Legislature(1997 - 1998)
03/21/1997 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 21, 1997
1:05 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Brian Porter
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 1(FIN) am
"An Act relating to living and working conditions of prisoners in
correctional facilities operated by the state, and authorizing the
commissioner of corrections to negotiate with providers of
detention and confinement services under contract to apply those
conditions and limitations on services to persons held under
authority of state law at facilities operated under contract or
agreement; relating to services provided to prisoners; amending the
definition of `severely medically disabled' applicable to prisoners
seeking special medical parole; amending provisions of the
correctional industries program; and extending the termination date
of the Correctional Industries Commission and the program."
- MOVED HCS CSSB 1(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 10
"An Act requiring mediation in a civil action against an architect,
engineer, or land surveyor; amending Rule 100, Alaska Rules of
Civil Procedure; and providing for an effective date."
- MOVED CSHB 10(L&C) OUT OF COMMITTEE
HOUSE BILL NO. 95
"An Act relating to motor vehicle registration, licensing, and
insurance; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: SB 1
SHORT TITLE: "NO FRILLS" PRISON ACT
SPONSOR(S): SENATOR(S) DONLEY, Halford, Pearce, Green, Leman,
Taylor, Kelly, Mackie, Phillips; REPRESENTATIVE(S) Mulder, Cowdery,
Green, Bunde
JRN-DATE JRN-PG ACTION
01/03/97 13 (S) PREFILE RELEASED 1/3/97
01/13/97 13 (S) READ THE FIRST TIME - REFERRAL(S)
01/13/97 14 (S) JUD, FIN
01/22/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
01/22/97 (S) MINUTE(JUD)
01/27/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
01/27/97 (S) MINUTE(JUD)
01/29/97 163 (S) COSPONSOR(S): GREEN, LEMAN
01/30/97 171 (S) JUD RPT CS 4DP SAME TITLE
01/30/97 171 (S) DP: TAYLOR, MILLER, PARNELL, PEARCE
01/30/97 171 (S) FISCAL NOTE TO SB (DPS)
01/30/97 171 (S) FISCAL NOTE TO CS (DPS)
01/30/97 171 (S) ZERO FISCAL NOTES TO SB & CS
(LAW, DPS)
01/30/97 183 (S) COSPONSOR: TAYLOR
02/05/97 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/06/97 246 (S) FIN RPT CS 6DP 1DNP SAME TITLE
02/06/97 246 (S) DP: SHARP, PEARCE, PHILLIPS, PARNELL,
02/06/97 246 (S) TORGERSON, DONLEY; DNP: ADAMS
02/06/97 246 (S) PREVIOUS FN TO CS (COR)
02/06/97 246 (S) PREVIOUS ZERO FNS TO CS (DPS, LAW)
02/11/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203
02/11/97 (S) MINUTE(RLS)
02/11/97 283 (S) RULES TO CALENDAR & 1NR 2/11/97
02/11/97 285 (S) READ THE SECOND TIME
02/11/97 285 (S) FIN CS ADOPTED UNAN CONSENT
02/11/97 285 (S) AM NO 1 OFFERED BY ADAMS
02/11/97 285 (S) AM NO 1 FAILED Y5 N14 E1
02/11/97 286 (S) AM NO 2 OFFERED BY ADAMS
02/11/97 286 (S) AM NO 2 FAILED Y5 N14 E1
02/11/97 287 (S) AM NO 3 MOVED BY GREEN
02/11/97 287 (S) AM NO 3 ADOPTED UNAN CONSENT
02/11/97 287 (S) AM NO 4 OFFERED BY LINCOLN
02/11/97 287 (S) AM NO 4 FAILED Y5 N14 E1
02/11/97 287 (S) ADVANCED TO THIRD READING
UNAN CONSENT
02/11/97 288 (S) READ THE THIRD TIME CSSB 1(FIN) AM
02/11/97 288 (S) RETURN TO SECOND FOR AM 5
UNAN CONSENT
02/11/97 288 (S) AM NO 5 ADOPTED UNAN CONSENT
02/11/97 288 (S) AUTOMATICALLY IN THIRD READING
02/11/97 288 (S) COSPONSOR(S): KELLY, MACKIE, PHILLIPS
02/11/97 289 (S) PASSED Y17 N2 E1
02/11/97 289 (S) DUNCAN NOTICE OF RECONSIDERATION
02/12/97 316 (S) RECONSIDERATION NOT TAKEN UP
02/12/97 317 (S) TRANSMITTED TO (H)
02/13/97 330 (H) READ THE FIRST TIME - REFERRAL(S)
02/13/97 330 (H) JUDICIARY, FINANCE
02/13/97 349 (H) CROSS SPONSOR(S): MULDER
02/18/97 388 (H) CROSS SPONSOR(S): COWDERY
03/07/97 (H) JUD AT 1:00 PM CAPITOL 120
03/07/97 (H) MINUTE(JUD)
03/07/97 594 (H) CROSS SPONSOR(S): GREEN
03/10/97 (H) JUD AT 1:00 PM CAPITOL 120
03/10/97 (H) MINUTE(JUD)
03/14/97 (H) JUD AT 1:00 PM CAPITOL 120
03/14/97 (H) MINUTE(JUD)
03/19/97 (H) JUD AT 1:00 PM CAPITOL 120
03/19/97 (H) MINUTE(JUD)
03/21/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 10
SHORT TITLE: MANDATORY MEDIATION/DESIGN PROF LAWSUITS
SPONSOR(S): REPRESENTATIVE(S) GREEN
JRN-DATE JRN-PG ACTION
01/13/97 29 (H) PREFILE RELEASED 1/3/97
01/13/97 29 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 29 (H) LABOR & COMMERCE, JUD, FINANCE
03/12/97 (H) L&C AT 3:15 PM CAPITOL 17
03/12/97 (H) MINUTE(L&C)
03/14/97 662 (H) L&C RPT CS(L&C) NT 5DP 1NR
03/14/97 662 (H) DP: COWDERY, SANDERS, RYAN, HUDSON
03/14/97 662 (H) ROKEBERG
03/14/97 662 (H) NR: BRICE
03/14/97 663 (H) ZERO FISCAL NOTE (COURT)
03/21/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SENATOR DAVE DONLEY
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99811
Telephone: (907) 465-3892
POSITION STATEMENT: Prime Sponsor OF SB 1.
JAMES ARMSTRONG, Legislative Aide
Senator Dave Donley
Capitol Building, Room 508
Juneau, Alaska 99811
Telephone: (907) 465-3892
POSITION STATEMENT: Provided comments on SB 1.
FRANK SAUSER, Director
Division of Institutions
Department of Corrections
4500 Diplomacy Drive, Suite 207
Anchorage, Alaska 99508
Telephone: (907) 269-7409
POSITION STATEMENT: Provided comments on SB 1.
PAUL SWEET
P.O. Box 1562
Palmer, Alaska 99645
Telephone: (907) 745-2242
POSITION STATEMENT: Provided comments on SB 1.
JEFF LOGAN, Legislative Assistant
to Representative Joe Green
Capitol Building, Room 118
Juneau, Alaska 99811
Telephone: (907) 465-4931
POSITION STATEMENT: Provided comments on behalf of Representative
Green, Prime Sponsor HB 10.
COLIN MAYNARD, Representative
Alaska Professional Design Council
P.O. Box 91139
Anchorage, Alaska 99509-1139
Telephone: (907) 274-2236
POSITION STATEMENT: Testified in support of HB 10.
ACTION NARRATIVE
TAPE 97-44, SIDE A
Number 001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee to
order at 1:05 p.m. Members present at the call to order were
Representatives Con Bunde, Norman Rokeberg, Jeannette James, Eric
Croft, Ethan Berkowitz and Chairman Joe Green. Representative
Brian Porter was excused.
CHAIRMAN GREEN announced that HB 53, Correctional Facility
Lease/Purchase was in subcommittee and would be considered possibly
on Wednesday, March 26, 1997. He advised members there would be a
death penalty debate on Saturday, March 22, 1997, from 2:30 to
4:30, by two members of the same church from Fairbanks, Alaska. On
Monday, March 24, 1997, members would consider the Death Penalty
Advisory Vote bill.
CHAIRMAN GREEN reminded members that the committee had been invited
to attend the Committee on Fairness and Access meeting at 5:00 p.m.
on Wednesday, March 26, 1997, in Courtroom A in the Dimond Court
Building in Juneau, Alaska.
REPRESENTATIVE ETHAN BERKOWITZ asked whether "Fairness and Access"
pertained to physical access to the court house.
CHAIRMAN GREEN said that was correct.
CHAIRMAN GREEN advised members that Mat-Su, Anchorage and Kenai,
Alaska were on teleconference.
CSSB 1(FIN)am - "NO FRILLS" PRISON ACT
Number 199
CHAIRMAN GREEN advised members they would continue taking testimony
and discussion on CSSB 1(FIN) am, "An Act relating to living and
working conditions of prisoners in correctional facilities operated
by the state, and authorizing the commissioner of corrections to
negotiate with providers of detention and confinement services
under contract to apply those conditions and limitations on
services to persons held under authority of state law at facilities
operated under contract or agreement; relating to services provided
to prisoners; amending the definition of `severely medically
disabled' applicable to prisoners seeking special medical parole;
amending provisions of the correctional industries program; and
extending the termination date of the Correctional Industries
Commission and the program."
SENATOR DAVE DONLEY, Prime Sponsor, directed members' attention to
the work draft House committee substitute that incorporated most of
the recommendations of the committee expressed during the previous
hearing. It was his understanding there were two issues the
Department of Corrections wanted to speak to as a result of the
changes in the draft committee substitute.
CHAIRMAN GREEN suggested that the committee adopt the new draft
committee substitute as their working document and modify it
accordingly.
REPRESENTATIVE CON BUNDE moved to adopt HCS CSSB 1(JUD), Version R.
There being no objection, it was so ordered.
CHAIRMAN GREEN asked that Senator Donley define the changes of the
proposed House committee substitute, and the department could then
address their concerns.
SENATOR DONLEY advised members the first change, suggested by
Representative Rokeberg, reduced the food standard from 90 percent
of the military cost to 80 percent. He noted that the department
was currently at 80.5 percent of the current military costs, and
that was one area the department had concerns with.
SENATOR DONLEY stated that the second change, proposed by
Representative Croft, dealt with a restructuring of the use of
Alaska farm products and salmon and was moved to another section of
the bill, which he felt was a good idea. The third change, as
recommended by Representative Croft, would allow viewing of movies
that did not have a rating. Senator Donley advised members that a
rating of "NC-17" was a more violent, more adult standard than an
"R" rating. He explained that no one under 17 years of age could
be admitted to an "NC-17" rated movie, whereas an "R" rated movie
would allow persons under the age of 17, if accompanied by a
parent.
Number 475
REPRESENTATIVE BUNDE asked if "NC-17" rated movies were on
television.
SENATOR DONLEY advised members they could be viewed on cable
television.
REPRESENTATIVE BUNDE asked if video cassette movies were available
in prison and if the same rating system would apply. It was his
concern whether video movies were rated on their label.
SENATOR DONLEY advised members that his experience was that most
video cassette movies did reflect the rating on the label. He had
seen some rare exceptions where it stated on the label that the
movie was not rated.
SENATOR DONLEY addressed the fourth change that was recommended by
Representative Croft and Representative Porter which involved a
drafting change to make clear that the prohibition of free weights
was separate from the prohibition of martial arts activities. The
fifth change was a result of a question posed by Representative
Porter regarding the ban on televisions, as to whether they would
be banned in maximum security facilities, or banned from a prisoner
classified as maximum custody. Senator Donley expressed that the
department had a problem with that change and would speak to their
concern.
SENATOR DONLEY stated that the sixth change was a result of a
question posed by Representative Bunde regarding the $2 utility
fee, which appeared on page 6, line 6. He advised members that the
dollar figure was deleted, leaving it to the discretion of the
department. Senator Donley agreed with that change because it
would allow the department the ability to adjust the rate as they
saw fit. He pointed out that the department was currently
operating in that manner with the medical fee charge.
Number 674
REPRESENTATIVE ROKEBERG believed that language would also allow for
work credits, rather than a specific dollar amount, which he felt
was positive.
SENATOR DONLEY stated that that could be done because the
department would have the flexibility to allow for that, which he
felt was appropriate.
SENATOR DONLEY advised members that the seventh change had been
requested by the Department of Law, and proposed by Representative
Croft, which was a technical change that added the language
"conviction or", to Section 8, page 7, line 17, relating to access
to legal materials or assistance.
SENATOR DONLEY pointed out that there were several other
suggestions that were not incorporated into the new House committee
substitute. He advised members that Representative Croft had
question regarding compliance with the food provisions, and
Representative Rokeberg suggested that the bill specify authority
to charge prisoners for phone calls. Senator Donley pointed out
that in talking with the department, that authority was currently
in statute.
SENATOR DONLEY expressed that Representative Rokeberg had suggested
sanctions be imposed on prisoners who file frivolous litigation.
He stated that after researching that idea it was found that last
year the legislature imposed a fee to file law suits which had
reduced the number of frivolous law suits filed, and was working
well.
Number 838
REPRESENTATIVE CROFT thanked Senator Donley for incorporating the
majority of the recommended changes and asked if the department's
concerns involved only the two changes he had spoken to.
SENATOR DONLEY advised members that was his understanding, but felt
they should speak for themselves, as they may have additional
concerns that he was not aware of.
REPRESENTATIVE ROKEBERG referenced the expenditures allowed for
food and asked Senator Donley if he had a list published by the
U.S. Army of the current dollar amount they spend on food.
SENATOR DONLEY advised members that for the U.S. Army Alaska, it
was $5.91 per day.
REPRESENTATIVE ROKEBERG asked if that was from the Elmendorf Air
Force Base.
SENATOR DONLEY said that was correct.
REPRESENTATIVE ROKEBERG pointed out that that was not the U.S.
Army.
JAMES ARMSTRONG, Legislative Aide, Senator Dave Donley, advised
members they addressed that issue last year, and Jerry Shriner,
with the Department of Corrections, provided that new language
during the interim. Senator Donley expressed that they would get
a listing from Fort Rich to compare to the dollar amount provided
by the Elmendorf Air Base.
Number 981
REPRESENTATIVE JEANNETTE JAMES felt they should consider using the
phrase U.S. Military, as opposed to the U.S. Army, or the U.S. Air
Force.
CHAIRMAN GREEN thought they might consider an average amount
because there could be a difference between the various branches of
the military.
SENATOR DONLEY advised members he would get the numbers from Fort
Rich for comparison purposes and provide those numbers to the
Finance Committee.
REPRESENTATIVE JAMES expressed that it had been determined, through
conversation, that the Army had the worst food, and she felt that
maybe 80 percent of the worst was the best.
CHAIRMAN GREEN asked that Mr. Sauser, with the Department of
Corrections, address members via teleconference from Anchorage,
Alaska.
Number 114
FRANK SAUSER, Director, Division of Institutions, Department of
Corrections, advised members that in checking with the military it
appeared that they generalize their food costs. He stated that
Elmendorf and Fort Rich use a common warehouse. Mr. Sauser stated
that the military did not include some of the costs the department
did, of which a critical cost for the department was the freight or
transportation costs. He noted that that affected the facilities
in remote sites and was a considerable increase to the department's
food costs.
MR. SAUSER stated that it appeared from the figures presented that
the department was slightly over 80 percent at the present time.
He advised members that the department would prefer, if possible,
that they not be held to such a close percentage. Mr. Sauser
stated that he did have a concern if the military would decide to
cut back on its food budget that it could severely impact the
department, adding that the military's food costs fluctuate on a
monthly basis, as did the departments. Mr. Sauser pointed out that
it was dependant on the number of prisoners being fed, and
reiterated that the department calculated their food costs on a
monthly basis and they did fluctuate from month to month, although
not to a great extent. Mr. Sauser advised members that the
department would very much prefer to remain at 90 percent rather
than 80 percent, which would allow for a little more flexibility
and cushion against changes that the military might decide to
implement.
MR. SAUSER stated with respect to the third change regarding the
viewing of video cassettes, that the department did not allow
inmates to view home movies. He noted that the department did
allow that several years ago and they realized substantial problems
with people bringing in pornographic materials. Mr. Sauser pointed
out that the department did restrict video taped movies to those
that were above "R" rated.
MR. SAUSER advised members that the department did have some
concern with the fifth change in the new House committee substitute
which related to television rights. He stated that there were
medium custody prisoners, and a hand full of minimum custody
prisoners at the Spring Creek facility. The department would be
faced with a problem if those inmates were denied a television
because of the facility they were housed in. Mr. Sauser advised
members that the facilities that were currently regarded as maximum
security prisoners were the Spring Creek Correctional Center in
Seward, Alaska, and sometimes the Lemon Creek Correctional Center
in Juneau, Alaska.
CHAIRMAN GREEN stated that if the department currently had the
flexibility to segregate inmates within an institution, why would
the department realize a problem with the amended language.
MR. SAUSER explained that his concern was that the lower custody
prisoner, who happened to be housed in a maximum security facility,
would not be entitled to a television because of his/her location.
He provided an example where a close custody prisoner in the
Fairbanks facility would be allowed to qualify for a television;
however, a prisoner housed at a maximum security facility, who was
classified as either medium or minimum custody, would not qualify
only because of the institution he/she was housed in. He added
that there were not that many televisions in the facilities, and to
his knowledge, they had never allowed maximum custody prisoners to
have a television in their cell, nor would the department be
interested in doing that. Mr. Sauser advised members that the
original language was relatively comfortable for the department.
Number 1506
REPRESENTATIVE BUNDE asked how often medium or minimum custody
level prisoners were placed in maximum security prisons, and how
many were now housed in maximum security prisons.
MR. SAUSER advised members that currently there were up to four
minimum security prisoners housed at the Spring Creek facility to
provide for a work crew who could work on the road outside the
fence of the facility, and work in the facility store house,
things of that nature. He stated that there were a number of
medium custody prisoners housed at Spring Creek as well, either
because their custody level had been lowered while they were
serving their time, or in some cases, depending on bed space, the
inmate was moved to Spring Creek, even though classified as a
medium custody level prisoner to begin with. Mr. Sauser advised
members that would also be true of the Lemon Creek facility, and
added that the Lemon Creek Correctional Center also functioned as
the Juneau jail.
CHAIRMAN GREEN suggested amending the language on page 5, line 17,
HCS CSSB 1(JUD), to state, "(d) On and after January 1, 1998, the
commissioner may not allow a maximum secured prisoner to possess a
television set in the prisoner's cell."
SENATOR DONLEY pointed out that that would take them back to the
existing language of the Senate version.
CHAIRMAN GREEN asked if they went back to the Senate language if
that would satisfy the department's concern regarding the
television issue.
MS. SAUSER advised members that would satisfy the department's
concern.
CHAIRMAN GREEN moved to amend HCS CSSB 1(JUD), to reinstate the
language from the Senate version, CSSB 1(FIN) am, with respect to
a prisoner's ability to possess a television in his/her cell. That
language read, "On and after January 1, 1998, the commissioner may
not allow a prisoner to possess a television in the prisoner's cell
if the prisoner is classified as maximum custody under AS
33.30.011(2)." Representative Rokeberg agreed with that. There
being no objection, Amendment 1, HCS CSSB 1(JUD) was adopted.
CHAIRMAN GREEN asked if Mr. Sauser had other concerns with the new
House committee substitute.
MR. SAUSER advised members the department did not have other
concerns, although the seventh change he would defer to the
Department of Law.
CHAIRMAN GREEN pointed out the concern regarding the food
expenditure being changed to 80 percent and asked Senator Donley if
he wanted to address that in the House Finance Committee.
SENATOR DONLEY advised members it was up to the committee as to
what percentage they wanted to choose.
REPRESENTATIVE ROKEBERG advised members he would be more
comfortable at the 90 percent level after hearing the comments
provided by Mr. Sauser.
REPRESENTATIVE CROFT advised members he had the same concern.
CHAIRMAN GREEN agreed that the concern expressed was a valid
concern.
REPRESENTATIVE ROKEBERG moved to amend HCS CSSB 1(JUD) to replace
the 80 percent with 90 percent on page 3, line 21, as was in the
Senate version. There being no objection, Amendment 2, HCS CSSB
1(JUD) was adopted.
CHAIRMAN GREEN took testimony from Mat-Su, and invited comments
from Paul Sweet.
PAUL SWEET, resident of Palmer, Alaska, agreed with getting rid of
all the "frills" in the prison system; however, he stated that once
you start taking things away from prisoners, it could be necessary
to beef up the inside of the prison system, itself. He advised
members that he had reviewed the manning dockets for the Palmer
Correctional Center and the Wildwood Correctional Center and there
was an average of 12 guards on duty, each shift, for approximately
300 to 500 prisoners. Mr. Sweet expressed that three of those
guards would be responsible for the lock-down prisoners, in
communications or on the fence line. That would leave 9 guards, of
which one might be a Sergeant, which would reduce the guard count
to 8, and those 8 guards would be responsible to oversee 400 to 500
prisoners. Mr. Sweet advised members that when they start taking
away privileges of the prisoners, he felt it would result in
putting some people in harms way.
MR. SWEET was curious as to why no one had challenged the Cleary
decision, which he felt was the crux of the whole matter, and that
the court should get out of the Corrections Department and let
corrections run their own business.
Number 1831
REPRESENTATIVE BUNDE noted that Mr. Sweet appeared to be familiar
with the correction problems, and asked if he was employed by the
department.
MR. SWEET advised members he was not employed by corrections, but
had reviewed all the information sent him and took it from there.
He stated with regard to the food issue, that members should
contact some of the maximum security facilities as to what they
provide their prisoners. Mr. Sweet expressed that he was a "prison
chaser" back in the 1950s, and he saw where only one hot meal a day
was served and the other two were sea rations and K-rations, and
those prisoners managed to survive. He could not understand why
the state wanted to keep pace with what the government spent on
their troops, they should provide good food to their troops, but
that did not mean that the prisoners should get good food.
MR. SWEET advised members if the state wanted to reduce the rate of
recidivism, prisons should be made so tough that they would never
want to go back. He expressed that the state's recidivism rate was
85 percent and Japan's rate was 5 percent. Mr. Sweet stated that
the reason Japan's rate was so low was because of the toughness of
their prison system.
MR. SWEET advised members that an Anchorage prosecutor stated on
television that if he could pick up 150 to 200 people in Anchorage,
he would solve 95 percent of the crimes committed. Mr. Sweet
expressed that he had to call the prosecutor on the phone to see if
he had actually heard him correctly. Mr. Sweet noted that that
coincided with the state's recidivism rate.
Number 1975
REPRESENTATIVE ROKEBERG expressed his appreciation of Mr. Sweet's
consideration on the issue, and asked if he would consider the
concept of employing chain gangs in the state of Alaska, as a
suitable method of punishment.
MR. SWEET did not necessarily agree with that; however he would
like to see the reinstatement of community custody. He pointed out
that the past commissioner had removed that from regulation, and
the only way for local people to get prisoner labor was if they had
an armed guard, or a halfway house in the community. Mr. Sweet
stated that years ago they used to go the prison and get four, or
five prisoners every day and take them down to work the ball
fields, or whatever they wanted them to do. He stated that if an
individual was qualified to be housed in a halfway house, they
should be able to be brought into a community from a jail house.
REPRESENTATIVE ROKEBERG advised members he would ask the sponsor of
the bill to look into that situation.
REPRESENTATIVE JAMES noted Mr. Sweet's concern regarding the need
to keep prisoners busy, which was a concern of hers as well. She
did not necessarily think that taking away the "frills" should
eliminate the inmates from having something to do, and that was not
what she intended the bill to be doing.
REPRESENTATIVE JAMES advised members with respect to the guards,
she felt it was necessary to be sure the number of guards was
sufficient to be able to protect themselves, as well as the inmates
who could be victims of irrational behavior. Representative James
advised members that she felt it was necessary to keep the level of
stress as low as possible.
Number 2148
REPRESENTATIVE ROKEBERG stated that if the bill were to be enacted,
it was his understanding through conversations with some of the
superintendents, that it would not result in a huge change from
current policies in some of the institutions. He asked Mr. Sauser
if that would be an accurate characterization.
MR. SAUSER advised members that in some facilities, some of the
provisions of the bill were already in place; for example, two
thirds of the state's facilities had already banned all smoking
from the facility, and the two facilities that had not would
probably implement a ban this year. He stated that corrections had
not, in the past, allowed maximum custody prisoners to have
televisions in their cells, which was not actually a change. Mr.
Sauser noted also that the department had not allowed "R" rated
movies to be shown, which again, was not a change.
REPRESENTATIVE ROKEBERG understood that the Lemon Creek
Correctional Center banned smoking well over a year ago, and asked
Mr. Sauser how that worked.
MS. SAUSER advised members that it was not quite that long ago, but
the Lemon Creek facility had banned smoking and it appeared to be
working fairly well. He stated that generally, what the department
had experienced in the facilities where smoking had been banned,
was that the energy that used to go into smuggling marijuana into
the facilities was now going to smuggling tobacco into the
facilities.
REPRESENTATIVE ROKEBERG advised members that he had conducted some
research of the operation of some other systems in relation to the
"no frills", and the areas where there had been the removal of free
weights, or weight training, that it would seem to him it would be
quite important that alternate physical activities be made
available. He asked Mr. Sauser how he would approach that issue of
the legislation passed.
MR. SAUSER advised members that had been a concern of the
department because a lot of physical activities had been with free
weights. He stated that some of the facilities did not currently
have free weights. Mr. Sauser pointed out that the Lemon Creek
facility was removing the last of their free weights this spring,
if not already. He expressed that the Lemon Creek Correctional
Center developed, in-house, some fixed athletic/exercise equipment
for the maximum security section, which seemed to work well. Mr.
Sauser stated that some of the facilities did have universal units,
and that they try to encourage basket ball, hand ball and soft ball
activities in the facilities.
REPRESENTATIVE ROKEBERG referenced the issue of community custody
brought up by Mr. Sweet, and asked Mr. Sauser to comment on that.
MR. SAUSER advised members there still was a community custody
classification, but was restricted to people in halfway houses. He
believed the rational was that people who could be outside a
facility without direct, or immediate supervision, probably ought
to be in a halfway house rather than in a hard bed. Mr. Sauser
explained that part of what had happened was that the number of
people in halfway houses had vastly increased, and those people
were still going out and doing community work service. Mr. Sauser
expressed that there was no halfway house in Palmer, so the Palmer
prisoners who were suitable for that are moved into the CRC beds in
Anchorage.
MR. SAUSER advised members that the department did have some
prisoners out on work crews, noting that historically, the
department had tried to provide a work crew for the Alaska Rail
Road out of the Palmer Correctional Center. He stated that the
number of prisoners available for that type of release had been
greatly reduced because they were being moved to halfway houses.
Mr. Sauser advised members that the higher custody prisoners would
require a greater level of supervision and becomes cost
prohibitive. He noted that he was in Arizona recently and a saw a
road crew, which included approximately 10 prisoners, who were
being watched by four security staff in four separate vehicles.
Mr. Sauser pointed out that he would have to think it would be
cheaper for the amount of work that was getting done to hire state
employees to do that road work. He stated that that amount of
supervision was not at all cost effective, as he saw it.
Number 2420
REPRESENTATIVE BUNDE pointed out that Mr. Sweet had indicated that
a private citizen could "check-out" a prisoner for the day to do
whatever the individual wanted done. He asked if what Mr. Sauser
was saying was that prisoners were released to governmental
organizations, et cetera. Representative Bunde asked if it ever
was a policy of the department that a private citizen could request
a prisoner for the day.
MR. SAUSER advised members the department did, and still do work
with both governmental organizations and non-profit organizations,
such as the Brother Francis Shelter. He advised members he would
never allow a private citizen to "check-out" a prisoner, and did
not believe the state of Alaska had ever done that.
TAPE 97-44, SIDE B
Number 000
REPRESENTATIVE JAMES referred to the issue of banning smoking and
tobacco products in prison facilities, and pointed out that people
who liked to smoke, but could not, would probably become distressed
and asked if any of that type of behavior had come about in the
facilities that had already banned smoking. She pointed out that
she had spoken with a person involved with mental health issues
just recently, and indicated that she was concerned about persons
with mental health problems who would be deprived of smoking
because it was something that calmed them down, and not having the
ability to smoke could cause great distress.
MR. SAUSER advised members that of the facilities that had banned
smoking, only one facility appeared to be having problems relating
to increased tension. He was not certain as to why that particular
facility was having a problem, while the others were not. Mr.
Sauser advised members there was a mental health unit at the Cook
Inlet Pretrial facility, which, in the past had used cigarettes as
a behavior modification incentive, and he thought the department
had some discomfort about losing the ability to do that.
MR. SAUSER stated that generally speaking, the transition seemed to
have gone fairly smooth in the facilities, which he felt was partly
do to the fact that it was implemented gradually, and the
department had also tried to provide counseling services at the
same time. Mr. Sauser advised members that smoking was very
restrictive in the facilities that still allowed smoking, and the
department had cut back on people's liberty to smoke throughout the
facilities quite some time ago, so they were somewhat used to some
level of restriction.
REPRESENTATIVE JAMES asked what the main purpose was for not
allowing smoking in the prison facilities.
MR. SAUSER advised members there had been complaints from various
facilities, and work site to work site, so the department decided
to move in the direction of not allowing smoking in the facilities.
REPRESENTATIVE JAMES asked if the complaints were from state
employees, other prisoners or the general public.
MR. SAUSER stated that the department had received complaints from
both staff and prisoners. In the case of prisoners, the
department's normal response was to attempt to accommodate separate
cells for smokers and non-smokers. He stated that he felt it was
more the staff complaints, in particular facilities, that resulted
in the ban of smoking.
Number 190
REPRESENTATIVE ROKEBERG asked if the facility that was realizing
problems because of the ban on smoking was "Mike-Mod" at the Cook
Inlet Pretrial facility.
MR. SAUSER advised members it was the Fairbanks Correctional
Center.
REPRESENTATIVE ROKEBERG asked what facilities yet allowed smoking.
MR. SAUSER advised members that the Palmer Correctional Center
allowed smoking outdoors, the Hiland Mountain Correctional Center
allowed smoking outdoors, the sentenced facility at the Wildwood
facility allowed smoking outdoors, and the Spring Creek facility
allowed smoking outdoors and in the individual cell if the roommate
did not object.
CHAIRMAN GREEN noted that Mr. Sweet had requested to speak again.
MR. SWEET advised members that he felt someone was mistaken because
years ago they did get prisoners out of the Palmer Correctional
Center and take them down town to work in the ball fields, et
cetera, and they did not have to be armed or require state
supervision. He stated that the facility would just check the
individual's drivers license to make sure they were not wanted
somewhere.
REPRESENTATIVE CROFT moved to report HCS CSSB 1(JUD) out of
committee, as amended, with the attached zero fiscal notes and
individual recommendations. There being no objection, HCS CSSB
1(JUD) was reported out of committee.
Number 293
CHAIRMAN GREEN called a brief at-ease at 2:00 p.m. The meeting
reconvened at 2:04 p.m.
HB 10 - MANDATORY MEDIATION/DESIGN PROF LAWSUITS
CHAIRMAN GREEN advised members they would next consider CSHB 10
(L&C), "An Act requiring mediation in a civil action against an
architect, engineer, or land surveyor; amending Rule 100, Alaska
Rules of Civil Procedure." As Chairman Green was the prime sponsor
of the bill, he asked that his legislative aide, Jeff Logan,
explain the bill to the committee.
JEFF LOGAN, Legislative Assistant to Representative Joe Green,
advised members that HB 10 was an effort to keep people out of
court, not by restricting their rights to file an action, but
rather by providing an alternative venue, and an alternative method
to address their complaint.
MR. LOGAN explained that the goal of the bill was to facilitate a
mutually agreeable pretrial settlement. He noted that if a
plaintiff was seeking damages from a design professional, the case
must go to mediation. Mr. Logan noted that there were a few
specific, limited exceptions. He stated that unless all the
parties to the suit agreed to waive the mediation process they
would go to court, which was the first exception. Mr. Logan stated
that if the judge assessed the defendant with all the costs of the
mediation, that in those cases, the defendant could opt out and go
straight to court.
MR. LOGAN advised members they envisioned the process as someone
going to court and filling out some forms and file them with the
court. The case would then be assigned to the judge, and after the
defendant is served, a mediator would be appointed by the court.
If the parties could agree on the mediator, the judge would appoint
that person, and if they did not agree, there was a process where
the judge would select three names and they would work between the
parties to find one they did like. At that point, the plaintiff
and the defendant would meet with the mediator in an informal
conference. Prior to this meeting, the parties could provide the
mediator with up to a five page brief that explained the situation
as they saw it. The mediator could meet individually with the
parties after the initial meeting, but they must all meet together
the first time.
MR. LOGAN pointed out that the meetings were private, the
discussions would be confidential, and the mediator could not be
called upon in court to discuss what occurred in the meetings. He
advised members that there was a process for discovery set out in
Civil Rule 26, which was immediate, mandatory discovery.
MR. LOGAN advised members if one of the parties felt they could not
get what they wanted from the mediation process, they could, at
that point go to court. If the parties thought they could succeed
with the mediation process, they would continue until they reached
a settlement. The plaintiff would file a motion for dismissal and
it would be over.
MR. LOGAN noted that the question had been posed as to why the bill
referred only to design professionals. He advised members that
Representative Green had received a letter dated December 12, 1994,
from a constituent who asked for some means to separate, and
determine, some way to find those actions that really had merit.
Mr. Logan pointed out that his office had gone through a process
for the past couple of years, and over that time period, no one
else had asked to be involved in the type of process offered in HB
10, which was why it only applied to design professionals.
MR. LOGAN expressed that the question had also been posed as to
whether the bill was addressing tort reform. He stated that the
action did not involve, or address in any way, joint or several
liability and did not limit awards of economic, or non-economic
damages, did not address collateral source, nor did it address
punitive damages, or penalize parties or bring frivolous suits.
For those reasons Representative Green did not believe it was tort
reform, but a civil justice process and procedure reform.
Number 525
REPRESENTATIVE BERKOWITZ asked if Mr. Logan had an idea as to the
number of mediation cases filed with the court system.
MR. LOGAN advised members he could not answer that question because
the court system did not maintain a record of those types of
actions. He felt the design professionals might be able to address
that question.
REPRESENTATIVE BERKOWITZ asked how the mediation would go if one
design professional was one of several co-defendants.
MR. LOGAN advised members they would mediate as a group, and could
appoint someone within the group to represent them during the
mediation process.
REPRESENTATIVE BERKOWITZ stated then, that anytime there was a
design professional as a co-defendant, mediation would be
available.
MR. LOGAN stated that would be correct.
REPRESENTATIVE BERKOWITZ disagreed with the assessment that the
proposed legislation was not tort reform. He stated that if he
understood Mr. Logan correctly, that he said there would be no
damage limitation, no punitive damage cap, and no non-economic
damage cap.
MR. LOGAN advised members that would be correct.
CHAIRMAN GREEN pointed out that in mediation, the settlement would
be agreed to, not court rendered, which was a lot different than
tort reform.
Number 600
REPRESENTATIVE JAMES noted the response by Mr. Logan regarding why
the bill would effect only design professionals, and asked if they
had asked others if they wanted to be included in the proposed
legislation.
MR. LOGAN advised members they had not.
REPRESENTATIVE JAMES asked if Mr. Logan could explain how the costs
were paid.
MR. LOGAN referred to the Rules of Court, Rule 100, which was what
the bill was based on. Mr. Logan advised members that the judge
would decide who would pay; however, it was generally born equally
by the parties involved. He stated that if for some reason that
could not happen, the judge would issue an order stating the
defendant, or the plaintiff would be responsible for a higher
percentage.
CHAIRMAN GREEN noted that if the judge ordered 100 percent of the
costs to be born by the defendant, his recourse would then be to
opt out of the mediation process.
REPRESENTATIVE BERKOWITZ felt it might be a good idea to have the
Judicial Council, or some other record keeping group, oversee the
process in order that it could be used as a pilot program in the
future. If other groups wished to follow suit, the hard data would
be available for review purposes as well as a pattern to follow.
Number 713
REPRESENTATIVE JAMES agreed with the idea of a pilot program, and
asked the Chairman if he would be willing to include some language
within the bill that would reflect that, and that other groups
would have the opportunity to opt in if they wished.
CHAIRMAN GREEN felt that was a possibility, although he noted the
bill had passed through another committee who perhaps did not feel
it was necessary to cover a wide spectrum of people; however, to
consider it a pilot project, in its own right, he felt would be
appropriate.
REPRESENTATIVE BERKOWITZ felt that rather than have an opt-in
clause included within the bill language, the data could be kept
for later consideration.
CHAIRMAN GREEN pointed out that the minutes of the meeting would
reflect the intent of the committee; however, he had no objection
to crafting a letter that would state HB 10 would be useful as a
pilot project.
REPRESENTATIVE BERKOWITZ noted that when discussing tort reform,
they had suggested that the Judicial Council maintain records on
the issue of settlements.
CHAIRMAN GREEN expressed that to require the Judicial Council to do
more than review the process might result in a fiscal note because
of the additional burden placed on them.
REPRESENTATIVE JAMES asked if it would be possible for the design
professionals to maintain some type of record that would reflect
how the program was working.
CHAIRMAN GREEN thought that could be quite possible.
Number 854
COLIN MAYNARD, Representative, Alaska Professional Design Council,
advised members they were in favor of the bill and that they had
been attempting to get some sort of legal system reform because 90
percent of the cases did not go to trial. He explained that the
discovery process was very expensive, and a week before the
scheduled trial date, they were faced with a business decision of
settling for $50,000 or spending $50,000 to defend a case, which
was a gamble that the decision would be in your benefit. Mr.
Maynard pointed out that there had been enough publicity about
adverse decisions that did not make much sense, and the gamble was
not a very inviting proposition.
MR. MAYNARD advised members the Design Council felt the system
presented in HB 10 would work because it would require immediate,
mandatory discovery that would provide a good idea of what the case
was about. At that point, the parties go to mediation and the case
should settle during that process. He noted that it was their
understanding that in the state of Washington 80 percent of the
cases were settled either during mediation, or shortly thereafter.
Mr. Maynard noted that most of the cases would be out of the system
at that point; they would not go through the deposition or
interrogatory process and would be much less costly. He expressed
that the plaintiff would also have an independent reviewer advising
as to whether they had a case or not, early on in the process.
MR. MAYNARD urged that members vote in favor HB 10, adding that it
would also lighten the load on the court system, as well as save
money for the design professionals.
Number 975
REPRESENTATIVE CROFT advised members he was in support of the
proposed legislation, although pointed out that in the letter
presented by the Design Council, it stated that over 90 percent of
civil suits never went to trial. He stated that he did not
understand why that was not considered a success, rather than a
failure. Representative Croft advised members that the discovery
process provided merits to a case, and he felt that the more cases
that could amiably settled, rather than forced to trial, the
better. Representative Croft asked why the settlement figure was
something that showed the legal system needed modification.
MR. MAYNARD stated that the difference to him was that most cases
go through a long, drawn out process and cost a lot of money to get
no where. He advised members if the process could be cut in half,
or more, it would save everyone a lot of money and time. Mr.
Maynard stated that the reason cases did not go to trial was
because they had reached a business decision that it would be
cheaper to not take it further, whether there was merit to the case
or not.
REPRESENTATIVE BERKOWITZ advised members that normally there was a
time-line on a court case, and he could not see any time-line in
the mediation process. He stated that if one of the concerns was
that the process would be drawn out, that might be addressed in
some manner.
MR. MAYNARD stated that the bill reflected that mediation would
take place within a certain amount of time after the mandatory
discovery process was completed. He added that that might be
handled by regulation; however, thought it was included within the
bill language.
MR. LOGAN explained that the time-line language was not included in
the bill, but according to the bill drafter, could be found in the
Court Rules to the extent that there were time-lines and date
triggers in Rule 100 Rule 26, and other Court Rules.
REPRESENTATIVE BERKOWITZ advised members that was one of the
problems, as he saw it, that you could protract those proceedings
and essentially bankrupt either the plaintiff or the defendant,
which would not expedite the process at all.
REPRESENTATIVE JAMES pointed out that she was comfortable that the
court would have time-lines on a mediation procedure and did not
feel it opened up any kind of door.
REPRESENTATIVE BERKOWITZ wanted to review Court Rule 26.
CHAIRMAN GREEN called a brief at-ease at 2:25 p.m., and reconvened
the meeting at 2:28 p.m.
REPRESENTATIVE BERKOWITZ stated that after reading Rule 26, his
concern was satisfied.
REPRESENTATIVE BUNDE moved to report CSHB 10(L&C) out of committee
with individual recommendations, and the attached zero fiscal note.
There being no objection, CSHB 10(L&C) was reported out of
committee.
Number 1272
ADJOURNMENT
There being nothing further to come before the committee, Chairman
Green adjourned the House Judiciary Committee meeting at 2:30 p.m.
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