Legislature(1997 - 1998)
04/15/1998 01:12 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 15, 1998
1:12 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Jeannette James
COMMITTEE CALENDAR
HOUSE BILL NO. 473
"An Act relating to training and certification of fire fighters,
fire instructors, and certain emergency responders; and providing
for an effective date."
- MOVED CSHB 473(JUD) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 1
Proposing an amendment to the Constitution of the State of Alaska
relating to the duration of a regular session.
- MOVED HJR 1 OUT OF COMMITTEE
HOUSE BILL NO. 122
"An Act relating to prisoner litigation, post-conviction relief,
and sentence appeals and to execution on judgments against
prisoners' accounts; amending Alaska Rule of Administrative
Procedure 10(e), Alaska Rule of Appellate Procedure 502(b), Alaska
Rule of Civil Procedure 26, and Alaska Rule of Criminal Procedure
35; and providing for an effective date."
- MOVED CSHB 122(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 452
"An Act relating to registration, disclosures, and reports by
certain nonprofit corporations."
- REMOVED FROM CALENDAR
HOUSE BILL NO. 324
"An Act relating to liens for municipal assessments for certain
utility improvements."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 473
SHORT TITLE: FIRE TRAINING AND CERTIFICATION
SPONSOR(S): STATE AFFAIRS
Jrn-Date Jrn-Page Action
3/24/98 2722 (H) READ THE FIRST TIME - REFERRAL(S)
3/24/98 2723 (H) JUDICIARY
4/08/98 (H) JUD AT 1:00 PM CAPITOL 120
4/08/98 (H) MINUTE(JUD)
4/15/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 1
SHORT TITLE: LIMIT LEGISLATIVE SESSION TO 90 DAYS
SPONSOR(S): REPRESENTATIVES(S) ROKEBERG, SANDERS, Kohring
Jrn-Date Jrn-Page Action
1/13/97 21 (H) PREFILE RELEASED 1/3/97
1/13/97 21 (H) READ THE FIRST TIME - REFERRAL(S)
1/13/97 21 (H) STATE AFFAIRS, JUDICIARY, FINANCE
4/01/97 900 (H) COSPONSOR(S): KOHRING
3/03/98 (H) STA AT 8:00 AM CAPITOL 102
3/04/98 2490 (H) STA RPT 3DP 1DNP 2AM
3/04/98 2490 (H) DP: DYSON, VEZEY, HODGINS; DNP:
ELTON;
3/04/98 2490 (H) AM: JAMES, BERKOWITZ
3/04/98 2490 (H) 2 FISCAL NOTES (LAA, GOV)
3/27/98 2775 (H) WITHDRAW FROM CMTE Y3 N23 E8 A6
4/15/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 122
SHORT TITLE: PRISONERS: LITIGATION & DEBTS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
2/10/97 292 (H) READ THE FIRST TIME - REFERRAL(S)
2/10/97 292 (H) STA, JUDICIARY, FINANCE
2/10/97 292 (H) 4 ZERO FNS (2-ADM, COR, LAW)
2/10/97 292 (H) GOVERNOR'S TRANSMITTAL LETTER
2/09/98 2269 (H) STA REFERRAL WAIVED
4/17/97 3035 (H) JUD RPT CS(JUD) NT 2DP 3NR
3/11/98 (H) JUD AT 1:00 PM CAPITOL 120
3/11/98 (H) MINUTE(JUD)
4/15/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
KEVIN JARDELL, Legislative Administrative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-4990
POSITION STATEMENT: Testified on CSHB 473(JUD).
DAVE TYLER
P.O. Box 3023
Homer, Alaska 99603
Telephone: (907)235-3155
POSITION STATEMENT: Testified on CSHB 473(JUD).
PAT EGGERS, President
Alaska State Fire Fighters Association
P.O. Box 2402
Douglas, Alaska 99824
Telephone: (907) 364-2998
POSITION STATEMENT: Testified on CSHB 473(JUD).
JASON ELSON, Chief
Kenai Fire Department
210 Fidalgo
Kenai, Alaska 99611
Telephone: (907) 283-7666
POSITION STATEMENT: Testified on CSHB 473(JUD).
KEN BISCHOFF, Director
Division of Administrative Services
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811
Telephone: (907) 465-4336
POSITION STATEMENT: Testified on CSHB 473(JUD).
RICK URION
118 Fifth Street
Douglas, Alaska 99824
Telephone: (907) 364-2315
POSITION STATEMENT: Testified in support of HJR 1.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on HB 122.
ACTION NARRATIVE
TAPE 98-60, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:12 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter and Croft.
Representative Berkowitz arrived at 1:22 p.m. and Representative
Rokeberg arrived at 1:23 p.m.
HB 473 - FIRE TRAINING AND CERTIFICATION
Number 0023
CHAIRMAN GREEN announced the first order of business to be HB 473,
"An Act relating to training and certification of fire fighters,
fire instructors, and certain emergency responders; and providing
for an effective date." He stated that the sponsor is here with
some amendments.
REPRESENTATIVE MARK HODGINS stated that he would like the committee
to consider CSHB 473( ), Version F.
Number 0063
REPRESENTATIVE CON BUNDE moved CSHB 473( ), Version F, for
discussion purposes.
CHAIRMAN GREEN asked if there was an objection. Hearing none, CSHB
473( ), Version F, was before of the committee for discussion
purposes.
REPRESENTATIVE HODGINS stated it is his understanding that everyone
is in agreement to the bill. He stated he would propose some small
amendments, one would change the effective date of the bill to
July 1, 2000 which would then create a zero fiscal note. He said
the other amendment is on page 3, line 16, to take out "do cause"
and insert "reason to believe" and insert "certified or claiming to
be certified" in front of person. This would be to reduce
litigation potential.
Number 0230
REPRESENTATIVE BUNDE made a motion to adopt Amendment 1.
Number 0305
REPRESENTATIVE ERIC CROFT stated he did not have an objection to
Amendment 1; however, he would like the sponsor to explain the
differences. He asked "On Amendment 1, the 'person certified or
claiming to be certified' is there still authority in this board to
investigate someone who isn't claiming to but should be?" He
stated that before the amendment, the bill caught everybody in
violation and with the amendment, it would just be those who are
certified or claim they are that would be sought after. He asked
why wouldn't "we" want to investigate a complaint against anyone
who was in violation without the proper training.
Number 0385
KEVIN JARDELL, Legislative Administrative Assistant to
Representative Joe Green, stated the reason for that particular
wording was because there is nothing in the bill that requires
prior service personnel to be certified. It is an opt-in program,
leaving it blank would lead to investigations on people who do not
want to play the game. The idea was to clarify that the only
people who can be investigated are people who are opting into the
program.
Number 0468
CHAIRMAN GREEN commented there was talk about the small volunteer
areas that may not want to be certified.
Number 0484
REPRESENTATIVE CROFT asked if there was any requirement in the bill
that before someone offers a fire services training program, they
be certified.
Number 0500
MR. JARDELL replied he did not think there is any requirement in
the bill that requires certification.
Number 0538
REPRESENTATIVE CROFT stated that if he went out under subparagraph
4 and started a fire services training program and never claimed to
be certified, Amendment 1 would not give the commission the
authority to investigate him if they had reason to believe that he
was performing a fire services training program without meeting the
minimum training and performance standards. He stated that under
Amendment 1, since he is not claiming to be competent he would not
have to prove that he is.
Number 0582
CHAIRMAN GREEN referred to line 26, page 2, and asked if changing
"may" to "shall" would solve the problem.
Number 0606
REPRESENTATIVE CROFT said he is not trying to make it mandatory if
there are good reasons to make it optional.
Number 0673
REPRESENTATIVE HODGINS stated that Mr. Tyler could probably answer
the question.
Number 0692
DAVE TYLER, testified via teleconference from Homer that the reason
is to set a state recognized standard. He said it is providing an
acceptable standard to approve programs. He stated if there is an
unapproved program in existence, they would not be a legitimate
fire department and would be open to a great deal of liability.
Number 0751
REPRESENTATIVE CROFT stated it now makes sense that only the people
who claim to be certified would be investigated.
Number 0787
REPRESENTATIVE BRIAN PORTER asked if someone could point out the
language that makes this optional.
Number 0810
MR. TYLER replied that it is on page 3, line 16 and on page 2, line
26.
REPRESENTATIVE PORTER stated that presents a bit of a problem
because if they adopt them, they are applicable. He pointed out
that the it does not say that the fire service organization has the
ability to opt-in or opt-out.
Number 0856
MR. JARDELL stated there is no requirement that any fire service
personnel be certified. Because there is no requirement to be
certified, they have no power to keep someone from performing these
duties. So, if the council establishes criteria the only way they
have any authority or power over an individual or department would
be if they actually participated in the certification program. The
power would then be to take away their certificate if the
organization at some point did not meet the qualifications.
Number 0853
REPRESENTATIVE HODGINS stated it was his understanding this bill
would ease into the status of the fire council. It is not
mandatory at this point, once they develop some rules, regulations
and some standards they then will come back and ask that it be made
mandatory. He stated recognizing the fact that there are a lot of
rural volunteer fire departments, a mandatory certification may
prohibit those departments from fighting fires at this time. The
bill gives those departments plenty of time to "get up to speed".
Number 0957
CHAIRMAN GREEN stated the concept would be that a fire department,
may or may not adopt these guidelines. If they do, then they will
have a certain length of time to train all the people who serve
that particular fire department.
Number 0974
REPRESENTATIVE HODGINS stated this bill will develop a level of
standardization for all departments, some time in the future.
Number 0989
CHAIRMAN GREEN asked if this would preclude anyone that doesn't
have this policy adopted, from going to help a certified department
in an emergency.
Number 1008
REPRESENTATIVE HODGINS replied he didn't believe so. This would
develop a requirement for the same level of training for all
departments.
Number 1048
REPRESENTATIVE ETHAN BERKOWITZ asked what is the pattern language
for this legislation.
Number 1074
REPRESENTATIVE PORTER stated it would be very similar to law
enforcement. He said "It is composed of professionals in the
organization that would develop regulations to implement that basic
requirements. As a matter of fact they would be setting the basic
requirements." He pointed out that many of the programs that exist
in the urban areas would probably not have to do anything more than
certify their programs.
Number 1145
REPRESENTATIVE BERKOWITZ stated that one of the distinctions that
exists between law enforcement and fire service protection is that
there is a large degree of volunteer firefighting in Alaska. He
explained that he would want any fire fighting legislation to
accommodate (INDISC. -- WHISPERING) on a volunteer basis.
Number 1175
REPRESENTATIVE HODGINS stated that it is a conceptual law, allowing
them to set up their programs and then ask for a mandatory
participation in a future years. He stated this sets up the
standards for the future and would not impact volunteer
organizations at this time.
Number 1247
CHAIRMAN GREEN stated that without further legislation this bill
will not require any communities to adopt the standards.
REPRESENTATIVE HODGINS stated that it would be the purview of the
council after July 1, 2000, and then the legislature would have to
draft a bill requiring mandatory participation.
Number 1274
REPRESENTATIVE BERKOWITZ stated that the intent of this legislation
is to permit communities who wish to adopt this standard, to be
able to do so.
Number 1283
REPRESENTATIVE HODGINS stated that it would allow the fire
standards council to be formed to develop the standards and then it
would go back to the communities with the universal standard that
they would like to see implemented in the future.
Number 1301
REPRESENTATIVE BERKOWITZ stated that the council could then mandate
the standards in the smaller communities.
CHAIRMAN GREEN replied that not unless there is further
legislation.
REPRESENTATIVE BERKOWITZ asked if a community would have to opt-in
to this standard.
CHAIRMAN GREEN replied that is correct.
REPRESENTATIVE NORMAN ROKEBERG asked where that is stated in the
bill.
REPRESENTATIVE HODGINS replied page 2, line 26.
Number 1345
REPRESENTATIVE CROFT stated that the correct answer would be that
it isn't in the bill and because there isn't a requirement, it
isn't mandatory. He stated that he sees how this was modeled off
of the police standards council. He explained that is his concern
because the police standards council is mandatory with an opt-out
option if a policy with a similar criteria is established. He
stated that the bill states "may adopt regulations establishing
minimum training and performance standards". He explained that
even though they are not intending that everyone has to meet that
requirement, it is there. He asserted that he would be more
comfortable if there is a sentence that states an entity can opt-
in if they want to.
Number 1422
REPRESENTATIVE PORTER stated that he would agree and suggested that
the sentence would have to crafted carefully. It should be the
reverse of the police standards, saying that an entity has the
ability to opt-in or opt-out at their discretion. He stated that
the one thing that the police standards does, that the bill does
not, is consider entrance requirements for being hired.
Number 1517
REPRESENTATIVE HODGINS stated that this bill will be brought
forward to the fire standards council and they will come up with
some standards and then come back. He stated that the council may
decide to not make it mandatory. He stated that he would feel
comfortable allowing the bill to go forward and then the fire
standards council could develop the standards that they would like.
He stated that he would not be against having specific language put
in that it is an opt-in program.
Number 1582
REPRESENTATIVE BERKOWITZ stated that he wished Representative James
was here to talk about the evils of allowing regulations to develop
downstream without any kind of legislative oversight. He stated
that the more that they can do to set up the parameters to develop
the standards, is best.
Number 1626
REPRESENTATIVE CROFT stated that he withdraws his objection to
Amendment 1.
CHAIRMAN GREEN asked if there was a further objection to Amendment
1. Hearing none, Amendment 1 was adopted.
Number 1634
REPRESENTATIVE BERKOWITZ made a motion to adopt a conceptual
amendment to allow an opt- in provision.
Number 1642
REPRESENTATIVE PORTER stated that he has a friendly amendment, that
the amendment should allow the ability to opt-in or opt-out.
Number 1660
REPRESENTATIVE HODGINS stated that he would not have any objections
to that.
Number 1682
REPRESENTATIVE BERKOWITZ restated his conceptual amendment to be to
allow an opt-in or opt-out provision.
CHAIRMAN GREEN asked if there was an objection. Hearing none, the
amendment was adopted.
Number 1700
CHAIRMAN GREEN stated that there is a new fiscal note to go along
with the July 1, 2000 date.
REPRESENTATIVE PORTER stated that he wants to make sure that it is
on the record that it is his opinion that there is nothing in this
legislation that gives permission to the council to establish
entrance requirements for fire service personnel. In order for
that to be done a proposal would need to be made to the legislature
for legislation.
Number 1753
REPRESENTATIVE BERKOWITZ stated that on page 2, Section A, assuming
that they exercise the power to establish minimum training and
performance standards, a participant could be excluded from being
a firefighter if they fail to perform a certain test. He stated
that language would allow the screening out of candidates.
Number 1781
REPRESENTATIVE PORTER stated that he would interpret performance
standards to be (INDISC. -- PAPER RIPPING), which would probably
evolve to pre-hire testing in those areas. It does not give the
ability to dictate, height, age or weight et cetera.
Number 1820
REPRESENTATIVE BERKOWITZ stated that he recalled a dispute about
women's inability to carry dead weight.
REPRESENTATIVE PORTER stated that there are a myriad of validation
requirements for physical tests that have the ability to reject an
applicant.
Number 1862
REPRESENTATIVE HODGINS stated that not all firefighters physically
fight fires with the example of smokey the bear.
Number 1886
REPRESENTATIVE ROKEBERG stated that when there is professional
firefighters mixing with volunteers there is no policy direction
concerning this. He asked where the money would be coming from.
CHAIRMAN GREEN stated that the operation will be funded by
statutory designated receipts, it is not a dedicated fund.
Number 2000
REPRESENTATIVE ROKEBERG repeated his concern is of disqualifying
volunteers if standards are too high.
MR. TYLER replied that currently, there is a set of criteria to be
a firefighter "one", the standards are created by the council. He
stated that it allows for rural firefighting and that would be more
realistic than what is being done right now.
Number 2058
REPRESENTATIVE PORTER stated that he would guess there would be an
evolution of performance standards and training standards that
would differ between a volunteer and a paid person.
MR. TYLER stated that what that in Homer that firefighter "two"
positions may all be volunteers, where in Kenai the same position
may be paid. The difference is in the size of the department and
the roles they play in the communities.
Number 2115
CHAIRMAN GREEN asked if a volunteer would be subject to the same
training as a professional.
MR. TYLER replied yes, a volunteer would be subject to the standard
of the department.
Number 2128
REPRESENTATIVE ROKEBERG asked what are the levels of firefighting
certification.
MR. TYLER replied that it is something that is in progress, the
levels are done through accredited department (INDISC.)
REPRESENTATIVE ROKEBERG stated that he wondered if there was any
statutory authority there.
REPRESENTATIVE HODGINS stated that it was his understanding that
there isn't, each community does its own.
MR. TYLER stated that it comes from the fire service training
standards that are based on the national standards but they do not
(INDISC. -- TAPE STATIC) rural considerations.
PAT EGGERS, President, Alaska State Fire Fighters Association,
stated that he did not believe there is a statutory authority. He
stated that there is a somewhat standardized firefighter "one"
curriculum, that is offered from certified departments to some of
their members. It is what the state of Alaska fire service
training is able to provide right now.
Number 2203
CHAIRMAN GREEN asked that presently a Juneau firefighter "one" may
have different qualifications than an Anchorage firefighter "one"
or would they be the same.
Number 2219
MR. EGGERS stated that it would essentially be the same.
Number 2238
CHAIRMAN GREEN stated that this would ensure that those who opted
into the program would be exactly the same and meet national
standards.
MR. EGGERS replied that according to the bill he would expect it to
mirror the standards but in smaller areas they might not be able to
do so. Therefore, they might be different tiers for different size
areas.
Number 2249
REPRESENTATIVE ROKEBERG said, "I don't know if -- the question
about forestry."
Number 2250
REPRESENTATIVE HODGINS stated that the council would set up the
standards and will look at all aspects of firefighting whether its
forestry or structure et cetera. He stated that to his knowledge
this would not impact any relationship with forestry type
firefighters versus any other fire personnel.
Number 2275
REPRESENTATIVE ROKEBERG stated that we have not heard from a state
forester on the bill.
Number 2283
REPRESENTATIVE HODGINS replied that he could not imagine the state
forest fighting section would not have some sort of standards and
would embrace the ability to set up standards so that communities
would have some standardization of qualifications to rely on.
Number 2300
CHAIRMAN GREEN stated that smaller communities might not actually
have the same standards but if they opt into this wouldn't they be
required to have the same standards.
Number 2311
MR. EGGERS stated that the standard will be set to the size of the
community and what they are able to do. He stated that he asked
Mr. Tyler to speak on this.
Number 2322
MR. TYLER stated that is correct. It would look at the individual
programs, it is based on the national standards but also
considerations will be taken on the size of the communities. Rural
communities are not going to have to learn to do operations on
high-rise buildings.
Number 2356
CHAIRMAN GREEN asked what would happen if a Fort Yukon firefighter
"two" moves to Anchorage, would he have to be re-certified.
MR. TYLER replied that he would have to add on to his certification
because of the different responsibilities in Anchorage.
Number 2371
REPRESENTATIVE PORTER stated that a certification program that is
tailored to each community would present a large problem in
portability certifications. He suggested that eventually they will
standardize by the size of the community, there cannot be a
standard that is totally un-uniform.
Number 2398
REPRESENTATIVE HODGINS stated that the council would probably
address those questions and come up with a succinct answer and
standardization that will utilize the concerns the committee has.
He stated that they could only do that if this bill is passed.
CHAIRMAN GREEN asked if that would mean that the council would come
up with hybrid standards for the different needs of the communities
or would it be a uniform standard.
Number 2443
REPRESENTATIVE HODGINS stated that it would be tailored to the
needs of the community, however, if someone was to transfer they
would have to acquire the standards of that department.
TAPE 98-60, SIDE B
Number 0019
REPRESENTATIVE PORTER stated that the bill has to pass and the
council needs to sit down and grapple with how to develop the
standards. He stated that the minimum standards are going to be
portable to an area that is similar.
Number 0080
REPRESENTATIVE ROKEBERG stated that he is supportive of the
concept, but still has some questions has to where the money will
come from. He stated that if there is a lack of the ability on the
part of the program receipts to pay for the professional staff,
they are then back into the general fund. He stated that he is not
satisfied that the forestry sector has had input into this
legislation.
Number 0140
CHAIRMAN GREEN asked where the statutory designated receipts come
from.
Number 0147
MR. EGGERS stated that the receipts come from certain programs that
are put on by fire service training.
Number 0199
JASON ELSON, Chief, Kenai Fire Department, testified via
teleconference from Kenai that essentially the Department of Public
Safety had a problem with the $178,000 fiscal note. He stated that
"they" asked that it be removed and that alternative funding
sources be looked into to accomplish the goals of the council. He
stated that in the division of forestry is also members of the
Alaska fire-chiefs association and they are in consensus with them
on the bill.
REPRESENTATIVE ROKEBERG stated that there is nothing on the record
from them to that effect.
Number 0254
KEN BISCHOFF, Director, Division of Administrative Services,
Department of Public Safety, stated that his charge was to find a
solution that would not force more trooper positions vacant and not
deteriorate other program receipt services. The fiscal note does
that, it is the intent that there is no fiscal impact to the
department and the only way to do so is to find a some way for them
to generate revenue and structure it in such a manner that it will
meet the statutory designated receipt classification, which is not
counted in the total general fund budget. He stated that he did
not know if the fire service had a complete plan but it is his
understanding that they are entertaining the motion of assessing
themselves and funneling that money throughout a private entity.
He continued to state that whether the designated program receipt's
statute would allow the state to submit a budget request if they
are contracting with a private entity or a municipality. He stated
that would then take those revenues off of the general fund budget
and treat them as another revenue source which would then be more
receptive to the governor and to the legislature.
Number 0323
CHAIRMAN GREEN stated that is correct and it would skirt the
dedicated fund.
MR. BISCHOFF replied that is correct. The legislature still has to
appropriate the money.
Number 0333
CHAIRMAN GREEN stated that he thought that would still show up as
a budget category but that is a finance problem.
Number 0350
REPRESENTATIVE ROKEBERG stated that he is reading from a letter
dated March 31, 1998 by Mr. Malmquist of Central Emergency Services
of Soldotna that stated "Alaska Fire Chiefs Association has
proposed a $1 per capita and program receipt concept as a stable
funding source for fire service training." Representative Rokeberg
stated that it better be more than a buck.
Number 0377
REPRESENTATIVE PORTER made a motion to move CSHB 473(JUD), Version
F, as amended with individual recommendations with the fiscal note
dated 4/8/98.
CHAIRMAN GREEN asked if there was an objection. Hearing none, CSHB
473(JUD), Version F, moved from the House Judiciary Standing
Committee.
REPRESENTATIVE PORTER stated that the committee adopted the wrong
fiscal note. He made a motion to rescind his motion.
CHAIRMAN GREEN asked if there was an objection. Hearing none, it
was so ordered.
REPRESENTATIVE PORTER made a motion to move CSHB 473(JUD), Version
F, as amended with individual recommendations with the fiscal note
dated 4/15/98.
CHAIRMAN GREEN asked if there was an objection. Hearing none, CSHB
473(JUD), Version F, as amended, moved from the House Judiciary
Standing Committee.
HJR 1 - LIMIT LEGISLATIVE SESSION TO 90 DAYS
Number 0422
CHAIRMAN GREEN announced the next bill to come before the committee
was HJR 1, Proposing an amendment to the Constitution of the State
of Alaska relating to the duration of a regular session. He asked
Representative Rokeberg, prime sponsor, to introduce HJR 1.
Number 0467
REPRESENTATIVE ROKEBERG, Prime Sponsor, said HJR 1 is a
straightforward resolution which limits the length of a legislative
session to 90 days. He directed the committee's attention to the
attached fiscal note which indicates a savings of as much as $1.5
million in staffing and other areas. He pointed out the
information contained in committee members' packets indicates the
vast majority of other legislatures meet for less than 120 days.
He suggested this issue is important from his view of legislative
reform and believes people of the state deserve a chance to vote on
the issue. He is of the opinion the vast majority of the citizens
of the state of Alaska would approve this measure. Among the
reasons for this resolution is what he considers the myth of a
citizen legislator and he believes this bill would help overcome
that myth.
CHAIRMAN GREEN said his concern was the legislature would still
begin in January during the bad weather and he would almost prefer
to move it another month to avoid the problem of getting in and out
of Juneau.
REPRESENTATIVE ROKEBERG noted the constitution states the
legislature shall convene in regular session on the fourth Monday
in January, but allows for the month and day to be changed by law.
The start date was indeed changed to an earlier date so that
legislators could get home in time for harvesting and to plan for
summer activities. However, he was of the opinion the fourth
Monday should be re-examined and the legislature would be more
readily able to convene on the fourth Monday with passage of this
resolution.
Number 0705
REPRESENTATIVE BERKOWITZ noted that Representative Rokeberg had
indicated while testifying in the State Affairs Committee that he
would be supportive of 100 days instead of 90.
REPRESENTATIVE ROKEBERG commented he prefers 90 days, but he
doesn't have any strong feelings about 100 days.
CHAIRMAN GREEN noted this bill allows the regular session to be
extended one time for up to ten days and wondered if that was a
result of a prior committee hearing.
REPRESENTATIVE ROKEBERG said that language currently exists in the
constitution.
CHAIRMAN GREEN said he interprets this language as a regular
session being 90 days and with a two-thirds vote an extension of 10
days.
Number 0791
REPRESENTATIVE CROFT noted that some of the accompanying material
discussed establishing a shorter session every other year and
asked if that was done in some states.
REPRESENTATIVE ROKEBERG said some states meet biennially, like
Oregon and others like Washington that designates one year as a
budget year and the other year in which bills can be introduced.
He noted, however, that a number of the states that do meet for
abbreviated sessions have interim activity.
REPRESENTATIVE CROFT pointed out the Oregon legislature meets from
January to late June which is essentially one month longer than
Alaska's session, but Oregon meets every other year. He said that
meeting once for a longer period makes as much sense to him as
having two shorter sessions.
CHAIRMAN GREEN remarked that another legislative bill had been
introduced which called for a biennial budget, which sort of fits
in with what Representative Croft was discussing.
REPRESENTATIVE ROKEBERG expressed skepticism about having a
biennial budget because of oil prices and the forecasting that
occurs in the spring. In his opinion, the budget needs to be
looked at every year.
CHAIRMAN GREEN asked Rick Urion to come before the committee to
present his comments at this time.
Number 0908
RICK URION, testifying on behalf of himself, said he is a firm
believer this is one of the best things that could be done to
improve the legislative arena. He recalled when the 120-day limit
was first proposed, many individuals said it couldn't be done and
those same people say that about a 90-day session. There is no
doubt the legislative process will occupy whatever period of time
allowed. He stated as a person who believes in a citizen
legislature, HJR 1 will return this body back to a citizen
legislature. He expressed confidence this issue would pass
overwhelmingly if it was put before the voters of the state.
CHAIRMAN GREEN inquired if, based on Mr. Urion's past experience as
a legislator and now as a private businessman, he thought the
passage of HJR 1 with the shorter session would broaden the field
of legislative candidates.
MR. URION said there was no doubt in his mind it would broaden the
field. Legislators now have year-round staff in offices in their
home districts which takes away a lot of the argument for not
shortening the session.
Number 1064
REPRESENTATIVE BERKOWITZ said, "On that though, don't you think
that because it's not just permanent staff, but permanent
bureaucracy, permanent administration, that we put ourselves as a
legislature at a little bit of a disadvantage by now being around
for that extra month?"
MR. URION replied that's been one of the arguments over the years.
He commented there are three branches of government and the other
two branches will always be around for a longer period of time,
regardless of what the time period is for the legislative session.
The legislature has time during the interim to hold committee
meetings, meet with their constituents, et cetera.
Number 1113
REPRESENTATIVE BERKOWITZ asked if there was anything magical about
90 days.
MR. URION replied it's three months; it's better than 100 days
because then legislators would have to pay four months rent.
Number 1155
REPRESENTATIVE PORTER made a motion to move HJR 1 from committee
with individual recommendations and the attached fiscal note.
Number 1168
REPRESENTATIVE BUNDE objected. He said committee members are
kidding themselves. The difference between taking time off from a
real job for three months or four months is inconsequential. He
has had discussions with legislators in other states that have
shorter sessions and what it means is that a person is a full time
legislator when not in session because all the committee work must
be done prior to coming into session. With that in mind, he didn't
see that Alaska would gain much with its geographic challenge in
that a lot of money would be expended for legislators to travel to
committee meetings during the interim instead of holding the
meetings when all committee members are convened in one location.
He agreed the public would vote for it, but the public will not be
happy when there is no recognizable savings.
REPRESENTATIVE PORTER said he didn't disagree there would be an
increase in committee work during the interim with a 90-day
session. However, he felt there would be a substantial amount of
savings when comparing the cost of per diem for 60 legislators and
keeping staff for an additional 30 days as opposed to no travel to
any great extent except to a Legislative Information Office because
during the interim the committee can't pass legislation from
committee anyway and amendments can be done by teleconference.
REPRESENTATIVE BUNDE said this may be premature, because he felt
that within five years legislators wouldn't be meeting much face-to-face, but r
REPRESENTATIVE BERKOWITZ expressed concern that it may be difficult
to recruit quality staff for a three-month time period.
REPRESENTATIVE BUNDE suggested eliminating all interim staff if the
committee is interested in saving money.
REPRESENTATIVE ROKEBERG referred to the fiscal note prepared by the
Legislative Affairs Agency which reflected the savings in per diem
and staff for a 30-day period. He took strong exception to the
statement there would be no savings.
Number 1430
CHAIRMAN GREEN asked if there was further discussion. Hearing
none, he asked for a roll call vote. Representatives Croft,
Porter, Rokeberg and Green voted in favor of moving the bill from
committee. Representatives Bunde and Berkowitz voted against it.
Therefore, HJR 1 moved from the House Judiciary Standing Committee
by a vote of 4-2.
HB 122 - PRISONERS: LITIGATION & DEBTS
Number 1470
CHAIRMAN GREEN announced the next bill to come before the committee
was HB 122, "An Act relating to prisoner litigation, post-conviction relief, an
judgments against prisoners' accounts; amending Alaska Rule of
Administrative Procedure 10(e), Alaska Rule of Appellate Procedure
502(b), Alaska Rule of Civil Procedure 26, and Alaska Rule of
Criminal Procedure 35; and providing for an effective date." He
asked Anne Carpeneti to come forward to present her comments on
HB 122.
Number 1500
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, said HB 122 ties up the loose ends of a couple
pieces of legislation that passed in 1995. The first was a fairly
comprehensive bill that addressed finality of judgments and
discouraged recreational litigation by people who had been
convicted and were incarcerated. It required prisoners who filed
lawsuits against the state to pay at least a portion of the filing
fee that other litigants are required to pay when bringing a cause
of action. It did so by requiring prisoners to submit a statement
of their financial position and then to at least pay a filing fee
of 20 percent of the average in their prisoner account or of the
average deposits. She stated that piece of legislation has worked
very well to discourage baseless, frivolous litigation brought by
prisoners. She explained that Section 1 of HB 122 requires the
prisoner to list on a financial statement any money in accounts
outside the prison. Usually a prisoner declares they have no money
and the judge then looks at the computer generated printout of the
prisoner's account activity sent by the prison with the
application. The court is required by statute to select either the
average in the prisoner's account or of the average deposits,
whichever is higher. She stated it's been as low as one cent and
in fact, an application for exemption from the filing fee was
dismissed because the one cent wasn't paid.
MS. CARPENETI further stated the second legislative bill that
passed the legislature in 1995 dealt with DNA evidence, making it
easier to use DNA evidence in a criminal prosecution. At the same
time, the legislature adopted a DNA data bank which required people
convicted of a felony crime against a person to submit to testing
either orally or by a blood test. In practicality, the Department
of Public Safety freezes the samples which allows for screening of
the DNA sample at a later date if the department wishes to do so.
She noted it costs about $1,000 to send the samples out of state
for testing, but she didn't know the cost for testing in-state.
Number 1730
REPRESENTATIVE CROFT inquired if there was any difference in
reliability between the oral and the blood samples.
MS. CARPENETI said she didn't believe so, but the law passed in
1995 gave the option to the person taking the test.
MS. CARPENETI continued with the sectional analysis of HB 122 and
said Section 2 corrects an oversight in the legislation passed in
1995. It should read the automatic disclosure provisions under
Civil Rule 26. She added, "In the meantime, the court system has
actually put in Civil Rule 26 - has provided that automatic
disclosure does not apply to prisoner litigation under AS 09.19,
but it doesn't hurt to have it in here in case they should change
their mind." In Section 3, the definition of "litigation against
the state" is expanded for purposes of the filing fee to make it
clear that it relates not only to appeals from civil actions, but
different sorts of appellate reviews that are available as well.
The prisoners are somewhat creative in calling their action
something other than an appeal, so language was added for
clarification.
MS. CARPENETI further explained the language "an alleged violation
of a person's constitutional rights" has been added in Section 3.
She said, "These don't tend to be related to prison conditions like
overcrowding or sending you outside or treatment or visitation.
What they are, are generally a person will claim an action by the
state - for example, the police in a search or something or an
arrest violating constitutional rights even though it did not
affect their original charge and conviction - so we've included
that as part of the definition of litigation against the state."
MS. CARPENETI said Section 4 adopts a class A misdemeanor. She
explained there was no provision for enforcing the DNA data bank
when the legislation was passed so if a person refuses to submit to
DNA testing, there is no means to require the person to do so. She
said, "There are several different ways of doing that here in the
bill. One, it creates a class A misdemeanor for a person who is
convicted of a crime for which they have to submit to a test to
refuse when asked to submit to the test by somebody working for the
state. And again, it applies to persons convicted of felonies
against the person except for custodial interference. Actually, it
also applies to juveniles 16 years of age or older who are found to
be delinquent based on an act which would be a crime under
AS 11.41. The bill also gives the court the authority to order as
a part of a sentence a person who is convicted of one of the
crimes, it requires submission of a sample to make it part of the
sentencing order."
MS. CARPENETI explained, "The bill also provides that if a person
is given probation after conviction of one of these offenses, a
condition of probation has to be that he or she submit to testing
and also as a condition of parole." So, if this legislation
passes, the court is required to order submission to testing as a
condition of the sentence, condition of probation, the parole board
has to order it as a condition of parole and it's a crime if the
person doesn't submit to the testing.
MS. CARPENETI said Sections 8 and 9 of HB 122 are clarification
language for Title 16. She explained there has been litigation
recently about whether or not the parole board can revoke parole of
a person who has not gone to a court-ordered rehabilitation program
before the person is actually paroled. The argument has been made
that a person isn't a parolee until released. This language makes
it clear that a parole board can, before a person is released,
revoke good time, parole or mandatory parole for that reason.
Section 9 is a technical amendment for AS 33.16.220.
MS. CARPENETI explained that Section 10 limits the time that a
person can file a notice of appeal in a criminal case or appeal of
a sentence to 60 days after the last extension of time. She noted
the department has an amendment to make it clear this doesn't deal
with extensions of time requested by the person and granted by a
court, but rather validation of an act after there has been no
request for an extension of time.
Number 2319
REPRESENTATIVE CROFT said Section 10 caused him some concern
because it seemed like it was a special rule for "these jailhouse
suits".
MS. CARPENETI responded that it applies to an appeal of a
conviction or sentence; it's not like a "jailhouse" piece of
litigation where a prisoner is filing a civil lawsuit against the
state alleging that his rights have been violated. It applies to
convictions and sentences and the purpose is to have some finality
in terms of sentences and convictions. She noted that as part of
the legislation that was passed in 1995, the legislature limited
Appellate Rule 521 to do this very thing.
REPRESENTATIVE CROFT asked if that was the subject of the Court of
Appeals case?
MS. CARPENETI said yes, it was the Ozenna Case. She added the
state argued in Ozenna that the court should apply the 60-day limit
to Appellate Rule 502, but it didn't. The court said if the
legislature had ....
TAPE 98-61, SIDE A
Number 0001
REPRESENTATIVE ROKEBERG made a motion to adopt CSHB 122(JUD),
Version 0-GH0055\B, Luckhaupt, dated 3/10/98. There being no
objection, that version was before the committee.
REPRESENTATIVE CROFT asked why Appellate Rule 521 didn't apply in
the Ozenna Case?
Number 0072
MS. CARPENETI said Appellate Rule 521 amends the rule allowing an
extension of time in the interest of justice and Appellate Rule 502
provides for an extension of time for good cause shown. She added
that Appellate Rule 521 was limited to 60 days after the deadline
and the department is requesting that Rule 502 be amended so the
two rules agree. She said, "It's the same rationale - at a certain
point, you have to depend on the finality of judgments and
sentences and if you can't file a notice of appeal within 60 days
after the last deadline has passed, maybe you ought to think about
doing something else."
REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti to repeat the two
standards of Appellate Rule 502 and 521.
MS. CARPENETI replied that 521 basically is in the interest of
justice and 502 is for a good cause shown.
REPRESENTATIVE BERKOWITZ asked what the distinction was between the
two standards.
MS. CARPENETI replied, "Well, for good cause shown is usually a
lawyer saying, 'Well, I couldn't file this because I didn't know
about it; I didn't hear; I didn't get notice of appeal or it got
lost in my desk' or something like that. There was a good reason
why it couldn't be filed. If there is no good reason, then you
look to 502 and you say, "well, I may have goofed up as a lawyer,
but don't do this to my client because he deserves an appeal' and
I think that would be in the interest of justice. I think that's
how those two are interpreted."
REPRESENTATIVE BERKOWITZ asked if that discrepancy led the court to
accept a late filed notice of appeal - because they relied on 502
instead of 521?
MS. CARPENETI confirmed that.
REPRESENTATIVE BERKOWITZ asked if that happened often?
MS. CARPENETI replied yes.
REPRESENTATIVE BERKOWITZ questioned the reason for the Department
of Law to ratcheted 502 down to the 521 standard instead of the
other way around. In other words, why not default to good cause
instead of defaulting to interest of justice?
MS. CARPENETI replied the department doesn't want to default at
all, but wants the rule to say a person has 60 days after the
deadline. She added, "The problem if you have a default is you
allow -- if you don't make them consistent with each other is that
a court will say, 'well, we don't find interest of justice -- I
mean we can't do it under 521, but there is good cause under 502'
and one of the purposes of the legislation in 1995 and now is to
say there are many good reasons why we should stop allowing appeals
after deadlines."
REPRESENTATIVE BERKOWITZ asked if he was correct that if the court
had found there wasn't good cause in Ozenna, the late filed notice
would not be been accepted.
MS. CARPENETI believed that was correct.
REPRESENTATIVE BERKOWITZ added, "So, there had to be this predicate
showing of good cause before the court would even entertain a late
filed motion. And really what we're doing is trying to determine
whether the standard for accepting late motions is going to be good
cause or interest of justice."
MS. CARPENETI remarked the department's position is that if a
person hasn't asked for an extension of time to file within 60 days
after the last deadline, there really isn't any good justification
for showing good cause. She added there are other ways to go about
it. For example, if it can't be appealed that way, a motion for
post-conviction relief can be brought.
REPRESENTATIVE BERKOWITZ said it seems to him the 60-day period is
fixed and that's going to be regardless of good cause. He added,
"Jumping over the good cause hurdle is still a hurdle that an
applicant has to get by and I'm wondering why even if we're
reconciling interest of justice and good cause, there's the 60-day
requirement in there."
MS. CARPENETI replied that 60 days seemed a reasonable amount of
time. She noted the proposed amendment makes it clear that it's
validation of an act after the fact. The department doesn't intend
this particular section to limit in any way the times that a lawyer
or a litigant can come before the judge to request extra time to
file an appeal. She reiterated that 60 days seemed like a
reasonable amount of time in the balancing between finality of
judgments and allowing people to have their day to appeal their
conviction or sentence.
Number 0569
REPRESENTATIVE CROFT said it seemed to him the 60-day limit should
have been put in Appellate Rule 502; that being the good cause
exception, but it makes him wonder why it was put in Rule 521. In
other words, now it's being added so it's in both 502 and 521.
Perhaps a rational argument could be made that it shouldn't have
been put in 521, but rather in 502. He added, "We should say
there's just no good cause after 60 days, but there still may be an
interest of justice overwhelming exception. So, it makes a lot of
sense to me to tie the low standard to a 60-day limit. I guess I
then start to question why the extreme one - 'the I have no good
excuse your Honor, - no good reason why I lost it in my file
cabinet but the interest of justice' -- I mean, this is something
extraordinary, clear, exculpatory -- why do we put then a 60-day
limit on that one?"
MS. CARPENETI said in the circumstances Representative Croft is
describing - a person has newly discovered evidence that was hidden
or lost in a file cabinet - there are other ways a litigant can
bring that to the court's attention through post-conviction relief
in which a person can do within two years after the conviction.
She explained the post-conviction relief provision specifically
allows a person to bring a petition for a relief based on newly-discovered evid
year from the Appellate decision.
REPRESENTATIVE PORTER remarked the last time this bill was before
the legislature there had been debate about eliminating the 60-day
extension in the first place and the legislature sort of erred on
the side of safety to be consistent with the court rule and perhaps
a constitutional issue; however, a deadline is a deadline.
Number 0812
REPRESENTATIVE PORTER made a motion to adopt Amendment 1 which
reads:
Page 5, lines 22-26:
Following "court," delete all material and insert:
"In a matter requesting review of or appealing a criminal
conviction or sentence, this rule does not authorize an
appellate court, or a superior court acting as an intermediate
appellate court, to validate the filing of a notice of appeal,
petition for review, or petition for hearing more than 60 days
after the expiration of the time specified in the rule or
statute, or in the last extension of time previously granted."
CHAIRMAN GREEN asked if there was any objection.
REPRESENTATIVE CROFT objected for discussion purposes.
Number 0833
REPRESENTATIVE BERKOWITZ offered a friendly amendment to
Amendment 1 on line 2, following "sentence," insert language akin
to "and absent any manifest injustice" or "absent the interest of
justice".
REPRESENTATIVE CROFT said, "It seems like if the court makes that
finding, there was an interest of justice or there was a manifest
injustice, then they go to 521 and 521 still says 60 days." He
commented that unless the 60-day requirement is deleted in 521,
this ends up being sort of a circular track.
CHAIRMAN GREEN stated there was a friendly amendment to Amendment 1
on the table.
REPRESENTATIVE BERKOWITZ said if there's a necessity for it, he
would recommend that language to 521 as well.
CHAIRMAN GREEN said that would be addressed as a separate issue.
The objection was maintained and he requested a roll call vote on
the amendment to Amendment 1 which would insert, "absent the
interest of justice" on line 2, following "sentence,".
Number 1004
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti to address the
amendment to Amendment 1.
MS. CARPENETI commented her position is the reason to have this
legislation is to provide some finality in terms of judgments and
convictions and allowing a person to litigate this will allow a
person to bring a motion or file an appeal many months or many
years late which is what the department was trying to avoid. She
added if 60 days after the last deadline isn't long enough, a
person can bring a petition for post-conviction relief, but there
has to be some finality in judgments. It's not only good for the
system, but in a lot of ways good for defendants who need to start
working on their rehabilitation rather than trying to find new ways
to bring questions to the court that have already been decided or
should already have been filed.
REPRESENTATIVE BERKOWITZ said on that point, a defendant has to get
in the door first and if the door is closed either because the
interests of justice aren't served by allowing an extension or
because the 60 days have expired, the door is closed - it doesn't
matter. There's a first step the defendant has to take which is
filing for a motion to accept late notice or whatever the defendant
is filing for and whether it's done under the guise of the interest
of justice or because of 60 days, there's still going to have to be
a determination by the court at that point. But that's where the
door is either opened or closed.
Number 1105
REPRESENTATIVE CROFT, speaking against the amendment to Amendment
1, said, "The amendment as we have it says 'this rule' so it's just
talking about 502. So without the amendment to amendment - without
the language reading 'and absent any manifest injustice' or words
to that effect, you could still say under this rule 60 days, you're
gone. That still leaves open the idea that whether we should amend
521 to take out the 60 day on that. But I don't think the
amendment to the amendment adds anything to the rules."
REPRESENTATIVE ROKEBERG confirmed there would be an avenue for a
person to pursue if new evidence was discovered after the 60 day
limit for appeal.
MS. CARPENETI said the procedure is called post-conviction relief
and a person has two years from the date of conviction in which to
bring matter.
REPRESENTATIVE ROKEBERG inquired what happened if new evidence was
discovered after five years, such as someone else confessing to the
crime.
MS. CARPENETI said most likely the person would be out of jail
anyway, but there are procedures to deal with that.
REPRESENTATIVE CROFT commented, "And I'd just like to very briefly
put a conflict on record. I've never practiced any criminal law,
but might some time, so for this whole issue - this whole bill and
this amendment."
CHAIRMAN GREEN asked for a roll call vote on the amendment to
Amendment 1. Representative Berkowitz voted for the amendment to
Amendment 1. Representatives Bunde, Croft, Porter, Rokeberg and
Green voted against it. Therefore, the amendment to Amendment 1
failed by a vote of 1-5.
CHAIRMAN GREEN asked if the objection to Amendment 1 was
maintained? Representative Croft removed his objection to
Amendment 1. There being no further objection, Amendment 1 was
adopted.
Number 1270
MS. CARPENETI, continuing the sectional analysis, said Section 11
is part of the DNA profile evidence provision that requires the
court to include on the judgment that the person is convicted of an
offense that requires submission of a DNA sample. Section 12
addresses Criminal Rule 35(b) motions which is a motion for
leniency filed by a defendant after the imposition of sentence.
She said historically, it does not appeal a sentence; it just asks
the court to reconsider the sentence within a certain period of
time after the sentence is imposed. In the 1970s, such a motion
was required to be filed within 60 days, then it was amended to
allow a convicted person to file such a motion within 120 days and
HB 201 passed in 1995 allowed the defendant 180 days to file a
motion to reduce the sentence at the court's discretion. At this
point, the department is asking that a provision be added to Rule
35 that a time limit of 180 days can't be relaxed more than 10
days. She noted that Rule 53 of the Criminal Rules allows a court
to relax its rules in the interest of justice and the department's
position is that 180 days is really long enough to reduce a
sentence in the interest of justice and that 10 days is a
sufficient relaxation period.
REPRESENTATIVE PORTER asked if Ms. Carpeneti knew what the
rationale was for expanding and expanding that time period by court
rule?
MS. CARPENETI thought the idea was to give the court more time to
look back and evaluate whether the application for leniency was
well-founded. It would allow the defendant more time to
demonstrate their progress.
CHAIRMAN GREEN asked if it had been done legislatively each time it
was expanded.
MS. CARPENETI said it's a court rule, but HB 201 made it 180 days
from the original conviction rather than allowing a 35(b) motion
after an appeal was decided. It also provided that a judge cannot
reduce it below the mandatory minimum, presumptive term or various
other legislatively determined sentences.
REPRESENTATIVE CROFT asked if the time period changes from 60 days
to 120 days to 180 days in Court Rule 35(b) were done by court rule
change or legislative action.
MS. CARPENETI said she didn't recall the change from 60 days to 120
days, but the change from 120 to 180 days was done by legislative
action on the Court Rule.
Number 1542
REPRESENTATIVE CROFT inquired if the court system could change the
180 days or the 10 day relaxation period.
MS. CARPENETI replied yes, but generally the court system doesn't
change court rules that have been legislatively changed.
REPRESENTATIVE CROFT asked what authority the court system would
have to relax the time period.
MS. CARPENETI replied Criminal Rule 53.
Number 1615
REPRESENTATIVE CROFT asked, "Is this the only place where we're
putting limits on 53's general (indisc.) clause?"
MS. CARPENETI believed there were other places in the Criminal
Rules and there definitely are in the Appellate Rules that put
limits on, but she needed to get back to Representative Croft for
Rule 53.
REPRESENTATIVE CROFT asked Ms. Carpeneti for clarification on the
case where the court extended the time beyond 180 days.
MS. CARPENETI replied, "The courts have used 35(b) to -- in fact,
in Fairbanks recently there have been several cases that we've
appealed - actually we've won on - but judges at the end after the
appeal is decided -- the courts have gone back and looked at it and
reduced the sentence under this rule. There were several recently
out of Fairbanks that we appealed actually and we won on, but it's
kind of a waste of time to do that."
Number 1674
CHAIRMAN GREEN asked if there were other questions of the witness.
Hearing none, he asked the wish of the committee.
Number 1687
REPRESENTATIVE ROKEBERG made a motion to move CSHB 122(JUD), as
amended, with individual recommendations and attached zero fiscal
notes.
Number 1699
REPRESENTATIVE BERKOWITZ objected for the purpose of discussion.
He said he prefers to hear from both sides on court rule changes.
He thought it unfortunate the committee didn't have an opportunity
to hear from the defense bar on this issue and he is hopeful that
when there are criminal issues in the future, the committee would
get the opportunity to weigh and balance fairly.
CHAIRMAN GREEN said the meeting was properly noticed.
REPRESENTATIVE BERKOWITZ withdrew his objection.
REPRESENTATIVE PORTER recalled the Judiciary Committee had gone
through this kind of legislation a number of times in years past
and had always drawn defense bar testimony.
CHAIRMAN GREEN asked if there was further objection to the motion?
Hearing none, CSHB 122(JUD) as amended moved from the House
Judiciary Standing Committee.
ADJOURNMENT
Number 1779
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at
3:17 p.m.
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