Legislature(1999 - 2000)
04/21/1999 01:10 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 21, 1999
1:10 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 176
"An Act relating to attorney fees and costs and the granting of
public interest litigant status in proceedings related to
administrative actions and inactions; and amending Rules 79 and 82,
Alaska Rules of Civil Procedure, and Rule 508, Alaska Rules of
Appellate Procedure."
- MOVED HB 176 OUT OF COMMITTEE
HOUSE BILL NO. 155
"An Act relating to municipal assembly forms of representation and
apportionment."
- MOVED HB 155 OUT OF COMMITTEE
HOUSE BILL NO. 135
"An Act relating to use of eavesdropping and recording devices by
peace officers."
- HEARD AND HELD
HOUSE BILL NO. 158
"An Act relating to the annual report of the director of the
division of insurance and to notice of cancellation of personal
insurance."
- MOVED CSHB 158(L&C) OUT OF COMMITTEE
* HOUSE BILL NO. 28
"An Act imposing a surcharge on fines imposed for misdemeanors,
infractions, and violations and authorizing disposition of
estimated receipts from that surcharge; and creating the juvenile
justice grant fund in order to provide financial assistance for the
operation of youth courts."
- MOVED CSHB 28(JUD) OUT OF COMMITTEE
* HOUSE JOINT RESOLUTION NO. 31
Proposing an amendment to the Constitution of the State of Alaska
requiring that the Governor be elected by a majority vote if a
preferential voting system is provided by law.
- SCHEDULED BUT NOT HEARD
SENATE COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 11(JUD)
"An Act relating to good time credits for prisoners serving
sentences of imprisonment for certain murders."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 176
SHORT TITLE: PUBLIC INTEREST LITIGANTS
SPONSOR(S): REPRESENTATIVES(S) GREEN, Rokeberg, James
Jrn-Date Jrn-Page Action
3/31/99 628 (H) READ THE FIRST TIME - REFERRAL(S)
3/31/99 628 (H) JUD, FIN
4/14/99 (H) JUD AT 1:00 PM CAPITOL 120
4/14/99 (H) SCHEDULED BUT NOT HEARD
4/15/99 (H) JUD AT 1:00 PM CAPITOL 120
4/15/99 (H) HEARD AND HELD
4/15/99 (H) MINUTE(JUD)
4/16/99 852 (H) COSPONSOR(S): ROKEBERG
4/21/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 155
SHORT TITLE: MUNICIPAL ASSEMBLY APPORTIONMENT
SPONSOR(S): REPRESENTATIVES(S) SMALLEY, Davis, Phillips
Jrn-Date Jrn-Page Action
3/24/99 555 (H) READ THE FIRST TIME - REFERRAL(S)
3/24/99 555 (H) CRA, JUD
3/29/99 606 (H) COSPONSOR(S): DAVIS
4/07/99 679 (H) COSPONSOR(S): PHILLIPS
4/08/99 (H) CRA AT 8:00 AM CAPITOL 124
4/08/99 (H) MOVED OUT OF COMMITTEE
4/08/99 (H) MINUTE(CRA)
4/08/99 686 (H) CRA RPT 6DP
4/08/99 686 (H) DP: JOULE, KOOKESH, DYSON, MURKOWSKI,
4/08/99 686 (H) HARRIS, HALCRO
4/08/99 686 (H) ZERO FISCAL NOTE (DCRA)
4/21/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 135
SHORT TITLE: POLICE USE OF EAVESDROPPING DEVICES
SPONSOR(S): REPRESENTATIVES(S) KOTT
Jrn-Date Jrn-Page Action
3/12/99 438 (H) READ THE FIRST TIME - REFERRAL(S)
3/12/99 438 (H) JUDICIARY
4/09/99 (H) JUD AT 1:00 PM CAPITOL 120
4/09/99 (H) SCHEDULED BUT NOT HEARD
4/21/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 158
SHORT TITLE: NOTICE OF INS. CANCELLATION TO ELDERLY
SPONSOR(S): REPRESENTATIVES(S) ROKEBERG
Jrn-Date Jrn-Page Action
3/24/99 556 (H) READ THE FIRST TIME - REFERRAL(S)
3/24/99 556 (H) L&C, JUD
4/07/99 (H) L&C AT 3:15 PM CAPITOL 17
4/07/99 (H) HEARD AND HELD
4/07/99 (H) MINUTE(L&C)
4/09/99 (H) L&C AT 3:15 PM CAPITOL 17
4/09/99 (H) HEARD AND HELD
4/09/99 (H) MINUTE(L&C)
4/12/99 (H) L&C AT 3:15 PM CAPITOL 17
4/12/99 (H) SCHEDULED BUT NOT HEARD
4/14/99 (H) L&C AT 3:15 PM CAPITOL 17
4/14/99 (H) MOVED CSHB 158(L&C) OUT OF COMMITTEE
4/14/99 (H) MINUTE(L&C)
4/16/99 841 (H) L&C RPT CS(L&C)1DP 6NR
4/16/99 841 (H) DP: ROKEBERG; NR: MURKOWSKI, HARRIS,
4/16/99 842 (H) CISSNA, BRICE, SANDERS, HALCRO
4/16/99 842 (H) ZERO FISCAL NOTE (DCED)
4/19/99 (H) JUD AT 1:00 PM CAPITOL 120
4/19/99 (H) SCHEDULED BUT NOT HEARD
4/21/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 28
SHORT TITLE: SURCHARGE ON FINES; YOUTH COURTS
SPONSOR(S): REPRESENTATIVES(S) CROFT, Green
Jrn-Date Jrn-Page Action
1/19/99 25 (H) PREFILE RELEASED 1/8/99
1/19/99 25 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 25 (H) HES, JUDICIARY, FINANCE
2/01/99 121 (H) HES REFERRAL WAIVED
4/21/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE HAROLD SMALLEY
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-3779
POSITION STATEMENT: Sponsor of HB 155.
LINDA MURPHY, Borough Clerk
Kenai Peninsula Borough
144 North Binkley Street
Soldotna, Alaska 99669
Telephone: (907) 262-4441
POSITION STATEMENT: Urged passage of HB 155.
PAT HARMAN, Legislative Administrative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Provided sponsor statement on HB 135.
CORY WINCHELL, Administrative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Discussed the legal issues related to HB 135.
DUANE UDLAND, Chief
Anchorage Police Department
4501 South Bragaw Street
Anchorage, Alaska 99507
Telephone: (907) 786-8590
POSITION STATEMENT: Testified on HB 135.
DAVID HUDSON, First Sergeant
Division of Alaska State Trooper
Department of Public Safety
5700 East Tudor Road
Anchorage, Alaska 99507-1225
Telephone: (Not provided)
POSITION STATEMENT: Testified on HB 135.
BLAIR McCUNE, Deputy Director
Central Office
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on HB 135 and waived his time to
other testifiers on HB 28.
GERALD LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Answered questions of the committee members.
ANNE D. CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on HB 135.
JOHN GEORGE, Lobbyist
for the National Association of Independent Insurers
3328 Fritz Cove Road
Juneau, Alaska 99801
Telephone: (907) 789-0172
POSITION STATEMENT: Answered questions regarding HB 158.
KATE AMPHAY, Intern
for Representative Eric Croft
Alaska State Legislature
Capitol Building, Room 400
Juneau, Alaska 99801
Telephone: (907) 465-4998
POSITION STATEMENT: Presented sponsor statement on HB 28.
LINDA JOHNSON, Legal Advisor
Anchorage Youth Court
P.O. Box 102735
Anchorage, Alaska 99510
Telephone: (907) 274-5986
POSITION STATEMENT: Testified in support of HB 28.
WENDY LEACH, Executive Director
North Star Youth Court
800 Cushman Street
Fairbanks, Alaska 99701
Telephone: (907) 457-6792
POSITION STATEMENT: Testified in support of HB 28.
LISA MAKAR, Program Coordinator
Mat-Su Youth Court
1801 Parks Highway, Suite C-06
Palmer, Alaska 99645
Telephone: (907) 373-5193
POSITION STATEMENT: Testified in support of HB 28.
MATT NEIL
441 West 5th Avenue, Suite 701
Anchorage, Alaska 99501
Telephone: (907) 279-9609
POSITION STATEMENT: Testified in support of HB 28.
BILL EDWARDS
12721 Schooner Drive
Anchorage, Alaska 99515
Telephone: (907) 345-9477
POSITION STATEMENT: Testified in support of HB 28.
LADDIE SHAW, Executive Director
Alaska Police Standards Council
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4378
POSITION STATEMENT: Testified on HB 28 in regards to the surcharge.
STUART BANNAN, Vice-President
Anchorage Youth Court Bar Association
2130 Atwood Drive
Anchorage, Alaska 99517
Telephone: (Not provided)
POSITION STATEMENT: Testified in support of HB 28.
RANDALL PATTERSON, Vice President
Anchorage Youth Court Board of Directors
1015 West 7th Avenue
Anchorage, Alaska 99501
Telephone: (907) 272-6434
POSITION STATEMENT: Testified in support of HB 28.
ROBERT BUTTCANE, Juvenile Probation Officer
Youth Corrections
Division of Family and Youth Services
Department of Health and Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-2212
POSITION STATEMENT: Testified in support of HB 28.
ACTION NARRATIVE
TAPE 99-36, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:10 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg and James.
Representatives Murkowski, Croft and Kerttula arrived at 1:12 p.m.,
1:15 p.m. and 1:29 p.m., respectively.
HB 176 - PUBLIC INTEREST LITIGANTS
CHAIRMAN KOTT announced the first order of business is HB 176, "An
Act relating to attorney fees and costs and the granting of public
interest litigant status in proceedings related to administrative
actions and inactions; and amending Rules 79 and 82, Alaska Rules
of Civil Procedure, and Rule 508, Alaska Rules of Appellate
Procedure."
Number 0089
REPRESENTATIVE ROKEBERG made a motion to move HB 176 [1-LS0656\D]
from the committee with individual recommendations and the attached
fiscal note(s). There being no objection, HB 176 was so moved from
the House Judiciary Standing Committee.
HB 155 - MUNICIPAL ASSEMBLY APPORTIONMENT
CHAIRMAN KOTT announced the next order of business is HB 155, "An
Act relating to municipal assembly forms of representation and
apportionment."
Number 0190
REPRESENTATIVE HAROLD SMALLEY, Alaska State Legislature, came
before the committee as sponsor of the bill. He noted that Linda
Murphy may be on-line as clerk of the Kenai Peninsula School
District [Kenai Peninsula Borough]. He explained that she
contacted him and suggested legislation that would allow
flexibility for boroughs and municipalities across the state
regarding elections in times of reapportionment and boundary lines.
He noted that there are conflicts and confusion, especially on the
Kenai Peninsula. In some precincts there are four different
assembly positions. This bill would allow the flexibility to
follow existing policy or to wait until such time the state has
drawn the boundary lines. He noted to the committee members that
there is a sectional analysis in the bill packet. The big change
is in Section 3, which allows for the flexibility. The new
language reads, "The assembly may provide, by ordinance, for a
change in an existing apportionment of the assembly whenever a
final state redistricting plan is changed as a result of federal or
court action." Hopefully, by allowing boroughs to wait there would
be fewer challenges to ballots, and a lot less confusion in regards
to whether or not a voter is in the right precinct.
Number 0393
CHAIRMAN KOTT noted that the bill had a previous committee of
referral - House Community and Regional Affairs - with six "due
passes."
Number 0408
REPRESENTATIVE ROKEBERG noted that there are a number of people on
the Kenai Peninsula lined up to testify. He asked Representative
Smalley whether there is a particular problem there regarding this
issue.
Number 0418
REPRESENTATIVE SMALLEY replied Ms. Murphy can probably answer that
question better. There have been some difficulties in the past,
and the potential is even greater because there are at least four
assembly seats in the area with different boundary lines.
Number 0448
REPRESENTATIVE JAMES noted that there is area-wide representation
in the Fairbanks North Star Borough. She asked Representative
Smalley what is the positive effect of having district
representation for the assembly seats.
REPRESENTATIVE SMALLEY replied Ms. Murphy can probably answer that
question better. It's a direction that the borough chose some time
ago. It is done with the school board and assembly seats. It has
to do with community members feeling that they are better
represented.
REPRESENTATIVE SMALLEY noted that the council seats for the city of
Kenai are basically open, but the assembly and school board seats
are apportioned.
Number 0518
CHAIRMAN KOTT opened the meeting to public testimony.
Number 0533
LINDA MURPHY, Borough Clerk, Kenai Peninsula Borough, testified via
teleconference from Utah. She informed the committee that
Representative Smalley drafted HB 155 per her request. Under
current state law, boroughs with district assembly seats must
present the voters with a reapportionment plan prior to the time
the state reveals its plan. When the state reapportions, the
state's voter precinct lines are shifted and changed. Ms. Murphy
explained that it is easier for areas with district seats to have
the area's assembly lines follow state precinct lines because then
the voter only has one ballot. Currently, there is no way of
knowing where the state's voter precinct lines will fall. As
mentioned, one precinct in the Kenai Peninsula Borough contains
portions of four different assembly seats. Such a situation is
confusing for the volunteer election workers, for qualifying
someone to run for a district seat, and for absentee ballot
requests in those precincts. This legislation would provide the
borough with the flexibility to present its redistricting plan to
the voters after the state has done reapportionment. She urged the
committee to pass HB 155.
REPRESENTATIVE ROKEBERG pointed out that Section 4, of existing
statute, says that the ordinance will be submitted to the voters.
He asked whether the voters have to ratify the reapportionment plan
under the existing statute.
MS. MURPHY replied yes.
REPRESENTATIVE ROKEBERG asked whether there is anything in statute
that mandates that there "shall" be a reapportionment.
MS. MURPHY clarified that Representative Rokeberg was referring to
Section 3, which does not deal with the initial reapportionment
after the decennial census. Once the state adopts a plan, the
state's plan must be cleared by the Department of Justice in
Washington, D.C. because Alaska falls under the Federal Voting
Rights Act. Therefore, the state's adopted plan could be changed
by the federal government or challenged in court by anyone in the
state. If an area adopts a plan based on the state's plan, which
is subsequently overturned or changed by the federal government or
the court, that area would be able to revise the plan and present
the voters with a new plan based on the new lines for the state.
The current state law only allows boroughs to present a new plan to
the voters if the borough determines that apportionment does not
meet state standards.
CHAIRMAN KOTT closed the meeting to public testimony.
Number 0873
REPRESENTATIVE GREEN moved to report HB 155 out of committee with
individual recommendations and the accompanying zero fiscal note.
There being no objection, HB 155 was so moved from the House
Judiciary Standing Committee.
HB 135 - POLICE USE OF EAVESDROPPING DEVICES
CHAIRMAN KOTT announced the next order of business is HB 135, "An
Act relating to use of eavesdropping and recording devices by peace
officers."
Number 1045
PAT HARMAN, Legislative Administrative Assistant to Representative
Pete Kott, Alaska State Legislature, came before the committee to
present the sponsor statement. He said social changes have
occurred since the State v. Glass (1978) decision over two decades
ago. Illegal drugs are now a major social issue. Violence and
potential violence is a major concern to law enforcement because
drug dealers are usually armed. This bill is for peace officer
safety. It would allow an officer to wear a wire without a warrant
for purposes of safety. It would allow backup officers to monitor
a conversation and come to the rescue if an officer's safety is at
risk. Presently, they use hand signals or other visual signals to
call for backup. However, many conversations are out of sight of
the backup and requires this bill to improve an officer's safety.
He noted that the following restrictions are included:
- The monitoring can only occur during the investigation
or arrest of a person for a crime and if that officer is
a party to that conversation;
- It must be for the safety of the officer;
- The conversation cannot be recorded; and
- The backup officer(s) may not testify in a criminal
proceeding involving the content of the conversation or
that it actually occurred.
MR. HARMAN further noted that there are constitutional issues that
need to be discussed which can only be resolved by the courts. The
issue for this committee is whether or not officer safety is
important enough to test its constitutionality, if it were to
become law. The American Civil Liberties Union has submitted an
amendment that the sponsor agrees with. He explained that page 2,
line 23, would be changed to read, "communications and consented to
the interception," which means that an officer would have to
consent to wearing a wire. In other words, a peace officer could
not be required to wear a wire.
Number 1229
CORY WINCHELL, Administrative Assistant to Representative Pete
Kott, Alaska State Legislature, came before the committee to
discuss the legal and constitutional issues of the bill. He noted
that the seminal case on point is State v. Glass. In Glass, the
police used a wiretap and sought to admit it as evidence. The bill
does not seek to do that, however. It is solely for the safety of
peace officers. Mr. Winchell further noted that in Glass the court
grappled with the issue of privacy. It talked a lot about the
supreme court decisions, particularly Justice Harlan's decision on
an expectation of privacy and a reasonable belief that privacy is
there. The court adopted that rationale. It also said that the
state has the right to extend rights of privacy further than what
the supreme court did. He referred to page 9, of the Glass
decision, and read the following:
"Legitimate interests of law enforcement authorities,
however, may generally be met in the same manner as in
other searches and seizures. In the absence of limited
exceptions, a search warrant should be obtained from an
impartial magistrate, based on probable cause to believe
that criminal activity will be discovered, before
electronic monitoring of conversations should be allowed.
It may be that, as in other search and seizure contexts,
the requirement of a warrant may be obviated under
exigent circumstances. We withhold passing on that issue
until presented with a specific case."
MR. WINCHELL noted that the bill would be the case. It would
probably wind its way up the courts. The exigent circumstance is
officer safety. In addition, the person listening to the
electronic communication cannot testify as to any of the matters.
Number 1428
REPRESENTATIVE JAMES said this all sounds well and good for officer
safety, but once a person hears something, she wonders how there
can be assurance that it is not used for other reasons.
Number 1461
MR. WINCHELL stated it is a policy call that this committee and the
legislature have to make. He informed Representative James that
this is being limited to the safety of peace officers.
Number 1489
REPRESENTATIVE JAMES asked Mr. Winchell to show her the language.
MR. WINCHELL replied the language is in Section 2(b) - "(b) A peace
officer monitoring a receiving unit under (a) of this section is
not competent to testify in a criminal proceeding involving a party
to the oral communication about the contents of the oral
communication that was intercepted or the fact that the
communication occurred." The officer who is bugged can testify,
write a report, or swear upon an affidavit. After all, it is a
face-to-face conversation.
Number 1552
REPRESENTATIVE JAMES said that isn't the scenario she is worried
about. She is worried about somebody listening to a recording when
an officer is shot and killed. That person can't tell anybody, but
he will.
MR. WINCHELL said there is a theory called the, "fruit of the
poisonous tree." If a person hears incriminating words that lead
to evidence further on, that evidence can be excluded based on that
theory, and a good defense attorney would argue and protect a
person under that doctrine.
Number 1638
REPRESENTATIVE JAMES said therein lies the problem in the current
legal system - utilizing the truth, but it can't be told. That is
one of the reasons the public has so much discomfort with the
decisions that come out of the courts. She sees some real problems
by opening this door and at the same time keeping it shut to the
room in certain circumstances that are not necessarily good for
society.
Number 1671
MR. WINCHELL stated other states permit this, but Alaska has a
right of privacy that is a little bit higher than other states in
the union, which the supreme court recognized as important in
Glass. At this point, our hands are tied, unless there is a
constitutional amendment sweeping away that right.
Number 1701
REPRESENTATIVE CROFT confirmed that whether the Glass decision says
it can't be done or whether it can't be used as evidence.
MR. WINCHELL read the following:
"One argument advanced is that bugging aids in
safeguarding informants. This may be questionable since
the presence of electronic devices on the informant may
add to his risk, because sophisticated 'anti-bugging'
technology may disclose the presence of the device or it
may otherwise be discovered. In any event, New Hampshire
has met that contention by holding that a statute which
permits participant monitoring does not permit the
introduction at trial of a tape recording of a
conversation transmitted by such a device. The court
held that the purpose of the statute's exception was to
allow police officers to protect the undercover officer
and that monitoring for purposes of rescue was not
equivalent to monitoring for purposes of introduction of
the conversation at trial." [n34 of Glass]
MR. WINCHELL noted that is exactly what the bill is trying to do.
The bill is asking the court to recognize that there are exigent
circumstances for the safety of peace officers.
Number 1782
REPRESENTATIVE CROFT stated the case from New Hampshire has a rule
like Glass, but the court said that their statute is okay because
it doesn't require using it.
MR. WINCHELL said their statute permits participants to monitor [a
conversation] for safety reasons as long as they don't introduce
the tape in a trial.
Number 1806
REPRESENTATIVE CROFT clarified that whether the State v. Ayers case
[State v. Ayers, 118 N.H. 90, 383 A.2d 87, 88 (N.H. 1978)] was a
question of statutory interpretation rather than a constitutional
limitation.
MR. WINCHELL replied it is the same kind of case that would come
down the pipe, if the bill passed out of the committee.
REPRESENTATIVE CROFT referred to the State v. Brackman case [State
v. Brackman, 582 P.2d 1216 (Mont. 1978)] and noted that at least
Montana has the same rule that Alaska does in Glass.
MR. WINCHELL replied the case held that privacy protections were of
such a large degree that it was distinguished between federal case
law and other states such as California. The bill asks, as a
matter of policy, for the legislature to empower peace officers to
protect themselves.
Number 1843
REPRESENTATIVE CROFT wondered why a statute is needed to do this.
Glass is an evidentiary limitation. He asked Mr. Winchell whether
he agrees that peace officers can wear a wire now; they just can't
use it as evidence.
Number 1864
MR. WINCHELL replied perhaps peace officers can wear a wire now,
but it might incur civil liabilities for constitutional violations.
Number 1894
REPRESENTATIVE CROFT asked Mr. Winchell why this should be exempted
from the warrant requirements. This arguably is the right thing to
do for the safety of officers, but these are planned setups. There
is plenty of time to go to a judge and get a warrant.
Number 1933
MR. WINCHELL replied it would streamline the system, perhaps to the
detriment of rights. But, if peace officers have to go to a
magistrate every time [to get a warrant] for a buy, they would
flood the magistrates. Yes, they have to do it anyway. The bill
just says that it would not be used for evidence.
Number 1962
REPRESENTATIVE CROFT said: "So, they can do it now. They just
have to get a warrant to do it."
MR. WINCHELL replied yes a Glass warrant.
REPRESENTATIVE CROFT noted that it is standard enough now to even
have a name - Glass warrant.
MR. WINCHELL noted that there is worry about the propensity of
violence. He reiterated the gist of the bill is for the safety of
peace officers.
Number 1987
CHAIRMAN KOTT stated when he introduced the bill there was
discussion from the Municipality of Anchorage that some of the
courts do not go along with it and some do, therefore,
clarification is needed on whether or not this is legal. In
addition, there are special circumstances that do not allow an
officer to go to a magistrate. For example, there are unusual
types of things that occur on the spur of the moment when there
isn't time to get a Glass warrant.
Number 2038
MR. WINCHELL noted that the court recognized in Glass the existence
of AS 11.60.290. He's not sure whether that statute is still on
the books, however. It is unlawful to eavesdrop, and an officer
shouldn't be subjected to those kinds of problems.
Number 2077
REPRESENTATIVE GREEN referred to a rendering by Judge Sigurd Murphy
- a judge that he holds in high regard - and stated a person can
never be sure about how a judge may come down on something. He
can, therefore, see why there is this kind of "belt-and-suspenders"
approach to protect an officer. He asked Mr. Winchell to address
Representative James' concern regarding a murdered officer.
Number 2108
MR. WINCHELL replied, if an officer is murdered and somebody is
listening on the other end, that testimony can be used if a
compelling state interest is shown. Baring that, other types of
evidence would have to be used to prove that a murder occurred. He
reiterated the bill is trying to comply with the constitutional
right to privacy and the Glass decision.
Number 2160
CHAIRMAN KOTT noted that's how people commit homicides and "get off
the hook."
Number 2165
REPRESENTATIVE KERTTULA said there are many, many exceptions to
hearsay, which is one of the problems here, but the fundamental
rule of the constitution is started out with, which is freedom from
unreasonable searches.
MR. WINCHELL said it's unreasonable searches and an express right
to privacy.
REPRESENTATIVE KERTTULA referred to the language - "(8) the making
by a uniformed peace officer of an audio recording in conjunction
with the video recording of traffic and other law enforcement
patrol contact;" - and stated it seems to go off on a different
tangent.
Number 2217
MR. WINCHELL replied when he read that portion he thought of a
"COPS" show on television. He doesn't know whether routine traffic
stops are so important and dangerous that they need to be carved
out as an exception.
Number 2240
REPRESENTATIVE KERTTULA said she can see the intent of the bill,
but this went off on another tangent. She isn't real clear on
whether it might or might not cause damage to the intent of the
rest of the bill.
Number 2266
REPRESENTATIVE MURKOWSKI stated this is a crazed world anymore. An
officer can respond to a domestic violence call, for example, and
get "nailed." She asked Mr. Winchell, in recognizing the concern
of the safety of officers, how can we keep from going down a
slippery slope. In other words, what's to stop an officer from
saying anytime he puts his badge on he is in a life threatening
situation?
MR. WINCHELL replied one response is the vigilance of the
legislature and a decision not to walk down that slippery slope.
The other response is in trusting the prosecutors and peace
officers. There has to be hope and trust that the peace officers
would act accordingly, and when they don't, that the court systems
would pick it up.
CHAIRMAN KOTT opened the meeting to public testimony.
Number 2370
DUANE UDLAND, Chief, Anchorage Police Department, testified via
teleconference from Anchorage. He is also president of the Alaska
Chiefs of Police Association. He thanked the sponsor for bringing
the bill in. This is an important issue for law enforcement. He
noted that twenty-five years ago, when doing undercover work,
officers rarely came upon guns. Now, it's almost the norm. The
nature of the business has changed and it has become more violent
out there. This issue is near and dear to the working cops out on
the streets.
CHIEF UDLAND further stated, in response to Representative James'
frustration with the limitations of the statute, officers are stuck
with the boundaries where the supreme court has already ruled. In
response to Representative Croft, as far as the existing statutes
are concerned, he has looked at that for years, and the district
attorney has always recommended that the law is not clear enough
and that peace officers would be committing a misdemeanor if safety
wires were used. Therefore, universally, peace officers across the
state have not used safety wires. He does not let his officers
wear safety wires, under the current law, knowing that they may be
committing a misdemeanor. In reference to the question of getting
warrants now and just continuing to do so, sometimes there isn't
enough information to get one. Often times, officers go out and
make a drug-buy to establish probable cause then go get a Glass
warrant. And, unfortunately, an officer can't wear a safety wire
on that first buy requiring officers to go in cold without any
resources or monitoring of what's going on around them. He noted
that this is not just limited to drug-buys...
TAPE 99-36, SIDE B
Number 0001
CHIEF UDLAND continued. There are decoy officers, such as women
officers dressed as prostitutes, that cannot be monitored. If a
"John" pulls up and puts a gun to that officer's head, they would
not be able to hear any of that transaction making it very
difficult to protect that officer. In reference to Representative
Murkowski's [Kerttula's] concern regarding traffic, officers share
the same concern. He's not sure why it should be in statute. The
law is already very clear on videotaping and electronically
monitoring conversations with a uniformed officer performing his
duties when a person knows that he is dealing with a peace officer.
Personally, he would like to see that language taken out. In
regards to the slippery slope concern, he agrees with the comments
made in terms of trusting peace officers, but the reality is an
officer can wear a recorder now while performing his duties. The
peace officers are asking to wear that recorder when there's danger
and where a person doesn't know that they are officers, which
inherently involves undercover work and a lot of risk. The peace
officers are asking that the legislature take a look at this. They
fully expect this to be litigated, and hopefully, there will be a
favorable ruling. He would be happy to answer any questions.
Number 0070
REPRESENTATIVE CROFT asked Chief Udland whether officers have tried
to apply for a safety Glass warrant to wear a wire going into a buy
that is possibly dangerous with a magistrate.
CHIEF UDLAND replied he can't say that there hasn't been a peace
officer who tried that approach. He said:
"The problem is, you know, say you are a citizen and you call
us, you think that there is dope activity going on in a house
down the street. And, that's about all you know. You just
know that you have cars coming and going late at night and you
see a bunch of strange people hanging around there all the
time stopping in for brief moments. And, that's all the
information you have. Well, that probably describes a dope
house or crack house of some sort. I don't know what
information we could possibly develop based on that to tell a
magistrate that we think we've got a dangerous situation and
we need a safety warrant. There's no authorization for, in
the current law, for safety warrant. And, so it looks like
the dilemma that in order to get information we have to go up
to the house, and believe it or not a lot of the cases we make
are just on situation I outlined where an officer walks up and
knocks on the door and says, 'Hey, I heard you're selling
dope. Anybody buying dope?' And, then we go back and then we
get a warrant to do what we call a Glass warrant so we can get
a recorded buy. And, then we go back with that first--that
first contact with the crack house that we simply there's not
enough information to articulate so, even if there was an
allowance for a safety wire I don't know how we would ever
develop the information, you know, to be able to articulate
before a magistrate."
Number 0140
REPRESENTATIVE CROFT said that's an interesting distinction. It
doesn't have to rise to the level of a full probable cause. It can
be crafted however. While he can see how it would be difficult to
articulate a probable cause standard, he asked Chief Udland whether
there is some other standard that could be included to justify the
danger. There are lower standards - reasonable suspicion or
articulated facts justifying a danger.
Number 0173
CHIEF UDLAND suggested the language, "upon the belief of the police
officer." He doesn't see the need to do that, however, because of
the prostitute example mentioned earlier. Would an officer have to
have a wire warrant for every citizen that was in a car that
stopped to talk to the decoy based on fear? He doesn't know what
the standard would be and it seems somewhat impractical.
Number 0198
REPRESENTATIVE KERTTULA asked Chief Udland what situations this
would have helped with in the past. She also asked what would
change with this.
CHIEF UDLAND replied it would change any times in the past and
present where officers are being sent into situations that are
dangerous. "We" are asking officers now to go into a dangerous
situation without backup and monitoring, which goes on every day
across the state, particularly with drug investigations. More
times than not, when knocking on that hypothetical house he
mentioned earlier, some form of weapon is found and that house
later ends up being searched with a warrant. He reiterated "we"
are sending officers into those situations without any protection
knowing that they are at great risk. This bill would fix that.
This is not unusual. A lot of states and the federal government
get by just fine allowing this. The Glass decision never really
anticipated the direction that violence has taken in this country.
Number 0261
REPRESENTATIVE KERTTULA said she understands what he is saying and
she certainly respects and admires peace officers. She noted that
everything is done to protect officers, therefore, she is concerned
about the vigilance in terms of it becoming a reliance on
monitoring rather than actually watching the officer. She is
trying to think of a concrete example where this would have helped
in terms of stopping violence towards an officer. She agrees with
Representative Murkowski that an officer can face a violent
situation on a simple call.
Number 0291
CHIEF UDLAND replied a uniformed officer can wear a tape recorder
right now on a call. He is talking about undercover work where
people don't know that the person is an officer. Every day peace
officers are going behind closed doors into potentially dangerous
situations and nobody is able to monitor them for safety. If an
officer goes into an apartment and a gun is pulled to him, the
backup officers have no idea what is taking place.
Number 0341
REPRESENTATIVE ROKEBERG asked Chief Udland what misdemeanor would
an officer be breaking if that officer wore a safety wire.
CHIEF UDLAND replied that officer would be breaking a misdemeanor
in AS 42.20.300 - "Unauthorized publication or use of
communications."
Number 0367
DAVID HUDSON, First Sergeant, Division of Alaska State Trooper,
Department of Public Safety, testified via teleconference from
Anchorage. He is not here to talk about the legal issues. He is
here to talk about officer safety. In 1993 and 1994, he worked in
a combined task force with the Anchorage Police Department. During
that time frame, he worked on one of the largest heroin cases ever
held in Alaska. He noted that often times, there isn't time in a
drug case to develop appropriate probable cause - because of its
tempo - to go before a magistrate in order to get a Glass warrant.
He cited an example of buying heroin in Spenard [Anchorage] in
January. It was extremely hard to stay close to his partner. He
was not in sight or hearing range of him when he would go into a
particular house for a buy. They had decided beforehand how long
to stay in a particular place. It was an extremely tenuous
situation and often he would proceed to locate his partner. He
noted that, in these types of cases, the dynamics change very
rapidly. In addition, the bad guys recognize the procedures. They
watch "COPS" just like everybody else. They realize that it takes
time to set up an operation and to do other things. They naturally
want to avoid getting caught, so they often change locations,
directions, names and places rapidly. "We don't have time to do
all the things that you see in 'COPS' where they set up a raid team
and they get backup and they do all this other stuff." He has been
in places in Anchorage during the winter where a gun shot could
have gone off and his partner and backup would not have heard it.
They were in locales that weren't close enough to visually watch
him or touch him. He thanked Representative Kott for taking the
initiative on this issue. He would be glad to answer any
questions.
Number 0540
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, testified via teleconference
from Anchorage. The agency is concerned with the bill because it
believes that it is unconstitutional. It is a difficult legal
area. In a wiretapping situation, "A" is talking to "B" and
someone who is not a party to the conversation, "C," taps in and
listens to the conversation. In a situation that the bill targets,
"A" is talking to "B," and "B" consents to a recording and/or to
broadcasting the conversation, which is not illegal under the
federal constitution or under most state constitutions. He cited
in Vermont and Massachusetts their supreme courts have ruled that
it violates the right to privacy when done in a home. The Glass
case is older and has recently been reaffirmed in a case that
involves a slightly different fact-pattern - State v. Page.
MR. McCUNE noted it is important to understand what can be done
now. If an officer identifies him or herself as a peace officer,
that officer can tape or broadcast with or without the consent of
the person being contacted. That was made possible by a decision
in the City and Borough of Juneau v. Quinto case [684 P.2d 127
(Alaska 1984)]. In addition, if an officer has probable cause,
that officer can get a Glass warrant for participant monitoring.
The legislature has made a lot of changes to the statute for the
judiciary to issue a warrant. For example, it can be issued over
a telephone with telephonic testimony - AS 12.35.015. In addition,
he noted that the statute refers to peace officers and stated that
there are special commissioned peace officers and he's not certain
whether they would be covered. They are not regular peace
officers, but people who are brought in specifically for drug
undercover work. The basic concern is the right of privacy, of
going into a person's home without probable cause by an undercover
agent. In reference to the "fruit of the poisonous tree doctrine,"
if an officer monitors a conversation, it is questionable whether
or not that information can be used to develop further leads and
probable cause. It could taint a further warrant, even though the
information was clear. In conclusion, he echoes the concern of the
fact that there are more dangerous situations today. Other
societies have taken steps to de-arm their citizens rather than
going after constitutional rights. That's probably not a popular
thing to say these days, but there are other ways to deal with
safety concerns.
Number 1007
REPRESENTATIVE CROFT said he's not sure that he buys the "fruit of
the poisonous tree doctrine." He asked Mr. McCune how is it
materially different from an officer who heard something live
versus an officer who heard it outside.
Number 1047
MR. McCUNE replied it's a situation where "A" and "B" are talking
together and "C" overhears the conversation. "B" can certainly go
to a magistrate and furnish probable case for a warrant. But, it's
against the constitution for "C" who overheard the conversation to
go to a magistrate and furnish probable cause for a warrant.
Number 1122
REPRESENTATIVE KERTTULA said one of the problems is the issue of
whether or not a person could have gotten a warrant. There'll be
a lot of challenges to whether or not an officer wore a wire for
safety reasons.
Number 1149
REPRESENTATIVE ROKEBERG said, he thought, the question is whether
the probable cause is issued by one of the witnesses to the event.
He wondered how getting a Glass warrant after the fact would be
tainted.
Number 1187
CHAIRMAN KOTT questioned Mr. McCune as to whether there is a
distinction between the Page and Glass cases because the bill
requires an officer to wear a recording device on his person. The
circumstances were not the same in Page. A bugging device planted
in a wall would clearly be unconstitutional.
Number 1222
MR. McCUNE replied in Page a video camera was set up with the
consent of one of the participants. It is distinguishable, but the
courts looked at the people who set up the video camera as agents
and closely associated with one of the participants. The case went
to the supreme court and Chief Justice Warren W. Mathews provided
a long legal opinion on participant monitoring, which is a real
primer and good source of information for the committee to
consider.
CHAIRMAN KOTT asked Mr. Gerald Luckhaupt [Attorney, Legislative
Counsel, Legislative Legal and Research Services, Legislative
Affairs Agency] to clarify the inclusion of an officer using audio
recording in conjunction with video recording.
Number 1340
GERALD LUCKHAUPT, Attorney, Legislative Counsel, Legislative Legal
and Research Services, Legislative Affairs Agency, came before the
committee to answer questions. He noted that the language was
included based on discussion with staff. He didn't want to make it
seem that the legislature was finding a practice - that is now
legal and constitutional - illegal. Currently, uniformed officers
can secretly tape-record conversations with suspects. Even if they
aren't in uniform, if they are known to the person they are talking
to as a police officer, they can secretly tape-record and video
tape conversations. The addition of the language talks about how
undercovered officers can do this without authorizing the
activities that the supreme court and court of appeals have found
to be legal and constitutional. This line of thought came to him
from a footnote in Glass which excluded surreptitious tape
recordings by peace officers, not on a constitutional ground, but
because it was excluded from a statute like AS 42.20.300. Because
of Glass, any amendments made to the statute could be argued as
illegal, therefore, he felt it was necessary to put that language
in to authorize those activities.
Number 1534
REPRESENTATIVE CROFT asked Mr. Luckhaupt why doesn't the language
- "(6) a peace officer, or a person acting at the direction or
request of a peace officer, engaging in conduct authorized by or
under AS 12.37" - take care of that.
MR. LUCKHAUPT replied AS 12.37 is the wiretapping statute. Maybe,
it is something that he overlooked. It is a different level of law
and probable cause and a warrant is required for a wiretap.
Number 1580
REPRESENTATIVE CROFT asked Mr. Luckhaupt why does it need to be
repeated because Section 2, of the bill, puts this instance in AS
12.37.
MR. LUCKHAUPT replied, "We may not. Now that I think about it."
There may be a way around that. He noted that subparagraph (6) may
need to be amended to indicate that a warrant is not required for
these types of activities.
Number 1635
REPRESENTATIVE CROFT asked Mr. Luckhaupt why Glass warrants aren't
misdemeanors now.
MR. LUCKHAUPT replied they aren't misdemeanors now because of the
supreme court decision. He doesn't know whether that decision has
been codified, however. There were changes made in the wiretapping
law to accommodate the Glass decision, which is why it is unique to
Alaska. He noted that it is participant-monitored activities, so
they would not be illegal.
Number 1719
REPRESENTATIVE CROFT said it seems that AS 42.20.310
["Eavesdropping"] is clear. A person may not use an eavesdropping
device, and there is no exception for police conduct (indisc.) a
warrent. He questioned whether every Glass warrant has been
violating this statute for twenty years.
MR. LUCKHAUPT said he doesn't know. He would have to think about
that.
REPRESENTATIVE CROFT said it could be true, but there isn't a
district attorney in the world who would prosecute an officer that
had a warrant to wear a wire as part of his duties.
Number 1813
REPRESENTATIVE KERTTULA asked Mr. Luckhaupt to look into the
eavesdropping exemption in AS 42.20.320(a)(4) as well. It looks
like the situations being discussed might already be covered, and
maybe, it's something that hasn't been utilized.
Number 1885
MR. LUCKHAUPT referred Representative Croft to AS 42.20.300(a), in
response to his question regarding an officer who is transmitting
pursuant to a Glass warrant. The officer who has a Glass warrant
is doing the transmitting and assisting others in receiving,
therefore, he would not be subject to prosecution. The supreme
court requires an officer to get a warrant under Glass, if that
officer is undercover and not known to the person he is speaking to
as a peace officer. That does not clearly exempt the parties
listed, so he can see the concern of Representative Croft.
Number 1955
REPRESENTATIVE CROFT asked Mr. Luckhaupt why the exceptions in the
bill do not talk about covers. He referred to AS 12.37.
MR. LUCKHAUPT noted that AS 12.37 is the wiretapping statute, which
requires a different type of warrant to engage in that activity.
When the statute was written, the drafters didn't want to tie them
together.
Number 2009
REPRESENTATIVE CROFT asked Mr. Luckhaupt whether there is any
statutory section that codifies Glass warrants.
MR. LUCKHAUPT replied no.
Number 2026
REPRESENTATIVE KERTTULA asked Mr. Luckhaupt whether the exemption
in AS 42.20.320(a)(4) reaches the same result.
MR. LUCKHAUPT replied that was added about two years ago to allow
law enforcement to tap into a phone during a hostage situation. It
doesn't apply to anything at all in this bill. He cited a hostage
situation, a barricade, and imminent illegal use of an explosive as
examples. That operates as an exemption in the normal wiretapping
statute as well. It basically codifies exemptions that other
courts have found to be exigent circumstances, and have recognized
police activities to intercept those types of communications as
warranted due to the danger to the public.
Number 2170
REPRESENTATIVE KERTTULA clarified that whether an officer can
already monitor in those types of situations.
MR. LUCKHAUPT replied the exemptions apply by meeting the
subparagraphs - AS 42.20.320(a)(b) and (c).
REPRESENTATIVE KERTTULA noted that she is reading the section a
little bit more broadly than Mr. Luckhaupt, particularly AS
42.20.320 (a)(4).
MR. LUCKHAUPT stated he reads AS 42.20.320 (a)(4) as the
communications that are not being made by a law enforcement agency.
He has not seen that exemption applied towards allowing an officer
to use a wiretap, which is why he added the other statute in order
to allow wiretapping in these emergency situations.
Number 2375
REPRESENTATIVE KERTTULA questioned Mr. Luckhaupt as to whether
there has been any court case since this exemption was put in
place.
MR. LUCKHAUPT replied not in Alaska.
Number 2420
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, came before
the committee to testify. The Glass decision specifically states
that the monitoring or recording of private conversations without
a warrant violates the constitution - Article 1, Section 14; and
Article 1, Section 22. The decision was more than evidentiary; it
was a decision based on a person's right to privacy, which has a
higher protection under the state constitution than the federal
constitution and many other state constitutions...
TAPE 99-37, SIDE A
Number 0001
MS. CARPENETI continued. The Ayers decision found that monitoring
for the safety of police officers is okay, but the use of the
evidence is not. The department would suggest, as one way to help
litigate this in court, adopting specific legislative findings that
repeat what Chief Udland has said regarding the times since the
Glass decision was handed down. Life has changed since then in
this state and the country. Certain investigations are a lot more
dangerous.
MS. CARPENETI further stated that one thing to consider is an
individual coming into an officer's automobile and having the
conversation recorded even though the wire is not on the officer's
person, but in the car itself. That would not be allowed under the
bill as it is presently drafted.
Number 0187
CHAIRMAN KOTT asked Ms. Carpeneti whether she is talking about a
privately owned automobile or a black-and-white police automobile.
MS. CARPENETI replied she is talking about an unmarked police
officer's car.
CHAIRMAN KOTT said, so a person wouldn't know it was a police
officer.
MS. CARPENETI said right.
MS. CARPENETI referred to Section 3(8), of the bill, and stated the
department would recommend that it not be included. This activity
has been upheld by the courts in Quinto and Reynolds. A peace
officer in uniform can record a suspect's conversation, and even if
an officer is not in uniform as long as the suspect knows he is an
officer. By including it in the bill, the courts may question the
language - "uniformed peace officer" - and interpret it to not mean
a peace officer who is not in uniform is not included and may not
be covered under this exemption. She suggested considering the
issue of when an officer is killed and provisions on whether or not
what the monitoring officer heard can be used [as evidence]. In
addition, she suggested considering Evidence Rule 412 where, in
cases of perjury, evidence can be used that was obtained from a
confession in a prosecution for perjury, or specifically provide
for otherwise.
Number 0388
REPRESENTATIVE GREEN asked Ms. Carpeneti whether there is an avenue
to take to help law enforcement enhance their ability to catch "bad
guys" in terms of letting them off because what was heard is not
admissible.
MS. CARPENETI replied there could be language indicating, in the
event the officer who is wearing the body wire is killed, the
evidence can be used by the monitoring officer. It could be an
exemption.
Number 0456
REPRESENTATIVE GREEN asked Ms. Carpeneti whether the bill could
read - "put in harm's way" - rather then "killed." In other words,
where does it stop? Things have changed in the past twenty years;
it's dangerous out there.
MS. CARPENETI said everybody has said, this bill would be litigated
and it's not clear whether it would be upheld.
Number 0546
REPRESENTATIVE CROFT said: "Let me understand that perjury idea.
So, we--it would pass this bill and somebody may have a security
wiretap on a police--undercover police officer who goes in to make
a buy. They make a buy. They prosecute the guy for it. The guy
stands up and says, 'I didn't do it,' in court and is convicted.
Well, even before conviction, stands up testifies and says, 'I
wasn't there' or 'I didn't say--sell it to him.' And, then we say
'ah ha' now that you've said that we're bringing in the officer who
was out in the car and say, 'What did you hear on the wire?'
Didn't you hear him say, 'I'll sell you twenty pounds of
heroin.'...
MS. CARPENETI interjected and said she was thinking of it more as
a separate prosecution.
REPRESENTATIVE CROFT noted that is possible too under evidentiary
rule. It doesn't go to prove the truth of the matter, but to
impeach the person who said it.
MS. CARPENETI reiterated she was thinking of it more as a separate
prosecution. It's probably safer to keep the bill as it is, but at
a certain point it won't work if an officer is lost.
Number 0652
REPRESENTATIVE CROFT asked Ms. Carpeneti whether he is right about
the impeachment possibility, if there isn't a caveat in the bill.
MS. CARPENETI said it couldn't be used in any circumstances under
the bill the way it is drafted.
Number 0680
REPRESENTATIVE KERTTULA wondered, if a defendant perjury himself,
whether it can be used as impeachment since the evidence is
suppressed because of a constitutional ruling.
MS. CARPENETI said it can be used if there is a violation of a
person's Miranda rights.
Number 0728
CHAIRMAN KOTT stated it is the intent of the Chairman to hold the
bill over until tomorrow [April 22, 1999].
HB 158 - NOTICE OF INS. CANCELLATION TO ELDERLY
CHAIRMAN KOTT announced that the next order of business is HB 158,
"An Act relating to the annual report of the director of the
division of insurance and to notice of cancellation of personal
insurance."
CHAIRMAN KOTT indicated that the committee will take up CSHB
158(L&C), Version 1-LS0128\I.
Number 0889
REPRESENTATIVE ROKEBERG, Sponsor of HB 158, explained that the bill
would permit the Division of Insurance [Department of Commerce and
Economic Development] to gather in-depth statistical information
regarding health insurance policies. The bill would also provide
a mechanism by which to inform Alaskan seniors of a missed
insurance payment. Representative Rokeberg informed the committee
that one of his constituents, an over 80-year-old man, was in a
substantial automobile accident and did not realize that he had not
paid his premium.
REPRESENTATIVE ROKEBERG noted that the House Labor and Commerce
Standing committee worked with the insurance industry in order to
develop a compromise bill. The original bill required certified
mailings. This bill covers personal insurance which includes
property, casualty, automobile, and liability type insurance.
Under HB 158, notification is provided to all insurers in Alaska
that a person 70 years old or older has the right to designate a
third party to receive notice of payment of premium and/or
cancellation on three occasions per current statute. The industry
is willing to send multiple notices for the three different
statutory notification requirements. This is believed to be of
lesser cost to the insurance industry and would not create a
mandate as would requiring certified return receipt mailings. This
bill is supported by a number of senior groups around the state.
CHAIRMAN KOTT noted that the committee substitute elevates the age
from 67 to 70. He asked Representative Rokeberg why that was
changed.
REPRESENTATIVE ROKEBERG informed the committee that testimony in
the House Labor and Commerce Standing Committee from the Division
of Motor Vehicles [Department of Administration] and senior groups
revealed that the condition of dementia increases with age and
becomes particularly acute around the age of 70. Therefore, rather
than using the new social security age of 67, the age was raised to
70 which would include some 16,000 people.
CHAIRMAN KOTT asked whether all of the personal insurance policies
addressed in the bill require a person to provide his age.
REPRESENTATIVE ROKEBERG stated the industry believes that
information would be available due to underwriting purposes.
CHAIRMAN KOTT asked whether that applies to homeowner's insurance.
REPRESENTATIVE ROKEBERG noted that was discussed. The testimony
indicated that the age information would be available and it would
not be a burden on the insurance industry. If the insurance
industry does not have this information, it will have to gather it.
CHAIRMAN KOTT inquired as to why the certification and registered
mail requirement was omitted.
REPRESENTATIVE ROKEBERG explained that, currently, the insurance
industry mails by certification with a computer printout and
delivers the mail to the U.S. Post Office. That list is filed as
their proof of mailing for cancellation. The insurance industry
felt that if an individual certified mail, return receipt requested
there would be fairly substantial fiscal note implications which
would be passed on to the consumers. Representative Rokeberg did
not want to, in the process of protecting people, end up raising
their premiums.
Number 1255
REPRESENTATIVE GREEN asked whether there would be any litigation
caused later if a notice was sent to the designated recipient.
REPRESENTATIVE ROKEBERG clarified that the notice would be sent to
both parties. The insurance industry is mandated to inform an
individual of the availability of this option in the regular
notification.
REPRESENTATIVE GREEN asked, if the insurance company fails to
notify the bill payer, would that alleviate the fact that the
elderly are not covered because the payments were not made.
REPRESENTATIVE ROKEBERG stated that the level of notification has
been increased. The desire is to avoid a situation in which the
individual does not have coverage as was the case for
Representative Rokeberg's constituent. He acknowledged that some
coverages have grace periods.
REPRESENTATIVE MURKOWSKI noted that there were discussions
regarding grace periods in the House Labor and Commerce Standing
Committee. She feels that if this is going to be done for personal
insurance, it should also be done for life and health insurance as
well. She informed the committee that typically, life insurance
has an allowance for a grace period for reinstatement, which is not
the case for personal insurance policies.
CHAIRMAN KOTT pointed out that the committee packet includes a
letter from the Alliance of American Insurers which indicates that
homeowner's policies do not make any reference to the age of the
insured. He said, "Is that just a 'red herring' that they are
throwing up or would they change there way of doing business and
require age to be recognized?"
REPRESENTATIVE ROKEBERG deferred the question to Mr. George
[lobbyist for the National Association of Independent Insurers].
REPRESENTATIVE KERTTULA indicated that there may be a language
error in Section 2(1) of the committee substitute.
REPRESENTATIVE ROKEBERG stated that the language was taken from
existing law.
Number 1498
JOHN GEORGE, Lobbyist for the National Association of Independent
Insurers, informed the committee that it does not really matter
whether the insurance company has the age of the individual in the
file. This requires that everyone be offered a notice saying that
if a person is 70 years of age or older, that person may request to
be placed in the multiple notification program. At some point,
there would have to be a determination that the individual
requesting this multiple notification is actually age 70 or older.
That information could be ascertained upon request of the program.
Mr. George noted that this would apply primarily to homeowner's
insurance, fire insurance, and auto insurance.
REPRESENTATIVE MURKOWSKI asked whether it would be possible to
request dual statements for individuals under the age of 70.
MR. GEORGE noted that there are notices to lenders, however there
is no statutory requirement for an insurance company to offer that.
Mr. George assumed that some insurance companies would offer that
service if requested. This legislation would require that the
insurance company provide that notification if the individual is
over the age of 70. Mr. George emphasized that insurance companies
are not in the business of canceling insurance, but rather
insurance companies are in the business of writing insurance.
Insurance companies would like to keep a policy in effect once it
is in effect.
CHAIRMAN KOTT closed the meeting to public testimony.
Number 1643
CHAIRMAN KOTT moved to report HB 158 [CSHB 158(L&C), Version
1-LS0128\I] out of committee with individual recommendations and
accompanying zero fiscal notes. There being no objection, HB 158
was so moved from the House Judiciary Standing Committee.
CHAIRMAN KOTT called for an at-ease at 3:12 p.m. and called the
meeting back to order at 3:13 p.m.
HB 28 - SURCHARGE ON FINES; YOUTH COURTS
CHAIRMAN KOTT announced the next order of business is HB 28, "An
Act imposing a surcharge on fines imposed for misdemeanors,
infractions, and violations and authorizing disposition of
estimated receipts from that surcharge; and creating the juvenile
justice grant fund in order to provide financial assistance for the
operation of youth courts."
Number 1699
KATE AMPHAY, Intern, for Representative Eric Croft, Alaska State
Legislature, came before the committee to present the sponsor
statement. The bill is about a stable funding source for the youth
courts throughout the state. It creates a juvenile justice grant
fund which would provide $80,000 in matching grants to communities
who would like to set up a youth court. The youth courts are
worthwhile programs because they save $30,000 per defendant. An
average of $9,000 is paid annually to the youth courts to
compensate the victims of juvenile crimes. It's an effective way
to deal with juvenile crime in communities. The youths who have
committed crimes learn that if they had gone to an actual court the
crime would become part of a record. Youth court gives them a
second chance. In addition, those who participate in youth court
as judges and attorneys have gone through a rigorous course taught
by actual attorneys who volunteer their time. The Anchorage Youth
Court handles about 500 cases per year. Of those 500 cases, there
is a very low rate of recidivism - 11 percent. That means 89
percent of the completed cases are done successfully. She
believes, that the participants in youth court learn certain skills
that are valuable throughout their lives. She cited clear logical
thinking as an example. Some who participate as a defendant decide
to join the court and straighten out. That aside, it's one thing
to say that the youth court is a successful program, but every
successful program has room for growth to be even more successful.
This committee is considering HB 151, which would give the youth
courts the opportunity to hear alcohol-related cases. The point
is, in order for this program to grow and take on more
responsibilities, it needs to be supported. She reiterated the
grant would provide a stable source of funding. She noted that
there is some concern about whether or not the funds would infringe
on the police training program. That is not the goal. The sponsor
doesn't want to infringe upon those funds and is willing to work to
ensure that the bill becomes an applicable piece of legislation.
Number 2015
REPRESENTATIVE GREEN asked Ms. Amphay to clarify the 89 percent
figure.
MS. AMPHAY stated that 89 percent of the cases that are completed
by youth courts are successful. The recidivism rate is 11 percent.
The figures are based on a three-year span. She also noted that
the youth courts model their system after the actual court system.
Number 2065
CHAIRMAN KOTT pointed out that nine out of ten youths do not
re-offend, according to the sponsor statement. The youth courts do
not let anybody off on a technicality.
Number 2078
MS. AMPHAY further noted that those who go through the youth courts
participate in community service as part of their punishment, earn
back the $50 that is charged to hear their case, and write
letters-of-understanding to the victim(s).
Number 2126
LINDA JOHNSON, Legal Advisor, Anchorage Youth Court (AYC),
testified via teleconference from Anchorage. The money that the
bill would create is needed by all the youth courts around the
state. The AYC, currently, receives about $22,300 from the federal
government in grants. However, the grant cannot be applied for
next year because it has run its course. The AYC has been
receiving about $110,000 from the municipality mostly as revenue
sharing monies, which is in jeopardy. Today, without taking on new
alcohol cases and without expanding staff - and it is understaffed
- the AYC needs about $250,000 per year to run its program. She
noted that the youth court in Kodiak would take more cases if it
had more money. All the youth courts around the state are always
scrambling to support themselves. Anchorage Youth Court has never
asked for money from the state, and the state has never given any
money. She noted that the intervention and education that the
youth courts provide helps prevent re-offenders and takes a load
off of the court system and probation officers. In effect, it
tries to lessen the burden on the state.
Number 2290
WENDY LEACH, Executive Director, North Star Youth Court, testified
via teleconference from Fairbanks. The youth court in Fairbanks
had an 8 percent recidivism rate for the first year and a half of
its operation. That means 92 percent of the offenders did not come
back through the program. All of the youth courts are always
scrambling for funding. As a new program, the North Star Youth
court started off in a small cabin. It continues to write grants
for funding. A permanent source of funding is crucial to the
continuing operation for all of the youth courts. Most of them are
operating as nonprofit organizations and address prevention needs
and early intervention. A permanent source of funding would not
only secure the continued operation of the youth courts, but also
work to establish additional ones. She cited Delta Junction is
interested in starting a youth court. In addition, there is no way
that the North Star Youth Court would be able to take on the
consuming cases addressed in another House bill [HB 151], without
additional funding. The youth who participate in the program go
through an inordinate amount of hours of training, and the
offenders who come through the program also serve as jurors,
provide community work service hours, and provide a restoration to
the victim(s). It is important to note that, in the absence of the
North Star Youth Court, the youth who are being arrested at the
misdemeanor level are at the most receiving a 30 to 45 minute
conference with a juvenile probation officer, which is not adequate
to meet the needs of these youths. When the youth court sees
them...
TAPE 99-37, SIDE B
Number 0001
MS. LEACH continued. In Fairbanks, the youth court is handling a
number of domestic violence cases. These are youth who have
committed crimes against their mothers or grandmothers within their
homes. She could go on about how it is important to offer a
permanent source of funding for the continued operation and further
establishment of youth courts throughout the state, but she would
also like to let others testify.
Number 0040
LISA MAKAR, Program Coordinator, Mat-Su Youth Court, testified via
teleconference from Mat-Su. She wanted to plug all the adult
attorneys who help the program and the public defender's office in
the valley, which has almost single-handedly organized the
volunteers. They work really hard and even on their weekends. It
is so important to address the youth-in-trouble in the very
beginning and to work on prevention and intervention. She worked
at McLaughlin Youth Center for over ten years. She has seen both
sides of the story. She knows that the first time a youth is
arrested is a very important time. She asked the committee members
to consider supporting the bill.
Number 0097
MATT NEIL testified via teleconference from Anchorage. He noted
that the 98-percent figure is accurate. He does the statistics for
the youth courts and works with the Volunteers of America's youth
restitution program. Over a three-year time frame, the youth
courts have given over 25,000 hours to local nonprofit programs,
and have paid over $23,000 directly to victims as restitution. It
has been very successful. In addition, he noted that the Office of
Juvenile Justice and Delinquency Prevention [U.S. Department of
Justice] has indicated the importance of the immediate consequence
and social response to an action. He strongly encouraged the
committee members to support the bill.
Number 0167
BILL EDWARDS testified via teleconference from Anchorage. He is a
judge with the youth court program. It is the best program that he
has been a part of in the city. It has taught him indelible
lessons. It has given him many skills, which is a purpose of the
youth courts as well. The recidivism rate speaks to the effect of
the program, but in talking to the offenders, it really has had an
effect on them. They care about what has been told to them.
Number 0235
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, waived his time to others
wanting to testify.
Number 0246
LADDIE SHAW, Executive Director, Alaska Police Standards Council,
Department of Public Safety, testified via teleconference from
Anchorage. He noted that the surcharge, in the current bill, is
$25.
CHAIRMAN KOTT stated that is correct. There is an amendment
reducing it to $10.
Number 0270
MR. SHAW explained his concern. The council has a surcharge of $50
for misdemeanor offenses when an incarceration may be imposed, and
a surcharge of $10 for all other offenses and infractions. He is
concerned that a $25 surcharge may do some harm to the collections
of the council.
CHAIRMAN KOTT said that is one of the reasons for the amendment.
Number 0296
STUART BANNAN, Vice-President, Anchorage Youth Court Bar
Association, testified via teleconference from Anchorage. He is
also a judge. The youth courts are effective because they treat
the offenders as people. They receive two defense attorneys and
two prosecutors to represent the state. Even though they are
criminals, they are people that can be rehabilitated.
Number 0370
RANDALL PATTERSON, Vice President, Anchorage Youth Court Board of
Directors, testified via teleconference from Anchorage. He is a
former public defender and currently practices criminal defense
cases. The criminal defense lawyer in him doesn't like the idea of
having a client pay additional money at the end of a case. Often
times, they don't have the money to pay and it becomes an
additional burden. However, this particular surcharge is something
that is needed for the reasons outlined earlier by Ms. Johnson.
The Anchorage Youth Court is in danger of losing about one-half of
its budget, so it's important to point out that the youth courts
around the state provide a service that would have to be provided
- or should be provided - by the state if the courts were not here.
If they weren't here, that service would be provided by the
Department of Health and Social Services and the court system. The
youth courts save the state a lot of money and, therefore, the
surcharge is a good idea. He asked the committee members to pass
the bill out of the committee.
Number 0485
ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections,
Division of Family and Youth Services, Department of Health and
Social Services, came before the committee to testify. The
department supports the bill and encourages the legislature to find
any steady stream of funding for a very viable resource.
Number 0516
CHAIRMAN KOTT closed the meeting to public testimony.
Number 0528
REPRESENTATIVE CROFT made a motion to move Amendment 1
[1-LS0212\A.1, Luckhaupt, 2/22/99]. There being no objection, it
was so adopted. It reads as follows:
Page 2, line 24:
Delete "$25"
Insert "$10"
Number 0548
REPRESENTATIVE GREEN made a motion to move HB 28, as amended, from
the committee with individual recommendations and the attached
fiscal note(s). There being no objection, CSHB 28(JUD) was so
moved from the House Judiciary Standing Committee.
ADJOURNMENT
Number 0570
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 3:45 p.m.
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