatedly absent from school. They feel it's a stronger statute
the way it's written in this version.
CHAIRMAN PORTER asked if a parent required their child to not
attend school, that this could be an element at least in
contributing to the delinquency of a minor.
MS. GORDON stated yes.
CHAIRMAN PORTER pointed out that by this wording they are
eliminating this from being an element, because they're saying that
repeated absences with the permission of a parent is o.k.
MS. GORDON stated certainly not and she stated that this where
Alaska's truancy laws step in.
CHAIRMAN PORTER again noted that this was the section dealing with
contributing to the delinquency of a minor as a crime as opposed to
the truancy statute.
MS. GORDON stated that the language of "just cause" creates a loop-
hole where the prosecution is non-existent.
Number 1340
CHAIRMAN PORTER outlined the two suggestions from the Department of
Law. He asked what the wish of the committee was.
Number 1360
REPRESENTATIVE BUNDE made a motion to move amendment number one
which would consist that on page 2, line 30 to strike the following
language, "the permission of the child's parent, guardian, or
custodian," and insert the phrase "just cause," and on page 3, line
1 after the word 'the' to insert the phrase "knowledge or
permission." There being no objection, it was so moved.
Number 1420
L. DIANE WORLEY, Director, Division of Family & Youth Services,
Department of Health & Social Services testified on SB 289 and
responded to the two amendments before the committee previously
discussed by Ms. Gordon. She stated that the department does have
some concerns and initially addressed amendment number 3. This
amendment would establish two classes of run away shelters in
Alaska. This amendment was developed to waive Covenant House from
the necessity to become a semi-secure facility since this is
outside of their philosophy. They ran some figures on all of their
facilities around the state. Covenant House deals with eighty-four
percent of the state's run aways. "By introducing this amendment
we have eliminated pretty much most of the run aways who deal with
our run away programs from being exempt from this law, because the
way the bill reads is that they would have to run from a semi-
secure facility which would not be Covenant House because they are
saying they would not become semi-secure and they would then not be
part of the later lock-up and arrest for running away from a semi-
secure facility." She wondered why if this was such a good idea
why were they eliminating the majority of their run aways from this
bill.
MS. WORLEY quoted from the text which discussed the amendments,
"the department's fiscal note reflects their intent to convert six
state funded facilities to semi-secure." Their fiscal note was to
allow this money to be available if the facilities chose to be
semi-secure. All of the facilities have not said that they would
even want to become semi-secure. If these other state funded
facilities said they would not want to become secure, but that
their philosophy was volunteerism, they would then loose their
state funding whereas Covenant House because they don't have state
funding could continue operating in this way. This sets up an
inequity in their facilities and their ability to provide equitable
services across the board for all of their run aways.
MS. WORLEY referred to the other amendment which ties back into the
definition of what they were talking about. Currently there are
run away shelters which are voluntary, they are not semi-secure.
These facilities are staff secure which means that if the child
runs again, there is not a quick way to know that they've left the
facilities. Many of the state's facilities have no problem with
becoming semi-secure, but when they get into secure facilities
currently they do not have any locked secure facilities for run
aways, except for state run youth facilities for adjudicated
delinquents. The way this legislation has now been changed it
would take the current residential care facilities which are
treatment programs for delinquent youth with mental health problems
placed in these residential care facilities and converting them to
essentially 48 lock ups for run aways. This totally changes what
their residential care programs will be and the department did not
ever anticipate converting these. The department drafted their
last fiscal note to establish up to 20 new beds which would be
locked facilities. Potentially these beds could be placed in
existing facilities, but from talking with the funded facilities
most of them are not interested in going with this route. What
they are looking at is to establish 5 beds in Fairbanks, 5 in
Juneau and 10 in Anchorage.
MS. WORLEY stated that if they pass this into legislation, first of
all, they don't have current regulations which allow them to fund
locked facilities. New regulations would have to be established.
Then they would have to go through an Request for Proposal (RFP)
and granting out money. This would establish a lag time between
when they would have locked facilities available for run aways. If
this bill is passed with this lag time she asked where these run
aways would go to be detained in the interim. Her guess would be
the state's five locked facilities with delinquent youth. These
are the department's concerns.
Number 1715
CHAIRMAN PORTER stated that he couldn't let this go and noted that
the department should do a better job with their math when
allotting beds to their facilities. He pointed out that the
Judiciary Committee was made up of all Anchorage representatives.
He questioned the 5-10-5 equation which probably had no relevance
to need. It should be more like 1-2-17, with Anchorage on the
heavier side.
MS. WORLEY stated that in reality if they were developing a system
with one locked bed in a facility, it's not very cost efficient.
Number 1747
REPRESENTATIVE GREEN asked, "if you have a few beds as opposed to
the whole process now, does that do the same thing that you don't
want done within the facility, in other words, you don't want a
lock up, you want, what I thought I heard you say, kind of goes
against the principle of what you're trying to do there, but almost
that way, because we've got these 5, or 10 over here which are lock
ups, so we're really a pretty easy going group here, we want you to
regain your responsibility in society, but not quite because we've
got some of your peers over here. Is that a dual standard? It
seemed to me that you were concerned about full lock up or secure,
excuse me, and yet you want to have some security."
MS. WORLEY stated that she was not quite sure she understood the
question, but responded that they do not want to criminalize run
aways. They don't feel as though this is philosophically where
they need to be going in this state. They understand that the run
away problem is a big one and they want to give parents more
authority to get their children back. They feel that through the
semi-secure process where if the facilities that the state
currently funds choose to become semi-secure, this would mean they
would put alarm systems on the doors, the staff would know very
quickly if someone ran. In some cases these systems might secure
children. The department felt as though the semi-secure concept
can meet their needs and can assist in them responding more quickly
and assist them in getting the information out to pick the children
up or getting them back to the facility or their homes. The state
does not philosophically support holding children in a lock up
facility and detaining them for running away. The state supports
the semi-secure and they support the strengthening of the family's
role in this process, they support getting services to these
families, but they don't feel the lock up concept is conducive.
They see this as slowing down the process.
Number 1883
CHAIRMAN PORTER asked under current law when does a chronic run
away now end up in a secure facilities, or do they ever?
MS. WORLEY responded if they commit a delinquent act and become an
adjudicated delinquent then they would be housed in a lock up
facility.
CHAIRMAN PORTER asked about a repeat run away and where would they
end up?
MS. WORLEY said that they could certainly end up in a short term
detention, but they wouldn't be placed in a permanent lock up.
Number 1915
DONNA SCHULTZ, Juvenile Probation Officer, Division of Family &
Youth Services, Department of Health & Social Services testified on
SB 289. One of the ways a Child in Need of Aid or a chronic run
away can get into secure detention is through a valid court order.
A first time run away does not come under this auspicious, but it
takes a child who runs several times to come before the court. If
the court states in an order that they are to not to leave
placement and they do, then this child can be detained.
Number 1949
CHAIRMAN PORTER recollected on occasion that this had occurred.
MS. SCHULTZ said that this was not used a lot.
Number 1950
REPRESENTATIVE GREEN asked what the percent of repeat runaways was.
MS. SCHULTZ said that maybe 50 percent.
MS. WORLEY noted that when speaking to Diedre Phayer of Covenant
House she said about 64 percent have been repeat run aways, but
this is after their first exposure to the program when they leave.
Then they come back. This is why they believe in volunteerism
because if a child wants to be in the program and makes this choice
then they are more likely to respond to the help which Covenant
House provides.
Number 2015
REPRESENTATIVE BUNDE stated that maybe if these kids didn't have
some place to "crash" they'd stay home. Having said this it was
his understanding that it's not a crime to run away, but what
they're saying is it's a crime to run away repeatedly.
CHAIRMAN PORTER clarified that once a court order has been violated
a child can be confined.
Number 2098
MS. WORLEY added that most of the cases where they would use a
valid court order is when a child is in their custody under a child
in need of aid, abandonment, etc., under some special circumstance.
Once this child has come into the system and are required to stay
within a particular facility and then run, this is when a valid
court order would be instituted.
MS. WORLEY then addressed an amendment which Representative
Finkelstein made reference to. Basically, the department did
support the bill which came out of the Senate Judiciary. They felt
it was a strong beginning in dealing with the issue of run aways,
it did not include the locked facility component. It did include
semi-secure, harder penalties for those who harbor run aways, and
more parental involvement. The department assisted in developing
an amendment that basically takes this legislation back to it's
original version. This would eliminate the aspects of a locked up
portion of this bill, the area which the department cannot support.
The second part would address the Covenant House issue, it would
change the language regarding the state's facilities from "shall
become secure" to "may become secure." The word "shall" puts
Covenant House out of business.
Number 2197
REPRESENTATIVE FINKELSTEIN noted that this second section which Ms.
Worley referred to was not in the amendment, the "shall" to "may"
language. He also asked what the amount they spoke about last week
regarding the loss of federal funds. How much money is involved?
MS. WORLEY stated that this amount was around $600,000 to $700,000
of the Office of Juvenile Justice and Delinquency Prevention
(OJJDP) funds, which funds about 30 community based, early
intervention programs that deal with run aways currently.
REPRESENTATIVE FINKELSTEIN asked if this was standard in keeping
the federal funds related to the idea that they can't jail minors
for violations which aren't crimes if they aren't an adult.
Number 2237
MS. SCHULTZ stated that this was true and the technical term used
for this status was de-institutionalization of status offenders
which means those children should not be in a jail or a detention
facility. Status offenders means offenses committed by someone
only because of their age as opposed to offense for everyone. In
context of the money lost, the way a valid court order works now
under law allows them to meet the requirements. "If we do have a
child that met this and we go through the valid court order and
that his behavior was based on run away or leaving the placement,
we've got that in. That still leaves us in compliance for our
federal funds."
Number 2298
REPRESENTATIVE BUNDE asked a question which could not be heard on
tape and a brief conversation followed as a result. He then stated
that he thought the reason why there was a 60 percent recidivism
rate at the Covenant House was because there's no "teeth."
CHAIRMAN PORTER stated that this was the amendment in front of the
committee, as well as two and three. He thought that they could
call this amendment as previously outlined by Ms. Worley as number
four.
REPRESENTATIVE FINKELSTEIN moved amendment number four.
Representative Bunde objected for discussion purposes. The text of
this amendment number four was as follows:
Page 1, line 13 to page 2, line 6:
Delete all material
Insert ": and
Renumber the following subsections accordingly.
Page 2, line 13 following "facility.":
Delete "It is also the purpose of this Act to authorize temporary
secure detention of a minor who has previously left a semi-secure
program without permission.
Page 3, lines 12 to 24:
Delete all material
Renumber the following sections accordingly.
Page 4, line 5:
Delete "or a child in need of aid"
Page 4, line 14:
Delete "If the court finds probable cause to believe the child is
a child in need of aid, it shall proceed under AS 47.10.142(e) and
order the minor to remain in the placement chosen for the minor by
the department or the minor's parent or guardian, as applicable."
Page 4, line 18 following "delinquent"
Delete "or for believing that the minor is a child in need of aid"
Page 4, line 20 following "case.":
Delete "If the court orders release of a minor who was arrested
under (a) of this section based on an alleged violation of AS
47.10.141 (g), the court shall advise the minor and the minor's
legal custodian of available mediation services and of the right to
social services under AS 47.10.142 (b).
Page 5, line 25 following "AS 47.10.142 (b)." to page 6, line 3:
Delete all material
Page 6, line 20 to 31:
Delate all material
Page 8, line 11 to 14:
Delete all material"
Number 2324
REPRESENTATIVE FINKELSTEIN argued the 60 percent recidivism as
being a positive thing. He asked when they'd ever seen this type
of success and noted that this was short term treatment. It's the
half empty, half full analogy.
MS. CARPENETI stated that the Department of Law supported the
original version of the legislation which came out of the Senate.
It was determined that the sponsor did not support amendment number
four.
Number 2443
REPRESENTATIVE BUNDE made the argument that this would take away
their federal funding, but "then there's the great hope that if we
don't spend federal money maybe they won't take it from us."
There being no further discussion regarding amendment number four
a roll call vote was taken. Representatives Davis, Finkelstein,
Green and Porter voted yes. Representatives Bunde and Toohey voted
no. Amendment number four passed.
TAPE 96-56, SIDE B
Number 000
REPRESENTATIVE FINKELSTEIN then gave an explanation about amendment
number 3. He requested that on page 7, line 27 to change the word
"shall" to "may," after the word program. Representative Toohey
objected for discussion purposes.
MS. WORLEY added that with the wording "shall" this would require
that all of their run away facilities become semi-secure, Covenant
House has stated that their philosophy is based on a voluntary
basis and this would put them out of business.
Number 071
REPRESENTATIVE BUNDE stated for the record that Covenant House as
an organization that's provides a service which the state doesn't
want, they should either change or go out of business.
REPRESENTATIVE GREEN quoted a section of the amendment, "in a
proportion that meets regulations established by the department."
He asked if this doesn't give them the flexibility that they need.
It says shall, but he wondered if this still didn't give them
discretion.
MS. WORLEY stated it was their understanding in discussing this
with the word "shall," some portion of every facility would have to
have a semi-secure element to it.
REPRESENTATIVE GREEN noted that in three places they indicated that
they were in favor of this.
MS. WORLEY said that the Department doesn't have a problem with the
semi-secure component, but they also believe that Covenant House
offers a wonderful service in Alaska. Covenant House does serve a
large number of their run aways and do have a great success rate
even after the initial recidivism, but they have stated that if
they are forced to provide semi-secure services they would not
continue to provide services in Alaska. Their philosophy
nationwide is to provide volunteer services.
Number 134
REPRESENTATIVE GREEN stated that he was having difficulty with what
he was hearing because the department is stating that it would be
good to have most of the facility unsecured except for a few areas,
but on the other hand they're saying they can't do this.
MS. WORLEY said that the number given earlier when talking about
"the 20," this number was for secure lock up only, not the semi-
secure. Currently they have five or six run away facilities which
are funded partially by the state, Covenant House is another one
and they don't receive any state funding. These facilities as
mentioned are all functioning as volunteer run away shelters. The
children make the choices to receive services on a run away basis.
Chairman Porter added for clarification that these facilities do
require that the child's participation is reported to the parents
and the state.
MS. SCHWARTZ offered that if a couple of the facilities as
mentioned took children on a semi-secure basis these facilities
would maybe only designate one or two rooms equipped with alarms.
MS. WORLEY continued that the department does not have a problem
with establishing semi-secure facilities, but Covenant House as one
of the largest providers of run away services does have a problem
with this requirement.
Number 172
CHAIRMAN PORTER noted that this conversation raises new issues such
as the confusion surrounding the language in this amendment,
whether they are talking about a portion of each facility or a
portion of the total facilities. The department interprets this to
mean a portion of each facility. If the word "may" is added to
this amendment they are definitely referring to a portion of the
facilities.
MS. SCHWARTZ stated that it was her interpretation that if the word
"may" was inserted this would mean that their six or eight
facilities out there could decide whether or not they wanted to
comply, as well as apply for the grant funds and they could decide
how much of their facility they wanted to make secure.
CHAIRMAN PORTER pointed out that if one of those facilities wanted
to say no they could under the "may" language.
Number 278
REPRESENTATIVE BUNDE stated that in essence this does legislate
specifically an exemption for Covenant House. "I'm sorry, I know
they are well intentioned people but, they're also enablers and if
these kids didn't have 'three hots and a cot' they might work it
out and stay home."
Number 290
CHAIRMAN PORTER pointed out that without Covenant House there would
be an immediate drain to the system in Anchorage.
MS. WORLEY said she didn't know in detail the Covenant House
program, but from what she does know once a child has decided to
stay there and within an eight day period can hear some counseling,
get the parents involved, this program can be successful, but to go
to the locked up facility concept of 48 hours. This is not even
time enough for the child to even cool off.
REPRESENTATIVE GREEN pointed out that there are hour long telephone
services set up to talk to children who are contemplating running
away. He wondered why if these work, why 48 hours wouldn't be
enough.
Number 369
MS. WORLEY said there are a lot of reasons. One of the things they
need to realize is that adolescents don't always think rationally.
Once they've made the choice to run and then they get picked up and
locked up. What this does for a short period of time is escalate
their anger at the situation, the authorities, the parents, etc.
REPRESENTATIVE GREEN stated that he didn't want to start a debate
here, but "it just seems to me then that if you shall be required
to maintain a portion that's different than saying they all will
be, everything in there, or if this person has the mentality that
being caught and confined whether it's open or not they're still
going to harbor that and if there, you have the discretion in
there, you have a few places. 'This one is going to run, this
one's really bad, or this one just needs some time to cool down and
get away from whatever they're running from.' It just seems to me
that 'shall' in there is actually a benefit from 'may' because
'may' tells me that you won't do anything."
MS. WORLEY offered that adding "may" gives the facilities options
to become a semi-secure function.
Number 441
REPRESENTATIVE FINKELSTEIN pointed out that Covenant House made a
deal with the state that when they were given the capital money to
get started they wouldn't ask for any additional state money.
MS. WORLEY believed that they do receive some monies from the
Department of Education for some educational type programming.
CHAIRMAN PORTER summed up the discussions concerning amendment
number 3 which consisted of changing the word "shall" to "may,"
which would allow one or more of the facilities they've been
discussing to not become proportionately or at all semi-secure and
that others may become totally semi-secure or partially semi-secure
as is worked out by the department. He then requested a roll call
vote on amendment number three. Representatives Davis, Finkelstein
and Porter voted yes. Representatives Green, Bunde and Toohey
voted no. Amendment number three failed due to a tie.
Number 522
REPRESENTATIVE FINKELSTEIN moved amendment R2 which Chairman Porter
referenced as number four although an amendment number four had
already been passed. This amendment was as follows:
Page 7, line 27, following "program"
Delete "shall maintain semi-secure portions of its facilities in a
proportion that meets regulations established by the department"
Insert "that, as determined by the department, regularly receives
state money in an amount that exceeds one-quarter of the program's
costs shall maintain semi-secure portions of its facilities in a
proportion that meets regulations established by the department and
the needs of the community;"
MS. CARPENETI came forward and stated that the Department of Law
had a problem with this amendment since it would probably be found
unconstitutional since it could possibly give a competitive
advantage to one particular program by exempting them from the
requirements of providing semi-secure portions as compared to other
facilities.
Number 577
CHAIRMAN PORTER stated that recognizing there can be constitutional
questions with everything they do, they're not saying that they
will accept the Covenant House, but they're saying they will accept
every program which receives less than 25 percent of their program
receipts from the state.
MS. CARPENETI said that this was true, but in effect what they are
doing is exempting only Covenant House.
REPRESENTATIVE FINKELSTEIN said, "it isn't clear to me what the
constitutional problem is, but there is, I realize now that, my
goal is to make sure Covenant House gets, I'm not sure this is
worth it if it's at the expense of setting up this odd system where
16 percent of the programs have to meet this requirement. If it
has the effect of driving those under or being any impediment to
the existing, the other 16 percent I think it would be
counterproductive so, I will withdraw the amendment."
Number 659
REPRESENTATIVE TOOHEY made a motion to rescind the action of
amendment number 3. There being no objection it was so moved.
This recision brought the amendment back on the table as described,
substituting the word "may" instead of "shall." Representative
Green objected. A roll call vote was taken. Representatives
Finkelstein, Toohey, Davis and Porter voted yes. Representatives
Green and Bunde voted no. Amendment number three passed.
Number 710
REPRESENTATIVE TOOHEY made a motion to move CSSB 289 from the House
Judiciary Committee with individual recommendations and attached
fiscal notes as amended. There being no objection it was so moved.
Chairman Porter asked the Division of Family & Youth Services to
make the necessary changes to their fiscal note for the House
Finance Committee.
SB 263 - COPYRIGHT ROYALTIES AND LICENSING
SHERMAN ERNOUF, Legislative Aide, Senate Labor & Commerce Committee
testified on SB 263. Mr. Ernouf paraphrased the sponsor statement.
This legislation was introduced in response to a growing outrage
amongst Alaskan restaurateurs at the heavy handed enforcement and
arbitrary pricing of the national music licensing giants. The main
purpose of this legislation is to level the contractual playing
field between small businesses and the large multi-billion dollar
licensing giants such the American Society of Composers, Authors
and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC (?).
As required under Federal Copyright Law, a restaurant, retailer or
any establishment which plays background music or has a television
on it's mandatory for them to pay for the music they listen.
Currently restaurants are held liable even for the music played
during television commercials and sports programs. ASCAP, BMI,
SESAC and other companies are authorized to collect licensing fees
and are often overzealous in their enforcement of their copyrights.
Local Alaskan restaurateurs have become increasingly alarmed by the
abusive collection practices, discriminatory enforcement, and
random pricing by these organizations. SB 263 seeks to remedy
these concerns by leveling the playing field between these
licensing giants and the local restaurateur.
The State of Alaska cannot regulate federal copyright laws, but
they can regulate the dealings between these two parties, more
specifically the contracts. SB 263 requires a copyright owner to
provide notice before entering into a contract with a business
proprietor. This notice must be received at the time of the offer
or within 72 hours of entering into the contract. The notice must
contain the rates and terms of the contract, a toll-free number
which the business owner can use to contact the licensing agents
with questions, and notice that the most recent list of works from
the performing rights society's repertoire will be available
through the CHARR Association.
Further, SB 263 sets a mandatory minimum level of contents for
royalties contracts. A royalties contract must be in writing and
signed by the parties. It must be completed in one year. The
contract should also include: (1) the business proprietors name,
address, and location to which the contract applies, (2) the
duration of the contract, and (3) the terms for royalty collection
and a rate schedule for royalties. Collection of royalties will
not be permissible if the contract does not meet the enumerated
minimum standards.
SB 263 also requires a copyright owner or society to disclose to a
business proprietor or the business proprietor's employees the name
of the copyright owner or society before discussing a contract or
the use of copyrighted works. There have been instances where
these copyright representatives enter an establishment unannounced,
they "snoop" around, they send a bill and threaten legal action to
coerce the proprietor. Under SB 263, a business proprietor can
bring a civil action against a copyright owner or society for the
violation of any of the above requirements. This is a result of
the coercion factor which has been going on. Some of these small
businesses cannot afford the threat of a lawsuit.
MR. ERNOUF stated that this legislation has had no opposition. The
Senate Judiciary Committee made some significant amendments to it
with the licensing giants. It passed the Senate unanimously. 20
other states already have this legislation and there are at least
13 or 14 working on similar legislation presently.
Number 1111
REPRESENTATIVE BUNDE stated he was very concerned about business
owners in the state who are signing contracts without knowing what
they involved and questioned why the state should push through
legislation to keep them from doing dumb things.
MR. ERNOUF responded that these individuals sign these contracts,
but they are provided the tapes or the music itself. These
societies represent certain musicians, but they don't always make
it clear what types of works they cover. Live bands are also a
problem, which has not been specifically addressed with this bill,
if these bands are playing cover music which is licensed through
one of these agents. "It's a pretty tricky scenario." This is
more of a national movement to do this since there have been some
arbitrary cases. For example, one restaurant is charged one
licensing fee and another restaurant is charged double or triple.
REPRESENTATIVE BUNDE noted that in response to these licensing
representatives entering these establishments unannounced. "They
are doing that because Alaska is notorious for being out of
compliance and basically stealing this entertainment without paying
copyright."
Number 1161
MR. ERNOUF responded that he didn't have any personal knowledge of
this fact and what he does know is from witness testimony. He knew
on one occasion that a licensing representative was rifling through
tapes in the back room to see if their's were licensed without
announcing their presence. This is a problem and he didn't feel
this legislation was overreaching in any way. There is national
effort to clear this problem up and Congress is dealing with it on
a national level as well.
REPRESENTATIVE GREEN asked if this legislation conflicted with
copyright law.
MR. ERNOUF responded that no, this wouldn't be the case.
"Basically copyright law provides that you pay for this, I don't
think bill has anything to, it's not saying that people should get
away with not paying for copyrighted materials that they use. What
it is saying is, it's saying we can regulate the contracts that
exist between these parties, enforce a certain level of contractual
dealings between the parties to prevent overreaching. A strong
multi-billion dollar corporation against a local bagel shop owner
is not really a level playing field."
Number 1235
CHAIRMAN PORTER asked if they found themselves in this position
because of a federal law, regulation on copyright, or was there a
court case decision.
MR. ERNOUF said he didn't think there was a case. He again
mentioned the national movement concerning this issue, but didn't
think it resulted from a particular case or anything of that
nature.
Number 1325
CHAIRMAN PORTER asked if there was a Ruth Hamilton from ASCAP to
testify. She was not present, but the committee members read
written testimony submitted by Ms. Hamilton instead. This can be
found in the committee packet. Chairman Porter noted that ASCAP
was suggesting two technical changes to the legislation and Mr.
Ernouf was familiar with these. These two technical changes are
reflected as follows:
"First, subparagraph (3) of Section 45.45.500 provides that the
most recent listings of copyright members, their affiliates and
copyrighted works are available to business proprietors on
'electronic media' through CHARR. It is not entirely clear what
'electronic media' means. ASCAP maintains, and we believe CHARR
concurs, that 'electronic media' in this context means the Internet
and other contact with ASCAP currently has with CHARR's parent
association providing the list of members and their works.
Second, Section 45.45.510(b) of the bill provides that contracts
made pursuant to 'national agreement' are not subject to a one-year
contract term. However, there is no such copyright licensing
contract called a 'national agreement.' Rather, the standard
contract is called a 'uniform agreement,' which is used on a
routine basis between performing rights societies and business
proprietors. Thus, the term 'national agreement' does not
appropriately identify the type of contract entered into for the
performance of copyrighted works in a place of business."
CHAIRMAN PORTER stated that in other words there is a current
electronic media system using the internet and he thought that for
the record he had no problem with accepting that it is the statute
or bill proposes. Mr. Ernouf agreed. Secondly, he wouldn't have
a problem noting for the record that their interpretation of the
term "national agreement" would probably coincide with theirs that
means "uniform agreement." Mr. Ernouf said he had no problem with
this either.
Number 1460
REPRESENTATIVE GREEN made a motion to move SB 263(JUD) from the
House Judiciary Committee with individual recommendations and
attached fiscal note. Representative Bunde objected.
REPRESENTATIVE BUNDE spoke to his objection. "It sounds like some
people negotiate good deals and some not so good. This is a
federal concern, there are revisions coming federally. It sounds
to me like this is protectionist legislation and I'm generally not
in favor of protectionist legislation."
CHAIRMAN PORTER stated for the record that he has heard reports to
the contrary. Some of these licensing operations are really
nefarious in their methods. It's like regulating other industries
when they show that they need it. He didn't see anything in the
legislation which gets someone out of having to pay.
Number 1560
REPRESENTATIVE BUNDE withdrew his objection.
CHAIRMAN PORTER moved SB 263(JUD) as so described.
SB 321 - COMMIT MENTALLY INCOMPETENT DEFENDANT
TAPE 96-56, SIDE B
Number 1611
JOE AMBROSE, Staff to Senator Taylor came forward to testify on SB
321 as the sponsor's representative. He read the sponsor statement
into the record.
"Senate Bill 321 was introduced to close a loop-hole in existing
law that prevents the civil commitment of those ruled mentally
incompetent to stand trial on a criminal charge, but who still pose
a danger to others.
Under current law, the defendant in a criminal case can be
committed for up to two 90 day periods if they have been found
incompetent to stand trial. If, at that point, the defendant is
still not competent and it appears they will not become competent,
they must be released from the criminal justice system. Commitment
at that point is governed by the civil courts.
SB 321 originally proposed to change the definition of mental
illness to allow for a civil commitment of these individuals. The
Department of Law suggested that the law governing a determination
of incompetency is the problem and the bill was amended in the
Senate.
As transmitted to the House, SB 321 addresses inappropriate
applications of the mental incompetency standard. It seeks to
assure that individuals who possess a sufficient degree of
understanding of the criminal process will be held accountable for
their criminal conduct."
MR. AMBROSE explained that this legislation was driven by a
situation in Anchorage where a retarded man has repeatedly molested
small, young girls. Nothing has happened. This individual has
been ruled incompetent to stand trial and there has been no way to
commit him beyond the two 90 day holds. He understands that by
introducing this legislation it's convinced this person's parents
that they should get this retarded individual voluntarily committed
to a community based treatment program. In the meantime, the
Department of Law, Senators Taylor and Ellis agree that part of the
problem is that it apparently doesn't take much to get an
individual ruled incompetent to stand trial in Alaska.
MR. AMBROSE stated that incidently there was a letter of intent
related to this legislation which was supposed to be offered in the
Senate. This was overlooked in committee. If the Judiciary
Committee would consider adopting this letter of intent, this would
make it very clear what the legislature is trying to do in this
case.
Number 1800
MR. AMBROSE cited another example of a 40 year individual in
Ketchikan who was entering grocery stores, walking right up to
women and groping them. This person was ruled incompetent to stand
trial. He was at Alaska Psychiatric Institute (API) for 90 days,
the court has now released him and the community has a difficult
time understanding this. He stated that there needed to be some
kind of a mechanism by which they can make this system work better.
He noted that it was very difficult to explain to the mother of a
five year old why the person who has molested their child is still
walking the streets.
CHAIRMAN PORTER commented that he had received a letter just today
from a constituent with this same problem.
Number 1869
MR. AMBROSE said initially they thought that the problem was with
the definition of mental illness for civil commitment and that it
didn't mesh with the definition of mental illness for incompetency.
The problem with trying to correct this is that they really don't
want to do simple commitments because the only option here is API.
He noted that this was not where these folks belong. There are
some excellent community based treatment programs for people who
sexually offend and they can be taught that there are some
parameters as to how they should behave.
REPRESENTATIVE GREEN agreed with this measure whole-heartedly
because while there is a problem with the offender, the victims
that these people sexually assault have rights too. These rights
supersede the fact that maybe this will cause an inconvenience to
someone is not "altogether there." He certainly supports this.
Number 1956
DEAN GUANELI, Chief Assistant Attorney General, Criminal Division,
Department of Law testified on SB 321. He stated that this version
of the legislation is significantly different from the original
version in that it addresses a lot of the concerns that many
agencies had with the original version. As the result of a recent
U.S. Supreme Court opinion this particular revised version is
constitutional.
MR. GUANELI stated that there was one particular provision in this
legislation that a number of people have expressed some concern
about. Last week he received calls from the American Civil
Liberties Union (ACLU) and the Public Defender Agency. Although,
he ordinarily doesn't accede to their demands very often, there was
one particular provision in the bill as it currently stands that
with a minor modification to the language it would comport more
with what Senator Taylor's comments on the floor of the Senate were
and would satisfy some of these other entities.
MR. GUANELI noted that many of the cases which raised these
concerns, especially the one in Anchorage, involve people who are
mentally retarded. When they are referred to API for treatment in
order to make them competent, it's difficult if not impossible to
make a mentally retarded individual any better. What's warranted
is a program to deal with their specific needs since there is no
treatment. These individuals are usually released with no
conditions or supervision imposed on them by the system. He
referred to page three, line 28 through 31 where listed were some
of the factors to be considered in determining whether a person is
mentally retarded to a point of having a mental disease or defect
that allows them to be incompetent. He quoted this language as
follows:
"a person who has obtained a driver's license, has voted in an
election, is able to maintain employment, or is competent to
testify as a witness under the Alaska Rules of Evidence is
considered to have sufficient intellectual functioning to adapt or
cope with the ordinary demands of life."
MR. GUANELI said there was a concern about this section raised in
the Senate, Senator Taylor indicated that these were among the
factors a court could consider. Mr. Guaneli didn't think that the
specific language used here brought this point home clearly enough.
Mr. Salemi from the Public Defender's office raised this point to
Mr. Guaneli, as well as the ACLU. Mr. Guaneli suggested a language
change to this section.
MR. GUANELI used an example to illustrate the need for this change.
Sometimes the kind of employment that a mentally retarded person
might have is at a fairly low level, such as licking envelopes. He
didn't know that being able to maintain this type of job makes
someone competent to stand trial. If someone is able to pass a
test to drive a car, he felt as though this was something the court
should carefully consider to determine if someone is incompetent.
MR. GUANELI also noted, voting in elections, that there are
programs specifically designed to encourage mentally retarded
people or people with low intellectual functioning to vote. He
wasn't certain that the mere fact of voting in an election means
someone qualifies. He suggested the following language in the
place of the language already outlined.
Number 2411
MR. GUANELI stated this change as a conceptual amendment for the
record. This would be considered amendment number one. He
suggested removing lines 28 to 31, on page 3 and replacing it with
the following:
"in determining whether a person has sufficient intellectual
functioning to adapt or cope with the ordinary demands of life, the
court shall consider whether the person has obtained a driver's
license, is able to maintain employment or is competent to testify
as a witness under the Alaska Rules of Evidence."
TAPE 96-57, SIDE A
Number 000
REPRESENTATIVE GREEN made a motion to adopt this conceptual
amendment one as stated. There being no objection it was so moved.
Number 033
REPRESENTATIVE FINKELSTEIN then suggested an amendment number two
which would delete on page 2, lines 7 to 9 and offered that both
sides can get various evaluations of the accused to submit to
evaluations, but the difference here seems to be that the
prosecution is able to force an evaluation and he wondered whether
this was allowed under the constitution.
Number 164
MR. GUANELI stated that the whole point of putting this clause in
this legislation was that without it they would not be able to get
a defendant to subject themselves to an evaluation. This
requirement is needed. In ordinary criminal cases, if the person
is claiming there isn't anything wrong with them, the prosecution
can't make them be evaluated, but once they have put their mental
condition into issue then at this point the only way the
prosecution can gather any information is to subject them to some
type of evaluation. Presently this is done through court order
with a court chosen psychiatrist. The defendant themselves can go
out and pick their own psychiatrist, but if the evaluation comes
back negatively it never sees the light of day, if it's a favorable
one then it gets submitted to court. The prosecutor, without this
language, can only rely on the court chosen psychologist. This
person from the state's point of view might not be the best to
evaluate this particular defendant. This is why they suggested the
language referenced by Representative Finkelstein.
Number 268
REPRESENTATIVE GREEN asked if this in any way required a change to
court rules.
MR. GUANELI stated that no, it did not.
Number 285
REPRESENTATIVE FINKELSTEIN asked what was wrong with the court
choosing the psychologist or psychiatrist.
MR. GUANELI stated that the court has a certain role in making
judgments and evaluating evidence, but all parties operate in a
adversarial system of justice. This adversarial system of justice
is designed to work when both parties present evidence they choose
to bring to the court. If the prosecution is unable to have it's
psychiatrist evaluate the defendant, then the prosecution is forced
to rely on a psychiatrist chosen by the defense and a psychiatrist
chosen by the judge, neither one of which might adequately
represent appropriate views. There are defense oriented and
prosecution oriented psychiatrist and he hoped that the court would
choose one in-between, but again this is a system where both sides
ought to allowed to present the evidence they think is best.
CHAIRMAN PORTER made the observation that the court would be more
likely to appoint a neutral psychiatrist or psychologist if they
knew that if they didn't, the prosecution could require that
another be appointed at their request.
REPRESENTATIVE FINKELSTEIN made the argument that if the court is
making the decision of who to appoint they will most likely listen
to the one they appointed. It seemed to him that they were setting
up a system which didn't have any point to it. Whoever the court
picks, this is the person they will base their decision on.
Number 440
CHAIRMAN PORTER noted that when they say, "the court," they are
talking about a lot of individuals and some of them have pretty
pointed opinions in these areas. If there is something on this
judge's record about this person which that judge can't overlook,
unless he wants the hearing to be reversed, then it's unlikely that
he will.
MR. GUANELI stated that as a practical matter if the judge really
does appoint someone which the state views as objective and
neutral, the state ordinarily is not going to subject this person
to a second opinion. There are psychiatrists and psychologists who
they don't put as high a value on their opinion as others. There
are some who are not well versed in this area of the law.
Number 440
CHAIRMAN PORTER objected to the amendment as proposed by
Representative Finkelstein and referred to it as amendment number
two. A roll call vote was taken. Representatives Green, Toohey,
Davis and Porter voted no. Representative Finkelstein voted yes.
Representatives Bunde and Vezey were not present. Amendment number
two failed.
Number 570
REPRESENTATIVE FINKELSTEIN proposed an amendment number three which
would strike from the original amendment number one the clause
regarding employment. He stated that the reason for this was that
"employment" as pointed out by Mr. Guaneli can be as limited to
licking a stamp, scrubbing a floor, or incredibly menial tasks, he
didn't think this should be a consideration. Representative
Finkelstein suggested that they say something like "a high level
job" instead.
REPRESENTATIVE GREEN objected and stated that an employment
situation would be something to consider, not necessarily as a
series of things, any one of which could trigger a decision.
CHAIRMAN PORTER noted that to say "meaningful employment" or "high
level employment" begs a definition that they were not prepared to
get into.
REPRESENTATIVE FINKELSTEIN agreed and withdrew this amendment
number three.
Number 675
REPRESENTATIVE TOOHEY made a motion to move SB 321, Version C from
the House Judiciary Committee with individual recommendations and
attached fiscal notes as amended. There being no objection it was
so moved.
ADJOURNMENT
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