Legislature(1999 - 2000)
04/28/1999 01:20 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 28, 1999
1:20 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
MEMBERS ABSENT
Representative Beth Kerttula
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 18
Proposing an amendment to the Constitution of the State of Alaska
relating to an office of administrative hearings.
- HEARD AND HELD
SENATE JOINT RESOLUTION NO. 3
Proposing an amendment to the Constitution of the State of Alaska
relating to the repeal of regulations by the legislature.
- HEARD AND HELD
HOUSE BILL NO. 177
"An Act relating to foster parents; relating to the right of foster
parents to have notice of, and testify at, delinquency hearings and
to the disclosure of minors' records to foster parents; and
amending Rules 3, 7, 10, 12, 21, 23, and 25, Alaska Delinquency
Rules."
- MOVED CSHB 177(HES) OUT OF COMMITTEE
* SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 33
"An Act relating to arrests."
- MOVED CSSSHB 33(JUD) OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 18
SHORT TITLE: CONST. AM: ADMINISTRATIVE HEARINGS
SPONSOR(S): REPRESENTATIVES(S) OGAN, Foster, Dyson, Rokeberg
Jrn-Date Jrn-Page Action
2/24/99 300 (H) READ THE FIRST TIME - REFERRAL(S)
2/24/99 300 (H) STA, JUD, FIN
2/26/99 328 (H) COSPONSOR(S): FOSTER
3/04/99 (H) STA AT 8:00 AM CAPITOL 102
3/04/99 (H) HEARD AND HELD
3/04/99 (H) MINUTE(STA)
3/05/99 377 (H) COSPONSOR(S): DYSON, ROKEBERG
3/09/99 (H) STA AT 8:00 AM CAPITOL 102
3/09/99 (H) SCHEDULED BUT NOT HEARD
3/16/99 (H) STA AT 8:00 AM CAPITOL 102
3/16/99 (H) MOVED CSHJR 18(STA) OUT OF COMMITTEE
3/16/99 (H) MINUTE(STA)
3/17/99 489 (H) STA RPT CS(STA) NT 4DP 2DNP
3/17/99 489 (H) DP: JAMES, COGHILL, WHITAKER, OGAN;
3/17/99 489 (H) DNP: SMALLEY, KERTTULA
3/17/99 490 (H) FISCAL NOTE (GOV)
3/17/99 490 (H) REFERRED TO JUD
3/24/99 (H) JUD AT 1:00 PM CAPITOL 120
3/24/99 (H) HEARD AND HELD
3/24/99 (H) MINUTE(JUD)
3/29/99 (H) JUD AT 1:00 PM CAPITOL 120
3/29/99 (H) HEARD AND HELD SUBCMTE APPOINTED
3/29/99 (H) MINUTE(JUD)
4/28/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SJR 3
SHORT TITLE: REPEAL OF REGULATIONS BY LEGISLATURE
SPONSOR(S): SENATOR(S) TAYLOR, Kelly Tim, Phillips;
REPRESENTATIVE(S) Harris
Jrn-Date Jrn-Page Action
1/21/99 43 (S) READ THE FIRST TIME - REFERRAL(S)
1/21/99 44 (S) STA, FIN
1/28/99 (S) STA AT 3:30 PM BELTZ ROOM 211
1/28/99 (S) MOVED OUT OF COMMITTEE
1/28/99 (S) MINUTE(STA)
2/01/99 125 (S) STA RPT 3DP 1DNP
2/01/99 125 (S) DP: WARD, PHILLIPS, MACKIE; DNP:
ELTON
2/01/99 125 (S) ZERO FISCAL NOTE (S. STA)
2/05/99 164 (S) ZERO FISCAL NOTE (GOV)
2/11/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
2/11/99 (S) HEARD AND HELD
2/11/99 (S) MINUTE(FIN)
2/11/99 227 (S) FISCAL NOTE (GOV)
2/16/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
2/16/99 (S) MOVED OUT OF COMMITTEE
2/16/99 (S) MINUTE(FIN)
2/16/99 256 (S) FIN RPT 2DP 4NR 1DNP
2/16/99 256 (S) DP: TORGERSON, PARNELL; NR: GREEN,
2/16/99 256 (S) PETE KELLY, WILKEN, LEMAN; DNP: ADAMS
2/16/99 256 (S) PREVIOUS FN (GOV)
3/15/99 (S) RLS AT 1:40 PM FAHRENKAMP 203
3/15/99 (S) MINUTE(RLS)
3/16/99 564 (S) RULES TO CALENDAR AND 1 OR 3/16/99
3/16/99 570 (S) READ THE SECOND TIME
3/16/99 571 (S) ADVANCE TO THIRD READING FLD Y14 N4
E2
3/16/99 571 (S) THIRD READING 3/17 CALENDAR
3/17/99 585 (S) READ THE THIRD TIME SJR 3
3/17/99 585 (S) COSPONSOR(S): TIM KELLY, PHILLIPS
3/17/99 586 (S) PASSED Y14 N4 E2
3/17/99 586 (S) ELLIS NOTICE OF RECONSIDERATION
3/17/99 587 (S) RECON TAKEN UP SAME DAY UNAN CONSENT
3/17/99 587 (S) HELD ON RECONSIDERATION TO 3/23
CALENDAR
3/23/99 650 (S) BEFORE THE SENATE ON RECONSIDERATION
3/23/99 651 (S) PASSED ON RECONSIDERATION Y15 N5
3/23/99 652 (S) TRANSMITTED TO (H)
3/24/99 544 (H) READ THE FIRST TIME - REFERRAL(S)
3/24/99 544 (H) STA, JUD, FINANCE
3/24/99 562 (H) CROSS SPONSOR(S): HARRIS
4/08/99 (H) STA AT 8:00 AM CAPITOL 102
4/08/99 (H) MOVED OUT OF COMMITTEE
4/08/99 (H) MINUTE(STA)
4/08/99 687 (H) STA RPT 4DP 2DNP 1NR
4/08/99 687 (H) DP: JAMES, COGHILL, WHITAKER, OGAN;
4/08/99 687 (H) DNP: SMALLEY, KERTTULA; NR: HUDSON
4/08/99 687 (H) SENATE FISCAL NOTE (GOV) 2/11/99
4/08/99 687 (H) REFERRED TO JUD
4/26/99 (H) JUD AT 1:00 PM CAPITOL 120
4/26/99 (H) HEARD AND HELD
4/28/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 177
SHORT TITLE: FOSTER CARE & DELINQUENT MINORS
SPONSOR(S): REPRESENTATIVES(S) DYSON, Croft, Smalley, Ogan,
Cissna
Jrn-Date Jrn-Page Action
4/07/99 670 (H) READ THE FIRST TIME - REFERRAL(S)
4/07/99 670 (H) HES, JUD
4/15/99 (H) HES AT 3:00 PM CAPITOL 106
4/15/99 (H) MOVED CSHB 177(HES) OUT OF COMMITTEE
4/15/99 (H) MINUTE(HES)
4/19/99 864 (H) HES RPT CS(HES) 3DP 1NR
4/19/99 865 (H) DP: DYSON, COGHILL, BRICE; NR:
KEMPLEN
4/19/99 865 (H) 2 ZERO FISCAL NOTES (ADMINISTRATION,
DHSS)
4/28/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SSHB 33
SHORT TITLE: ARRESTS BY PRIVATE PERSONS
SPONSOR(S): REPRESENTATIVES(S) DYSON, Green, James, Kott
Jrn-Date Jrn-Page Action
1/19/99 26 (H) PREFILE RELEASED 1/8/99
1/19/99 26 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 26 (H) JUDICIARY
3/05/99 367 (H) SPONSOR SUBSTITUTE INTRODUCED
3/05/99 367 (H) READ THE FIRST TIME - REFERRAL(S)
3/05/99 367 (H) JUDICIARY
4/28/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOHN KIMMEL, Legislative Administrative Assistant
to Senator Robin Taylor
Alaska State Legislature
Capitol Building, Room 30
Juneau, Alaska 99801
Telephone: (907) 465-3922
POSITION STATEMENT: Presented sponsor statement on SJR 3.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Sponsor of HB 177 and SSHB 33.
LISA TORKELSON, Legislative Assistant
to Representative Fred Dyson
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Explained HB 177.
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 favor of HB 177.
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 in favor of HB 177 and SSHB 33.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System
820 West 4th Avenue
Anchorage, Alaska 99501-2005
Telephone: (907) 264-8265
POSITION STATEMENT: Testified on HB 177.
DAVID HUDSON, First Sergeant
Division of Alaska State Troopers
Department of Public Safety
5700 East Tudor Road
Anchorage, Alaska 99507-1225
Telephone: (Not provided)
POSITION STATEMENT: Testified on SSHB 33.
CORY WINCHELL, Administrative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Testified on SSHB 33.
ACTION NARRATIVE
TAPE 99-43, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:20 p.m. Members present at the call to order
were Representatives Kott, Rokeberg, James, Murkowski and Croft.
Representative Green arrived at 2:45 p.m.
HJR 18 - CONST. AM: ADMINISTRATIVE HEARINGS
CHAIRMAN KOTT announced the first order of business is House Joint
Resolution 18, Proposing amendments to the Constitution of the
State of Alaska relating to an office of administrative hearings.
Number 0137
REPRESENTATIVE MURKOWSKI said the subcommittee met and made some
changes to the resolution. She indicated that Subsection C was
added on page 1, beginning on line 14, and reads as follows:
The legislature may exempt any agency of the State from
(a) of this section by law.
REPRESENTATIVE MURKOWSKI further stated that this was added to
address the concerns that were in the initial resolution where it
appeared that the legislature, in fact, did not have the authority
to decide who may or may not be in or out with regards to the full
centralized office of administrative hearings. She said there had
been some discussion over language that would have specifically
exempted boards and commissions. She feels, as do those on the
subcommittee, that this legislation is far from perfect, and that
it needs review during the interim.
REPRESENTATIVE ROKEBERG stated that he is satisfied with the
stipulation, regarding an agency and the ability to include or
exclude, to include the boards and the commissions. He believes
this will help the success of this resolution.
REPRESENTATIVE CROFT asked, "What change does this make in our
power to do anything in this area?"
REPRESENTATIVE MURKOWSKI stated that she understood that the
testimony indicates that the public needs to basically provide the
direction to the legislature that "you shall create an office of
administrative hearing that is your centralized office." She said
if this is not put before the people then this legislature would
not do it.
REPRESENTATIVE CROFT commented that it does not change the legal
authority in this area.
REPRESENTATIVE MURKOWSKI replied that she does not believe it
changes the legal authority in this area.
Number 0430
REPRESENTATIVE JAMES stated that she was happy to see the inclusion
of Subsection C because she feels, without it, the issue is dead.
She said, "I think this is probably one of the best things that we
could do. It couldn't have been done by statute, but we couldn't
pass it by statute. We might have a little problem getting a
constitutional amendment passed. I'd be happy to talk to anybody
about this issue. From a practical standpoint, I know that what
happens with us when we have a system, and you get used to the
system, we don't want change, and we think that what we're doing
works perfectly fine. We can find all kinds of excuses, from the
fact that no one else would know how to do this. No one else would
have the expertise. All of those kinds of excuses are not valid
excuses. It's to say that, 'I'm the only one that smart, and no
one else is smart, so no one else can do this besides me.' So, I
think ... in the regulation process, where the regulations are
written by the agency, they are enforced by the agency, and, if you
want to appeal any of those actions, you appeal to the same agency.
That is not democracy. So, I think this is a really good plan to
have innocent, third-party decision-makers in the appeal process."
Number 0584
REPRESENTATIVE ROKEBERG stated that he would also prefer to have
this done by statute. He said, "But that would require that the
administration would cooperate (indisc.)."
REPRESENTATIVE CROFT said no and stated, "We have a veto-proof
majority. We can do it anytime we want."
REPRESENTATIVE ROKEBERG indicated that it is his preference that
the administration and legislature work jointly on this. He thinks
it is an excellent model for reducing costs and providing better
service to the people of Alaska. He made a motion to adopt the
proposed committee substitute [Version I, Cook, 4/27/99]. There
being no objection, it was so ordered.
REPRESENTATIVE ROKEBERG made a motion to move Version I, with
individual recommendations and zero fiscal notes, out of the
committee.
CHAIRMAN KOTT objected, noting that they did not have the votes.
He asked Representative Rokeberg to withdraw his motion.
Number 0666
REPRESENTATIVE ROKEBERG withdrew his motion.
CHAIRMAN KOTT asked Representative Murkowski to comment on her
concerns regarding the resolution.
Number 0685
REPRESENTATIVE MURKOWSKI stated that it is her understanding that
the attempt the sponsor made, in terms of getting the resolution
through statutorily, was rather tortuous, and ended up with a
product that was not feasible. She noted that there was some
concern expressed that it cannot be done statutorily because there
was some opposition from those within the department and the
administration. Her indication is that the administration
recognize the benefits and merits of pursuing this and are willing
to work with the sponsor and subcommittee to make it happen. She
said, "Because it is such a major step, though, in terms of how we
handle our administrative hearings, it wasn't something that my
subcommittee is able to do at this point in time. I don't think,
though, that that same resistance, if you will, or perceived
resistance is there now. I think that there is a recognition that
perhaps the system does not work as it should. ... I think that it
deserves more scrutiny and more work."
REPRESENTATIVE JAMES stated that she appreciates what
Representative Murkowski said. She believes that if the
administration cooperated, there is no reason that this could not
be done by statute. She indicated that she is encouraged by the
tone reported from the administration by Representative Murkowski.
She thinks that maybe having a constitutional amendment has made
them look a little harder, or maybe they have been persuaded in
some other way.
Number 0876
CHAIRMAN KOTT noted that from his discussion with the
administration it was suggested that they were more than willing to
sit down and craft some legislation that would attempt to satisfy
the intent of the resolution. He is concerned about "entrenching
our Constitution." He stated that a statute would have to be
passed to make this work, and he does not think putting the cart
before the horse is the way to go. It is his intent to hold the
resolution in the committee and work on the resolution during the
interim. He commented that it is not the intent to let the
resolution sit in committee without subsequent legislation going
forward.
REPRESENTATIVE JAMES stated that she would be willing to offer her
expertise on this issue.
CHAIRMAN KOTT indicated that he does not want anyone in the
administration to think that the resolution is "D.O.A" [dead on
arrival] to this committee. He stated that he would like to have
one shot to work on the resolution in order to give it a legitimate
chance to pass.
REPRESENTATIVE CROFT said, "I was here when the statutory version
by the same sponsor as this resolution came before us. And, I
mean, it was this committee, in its prior form, saw enough problems
with it that we didn't think it should go forward. It has serious
flaws that the sponsor never rectified, never corrected. I've
before had the experience of driving down the road and rolling down
the window and telling somebody they've got a flat tire and having
them be pissed off at me. I mean, the administration just pointed
out the problems that were in the bill, and that's their job. It
is not the administration that killed this bill, the Judiciary
Committee killed this bill because it had-last year's
bill-[be]cause it had serious flaws that were never corrected, and
this year I think the Judiciary Committee has appropriate concerns
about this all-or-nothing approach. ... There's never been a
governor's veto of a statute, it's never gotten that far [be]cause
it's never been put in any kind of form that approached reasonable.
It is an extremely time-consuming process to do this right, to try
and do it in a blanket approach. You end up with huge, unintended
consequences; some of which are obvious, some which take a long
time to figure out. ... We may end up, after doing this all
session, or all interim, with the conclusion that there isn't any
significant savings to be had [be]cause the numbers of places that
we do this are so small that you're accumulating small. ... Putting
in our constitution, a directive to do what we have the power to do
now, but allowing us to not do it if we decide not to, is simply,
in my mind, ridiculous."
Number 1271
CHAIRMAN KOTT stated that maybe no savings will be found.
REPRESENTATIVE MURKOWSKI said she was glad that the committee is
willing to undertake this throughout the interim and look at just
those issues. She stated that the items Representative Croft
mentioned are exactly accurate. It is her opinion that there are
very serious and substantial flaws with the resolution. She hopes
the committee considers the concept during the interim, not whether
or not there is a joint resolution coming forward. She appreciates
that Representative Ogan has kept the issue in the forefront.
CHAIRMAN KOTT added that he also applauds Representative Ogan's
attempt. He believes it is a great concept that needs to be
furthered.
REPRESENTATIVE JAMES agrees that this is the way to go. She feels,
without cooperation and help from the administration, that changes
cannot be made. She would also like to fit dispute resolution into
the process in order to have it as the first opportunity, and, if
that does not resolve anything, then have it go on to a hearing
officer. She stated that her goal is to create a better
relationship between the agencies and the public, and what the
public does.
CHAIRMAN KOTT stated that it would be taken into consideration.
Number 1481
REPRESENTATIVE ROKEBERG stated that he does not entirely agree with
the diagnoses of the "death" of this resolution last year. He
believes from discussions with the sponsor that it was as much the
administration's reluctance to further work on the issue as much as
anything else.
REPRESENTATIVE CROFT said, "The administration has no seat on this
committee. I mean, the committee decided from the (indisc.), and
I asked the sponsor then and I'll ask him again this, 'What
questions hasn't the administration, ... or whoever, answered on
behalf?' Last year when I asked him that, it was, 'None, but we
just don't think they like it.' Of course they didn't like it. We
didn't like it. It didn't work, but that's not their fault. I
guess he wanted them to rewrite the bill, ... They didn't do that,
but they did say, I mean, clearly on the record, where the problems
areas were, and what to do with it. ... I will ask again, 'What
questions haven't been answered?' I think they have been, and I
think it's just, it's a very difficult, time-consuming area to do
right, and it has not been done right to date."
Number 1562
CHAIRMAN KOTT said if the resolution had ended up in the House
Judiciary Standing Committee they could have moved it out if the
votes were there. He is not sure about the details, but it is
obvious to him that there must have been a problem or some concerns
by some of the committee members.
REPRESENTATIVE JAMES stated that the best way to provide a working
piece of legislation is for "us to sit on the committee, and have
the administration out there, and we have this interchange." She
indicated that this did not happen last year, and that this year
the administration was not interested in having anything move
forward. She feels that if there is a change of heart now, she is
excited.
CHAIRMAN KOTT indicated that the bill would be held over for
further consideration.
SJR 3 - REPEAL OF REGULATIONS BY LEGISLATURE
CHAIRMAN KOTT stated the next order of business is Senate Joint
Resolution No. 3, Proposing an amendment to the Constitution of the
State of Alaska relating to the repeal of regulations by the
legislature.
Number 1680
JOHN KIMMEL, Legislative Administrative Assistant to Senator Robin
Taylor, came forward to speak on behalf of Senator Taylor, sponsor
of SJR 3. He stated that SJR 3 is a proposed amendment to the
Constitution of the State of Alaska which would grant the
legislature the authority to repeal a regulation adopted by a state
agency that is inconsistent with its enabling statute. It would
also allow the people of Alaska to provide the legislature with the
authority to repeal regulations through a simple resolution. He
indicated that the most onerous portions of state government are
the application of regulations to our lives.
MR. KIMMEL believes that if the legislature can make those
regulations more attuned to legislative intent, the public would be
more pleased with their government and may understand it better.
The public would also know that the policy makers could quickly and
efficiently amend those regulations that they find onerous. He
stated that this issue has come before the voters in the past, and
now the time has come again for the voters to reduce the amount of
time and money spent in legislation. The voters would have a
chance to speak out about the proposed amendment in the next
general election.
Number 1746
CHAIRMAN KOTT asked how many times this issue has been presented to
the voters.
MR. KIMMEL replied that it has been presented to the voters three
times.
REPRESENTATIVE ROKEBERG said, "Once very narrowly (indisc.)."
CHAIRMAN KOTT asked whether it was the first time or the last time.
REPRESENTATIVE ROKEBERG said he believed it was the middle time
[laughter]. He asked whether the Senate changed the language
versus the resolution that was presented to the voters before.
MR. KIMMEL believes the Senate did. He believes the original had
administrative regulations included somehow. He does not know the
entire history of that.
REPRESENTATIVE ROKEBERG stated that it seemed to him that the
language was slightly different and that was one of the concerns.
Number 1808
REPRESENTATIVE CROFT stated that it is important to know the
distinction of the language from the last three times "we've asked
and been rejected." He said, "If we're asking them to do the same
thing, it's one thing, to the extent that there's a material
difference that would be important, but I'd like to see the last
three ones that failed if you have copies of them."
MR. KIMMEL replied that he does not have copies now, but could get
copies for the committee.
REPRESENTATIVE CROFT stated that it seems to be important if there
is any difference from what has been tried three times previously.
REPRESENTATIVE JAMES commented that what was in the voter pamphlet
also needs to be seen. She stated that there was no effort on
anyone's part to pass or not pass that, and it was difficult for
people to understand. She said the other issue is that "it's a
little out of synch with the rest of the things that we do in
government where the first, second and third reading of issues and
where the separation of powers, and, this, to do a resolution to
overturn administrative law is a reach."
REPRESENTATIVE JAMES indicated that we do have the right to undo
regulation by pieces of legislation, but it is difficult to do if
the reason it is being undone is because of the onerous intent that
was not the intent of the legislation. She blames the legislature
for that because they make very bland statements in their
legislation which have to sometimes be characterized by the
administration who sometimes guess wrong. She feels "a hammer" is
needed.
REPRESENTATIVE JAMES stated that some of the states that have
passed this resolution never have to use it is because they have a
hammer. This helps to have the negotiation between the
administration and the legislature in order to solve the problem.
Number 1932
CHAIRMAN KOTT agrees that the problem, to a large extent, has been
brought about by themselves. He said, "It amazes me that if you're
sponsoring a piece of legislation and it passes, and ultimately
signs into law, there's going to be regulations out there. And
then, as the sponsor of your piece of legislation, you should at
least take some interest in the regulations to ensure that they
meet your intent, and then work with the department to clarify
anything that, perhaps, is incorrectly stated in the regulatory
process."
REPRESENTATIVE ROKEBERG informed the committee that he believes the
questions Representative Croft raised earlier can be found in the
file on HJR 1, a bill sponsored by Representatives Rokeberg and
James during the Twentieth Alaska State Legislature. He stated, "I
think one reason we felt very strongly about this last time, we
felt that there was a change in attitude in the interest,
particularly in a business community; as the amount of regulations
has grown over the years because of these problems we just
discussed."
REPRESENTATIVE ROKEBERG believes there is a recognition among the
public now that there has to be a simpler way to rectify some of
those laws by regulation that are promulgated by the bureaucracy
and the administration. He thinks a sound case can be made, and
that the business community is in a position now to get behind
that. He indicated that a point of frustration for he and
Representative James has been airport regulations in which they
tried to change four or five sentences in the leasing law to
correct the commercial leasing activities at the international
airports in the state. He stated that they are still waiting, four
years later, for the regulations which became over 200 pages. He
feels that if this "hammer" had been available back then the
Department of Transportation and Public Facilities could have been
a little more receptive to what the public wanted.
Number 2045
REPRESENTATIVE MURKOWSKI referred to the enactment of a statute by
way of an initiative with regard to the medical use of marijuana.
She stated that the regulations are being worked on now and will
take effect in June. She said there are many who believe the
regulations and the statute are not necessarily consistent with the
intent. She asked whether the ability to repeal the regulation
changes when a statute has been enacted by initiative.
MR. KIMMEL replied that he has not looked at that part of it.
REPRESENTATIVE MURKOWSKI stated, by law, a statute that has been
enacted by initiative cannot be repealed.
REPRESENTATIVE JAMES believes that the same thing might apply in
the case of an initiative as it would in a statutory change. The
reason they would utilize this resolution process is because the
regulations do not implement the intent of the law. She said if
the regulations on the medical marijuana bill do not implement the
intent of the law that would be a reason to turn them over.
REPRESENTATIVE JAMES stated, "If you don't like the regulations and
you can't find something in the law that they are, I mean, the
law's so open, many times it is, that they could do it this way or
this way, and they just chose the wrong way according to your
opinion or according to the public, then that's a different issue.
Then what you need to do is clarify the law if it's not
specifically enough in the law as to what was meant, what the
intent was, and that's why they've guessed wrong and taken the
wrong approach. Then you need to change the law, you don't need to
use a resolution. The only time you use a resolution is if there's
some definite evidence that the regulation does not activate the
intent of the law."
REPRESENTATIVE CROFT expressed frustration at putting in the
Constitution of the State of Alaska various things that "we have
the power to do." He stated that when a regulation is contrary to
statute, you can challenge it. He indicated that sometimes it is
difficult to prove because the statute is so wide open that almost
nothing is contrary to it. He said, "When there's a statute that
we think isn't what we meant, is contrary to the statute, ... but
the administration thinks it was and the court system thinks it was
... that's why we have this separation of powers. That's why it
keeps getting rejected by the people, and, when we try to do it in
statute, unconstitutional. We're saying that's not what we meant.
... We still have an option in that case, which is to change the
statute. ... That's within our power now. ... I think it's been a
consistent view of the people that that's just not, that's
overstepping our bounds. We have a proper role to play in this.
Right now, if the marijuana regulations don't reflect the statute,
... you can pass a law that ... changes it."
REPRESENTATIVE CROFT continued to say, "We've looked at three
strikes, you're out before. I think we're three strikes we're out
on this proposal, and that we ought to start, after being told
three times, at a tremendous expense, 'No', we ought to take 'No'
for an answer. And we ought to start figuring out ways that are
within our constitutional authority. ... Colorado does a sunset of
regulations without law putting them back in. The fact that the
legislature didn't approve it, is the legislature's opinion. ...
It's an idea that is within ... our jurisdiction. The other
[state] ... has a shift in the burden of proof, which I think you
can do constitutionally. If we say, 'That's not what we meant.',
then it's a much harder task to prove that it was. [It] could
still be, right? God forbid, we might act out of pure partisan
political actions in passing the resolution instead of pure public
good. ... A court could still look at it and say, 'Well, the
legislature passed a resolution by a close vote that said that's
not what they meant, but, boy, it fits the statute just hand in
glove', ... but the burden is now shifted. The court is going to
force the person challenging it (indisc.) that it doesn't fit. You
can shift that burden of proof and say, 'If the legislature said,
'That wasn't what we meant.', you, the agency, have to prove it was
before we go any further. All of these things are at least
arguably constitutional. They don't violate separation of powers,
... but I don't know why we're trying to get this dead horse to
stand up and run."
Number 2346
REPRESENTATIVE ROKEBERG responded, "Because of the Alive case."
REPRESENTATIVE CROFT said, "The Alive case told us we couldn't do
it. And we tried three times to get the approval of the people to
do it and they keep telling us 'no.' When are we going to take
'no' for an answer? He believes that there is a genuine separation
of powers argument that the people understand. He stated, "We
ought to take that 'No' for what it was worth and try and figure
out alternative approaches instead of just running this up again."
Number 2369
REPRESENTATIVE JAMES indicated she heard Representative Croft say,
"It's okay. We can do it with a two-thirds vote." She stated the
issue is whether or not this can be done with a two-thirds vote or
a majority vote. She specified that with this constitutional
amendment it can be done with a majority vote, but without the
constitutional amendment it cannot be done. She feels that if the
administration was going to listen and change the regulation then
they would have already done it. She said the public she has been
talking with has said they think a majority vote should do it.
REPRESENTATIVE JAMES stated that a resolution is not subject to a
veto. She does not believe this is completely a whole separation
of powers. She understands Representative Croft's argument and
agrees that this seems to be controverting the whole system of
putting forth a law that has not gone through the process outlined
in the Constitution of the State of Alaska. She said, "Once it
becomes in law, ... then we've given that authority of regulation
writing to the administration, and, so, then we have hands-off
without a two-thirds vote." She thinks it is a problem and she
would be perfectly happy to take back some of the authorization.
However, she does believe this is an option because no one wants to
have the cost of the regulations in the legislature's budget, as
opposed to the administration's budget. She feels it is
unrealistic to believe that a two-thirds vote could always be
accomplished.
TAPE 99-43, SIDE B
Number 0001
REPRESENTATIVE CROFT stated, "We're overruling the executive and
the judiciary when we do this. The executives decided this ought
to be in this way. We've given them the authority (indisc.) to be
in that area, and there either is a judiciary case saying, 'Yeah,
this is within the purview granted by the legislature or not.' So,
it is entirely appropriate that when we seek to overrule the ...
determination of the other two branches of government we do it with
a two-thirds vote."
REPRESENTATIVE CROFT disagreed with Representative James' comment
that the public told her they wanted it by two-thirds. He argued,
"The people have said three times they didn't. They wanted it by
a two-thirds, not a majority. They wanted it the way it was."
REPRESENTATIVE JAMES disagrees about what the court said. She
said, "We didn't have constitutional authority to do what we did.
By putting this in as a constitutional amendment, we have
constitutional authority." She indicated there are several states
that have done constitutional authority this way. She said the net
result is that those states do not have a conflict anymore.
Number 0085
REPRESENTATIVE ROKEBERG agrees with Representative Croft that this
is a separation of powers issue. He said, "When Monsieur
Montesquieu articulated the theory, and our Founding Fathers here
in the state did it, ... At one point, there was not only a
separation of powers theory, but there was even a balancing of
powers theory ... implicit in that, and our Founding Fathers
decided not to do that. They gave up an abundance of power to the
executive. But they did reserve to the legislature the right to be
the policy makers and law makers of the state."
REPRESENTATIVE ROKEBERG believes the legislature should reserve the
right to make the law. By granting authority to the executive
agencies by statutory authority to adopt regulation, he feels we do
cede that power. He stated that the point is to take back that
power. He said he is beguiled by Representative Croft's theory of
having a two-thirds vote to overcome two of the three branches of
government.
Number 0143
REPRESENTATIVE CROFT stated it is his belief that two different
overrulings are being discussed. He referred to the Alive case
that Representative James mentioned and stated that she is right
that this case indicates that constitutional authority was not yet
had. He said other states have ruled that way, and some have not.
Other states are in agreement with the Alive case. He said,
"Clearly, if there's some question on the regulation, the executive
thinks that's the way to go. That's why they put the regulation,
... If it is so out of whack with the statute, you can bring it to
court, and, if you're right, you will win. The court will say,
'Yeah. The statute says black and the reg[ulation] says white.'
And they overrule regulations on that basis. ... We're really
saying we want a power to do that even when a court says, 'Yeah.
That looks like it fits.' That's what I mean by overruling, ...
Not necessarily overruling the Alive case, but there's a branch of
government who [is] supposed to do these reg[ulation]s and they do,
and they disagree with us. Then there's a branch of government
that's supposed to decide if things are done according to law, and
they've said, 'The reg[ulation] fits.'"
REPRESENTATIVE CROFT continued to say, "And we're about to say
you're all wrong. ... We should do that by two-thirds ... We know
resolutions. We have them all the time. ... They propose
constitutional amendments, but aside from that, they're usually of
wimpier stuff. And we should have to go through the formal process
of a bill and have a super majority, a sizable majority, to say
both branches were wrong in this instance. The judiciary upheld
this reg[ulation], the executive put it in, but they're both wrong,
and we're right. We ought to do that with some surety. ... Vetoes
are overridden."
Number 0242
REPRESENTATIVE KOTT stated that SJR 3 would be held in committee.
He requested Mr. Kimmel provide the committee with the last three
ballot propositions and the election pamphlets on this issue.
REPRESENTATIVE MURKOWSKI asked that she be provided with
information on the Alive case.
REPRESENTATIVE JAMES stated that she agrees with the Alive case.
Number 0332
CHAIRMAN KOTT called for a brief at-ease at 2:15 p.m. and called
the meeting back to order at 2:17 p.m.
HB 177 - FOSTER CARE & DELINQUENT MINORS
CHAIRMAN KOTT announced the next order of business is House Bill
177, "An Act relating to foster parents; relating to the right of
foster parents to have notice of, and testify at, delinquency
hearings and to the disclosure of minors' records to foster
parents; and amending Rules 3, 7, 10, 12, 21, 23, and 25, Alaska
Delinquency Rules."
CHAIRMAN KOTT indicated the committee would be taking up CSHB
177(HES), Version 1-LS0760\G.
Number 0344
REPRESENTATIVE FRED DYSON, Alaska State Legislature, came before
the committee as sponsor of HB 177. He noted that the bill cleans
up a piece of the child protection bill from last year. He asked
Ms. Lisa Torkelson to explain the bill.
Number 0366
LISA TORKELSON, Legislative Assistant to Representative Fred Dyson,
Alaska State Legislature, explained last year HB 456 was introduced
which gave the right of foster parents to have notice of and
testify at child-in-need-of-aid delinquency hearings, as well as
disclose to them some records of children in their care. She noted
that the child-in-need-of-aid portion was put into HB 375 - the
governor's child protection bill - and this bill would take the
delinquency portion and make it go to the same level as a child in
need of aid.
Number 0400
REPRESENTATIVE DYSON noted that last year there was unanimous
support for the need of foster parents to have information on past
criminal behavior and behavioral problems; and, that foster parents
would be a valuable asset in the treatment plans, final placement
plans, and court proceedings involving their children. That was
included in the child-in-need-of-aid law, last year, and this bill
takes care of the children in the other category that by-en-large
have been adjudicated as delinquent.
Number 0428
MS. TORKELSON noted that the only reason it was not included in the
governor's child protection bill last year was because it was 64
pages long and it pretty much focused on children in need of aid.
They were not comfortable with adding section 12, which deals with
delinquency, and they requested it be done in a separate bill.
Number 0449
REPRESENTATIVE ROKEBERG asked Representative Dyson why HB 15 is not
stuck in this bill.
REPRESENTATIVE DYSON replied they are very close.
REPRESENTATIVE CROFT AND REPRESENTATIVE MURKOWSKI asked
Representative Rokeberg to explain HB 15.
REPRESENTATIVE ROKEBERG replied it is a bill that gives foster
parents the right to protest the placement or removal of a child
back to his/her natural parent(s) in court.
REPRESENTATIVE DYSON noted he is a co-sponsor of that bill, and it
is a good idea.
Number 0485
REPRESENTATIVE CROFT asked what the material difference is between
the two bills.
REPRESENTATIVE ROKEBERG replied it is the right of a foster parent
to protest the placement or removal of a child back to his/her
natural parent(s) in court.
Number 0516
REPRESENTATIVE CROFT stated that HB 15 assures the right of the
foster parent to have a notice of and testify at delinquency
hearings, but not necessarily ask for a hearing in a particular
factual situation.
REPRESENTATIVE ROKEBERG stated that is the distinction between the
two bills.
MS. TORKELSON said it basically includes the foster parents in the
loop of the department because often times they have the most
knowledge of the children.
Number 0539
REPRESENTATIVE DYSON suggested passing HB 177 out of committee, at
which point he would look at merging the bills either on the House
floor or in the House Rules Standing Committee. He's sorry that he
didn't think of it earlier.
Number 0572
REPRESENTATIVE JAMES said she is happy to see this bill before the
committee. She knows how important it is for foster parents to be
included in the loop. She knows that when they have been left out
of the loop it has been unfortunate for them and the kids.
Furthermore, it's not easy to keep foster parents around. They can
get discouraged fast, and they aren't easy to come by. She knows
of the problems, having been a foster parent herself, but she's not
sure, however, what would happen if a foster parent has erred.
They should also have the right to speak on their own behalf.
Number 0623
CHAIRMAN KOTT called for a brief at-ease at 2:24 p.m. and called
the meeting back to order at 2:25 p.m.
Number 0637
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 in favor of
HB 177. It is appropriate to bring parity between the two statutes
regulating delinquency proceedings and children in need of aid. He
is concerned about HB 15, but as far as HB 177 is written, it is
appropriate. He urged the committee to move it forward.
Number 0666
CHAIRMAN KOTT asked Mr. Buttcane what his specific concerns are
regarding HB 15.
MR. BUTTCANE replied HB 15 speaks to very specific situations that
arise in child-in-need-of-aid proceedings, and muddies the waters
by transposing those into a delinquency proceeding. He would want
to look very carefully at that before speaking in favor of merging
the bills. He noted that it is a sound concept and that he thinks
that foster parents should be treated as partners in dealing with
either delinquents or children in need of aid, but HB 15 is
something that the department probably would not want in the
delinquency statute.
Number 0714
REPRESENTATIVE ROKEBERG stated for clarification that it would not
be in the delinquency statute.
MR. BUTTCANE noted that HB 177 really speaks to the delinquency
statutes.
Number 0751
REPRESENTATIVE CROFT asked Mr. Buttcane to review HB 15 later
knowing that it might be thrown together in the House Rules
Standing Committee. He would like to know whether or not he has
any objections before it goes to the House floor.
REPRESENTATIVE CROFT asked Mr. Buttcane how the
child-in-need-of-aid and delinquency statutes are distinguishable.
MR. BUTTCANE replied a child in need of aid is a person who has
been neglected or abused, whereas a delinquent is a person who has
been a perpetrator or offender. In one, a child is being
protected, while in the other, a child is being regulated to
protect the community.
Number 0830
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, testified via teleconference
from Anchorage in favor of HB 177. Foster parents are a real big
help in juvenile delinquency cases. There appears to be a notice
provision in the early stage of a juvenile delinquency case whereby
a foster parent would have to be notified. The agency is wondering
whether that means a foster parent for child in need of aid in
which that child has done something wrong and has gotten into the
delinquency system. Usually, the placement in a foster home
happens after the arraignment. He further suggested considering
the issue of safety in regards to delinquent children. He referred
the committee members to page 7, Section 9, of the bill, and noted
that foster parents need to know before a child in placed in their
home about their prior records, incidents in that child's life, and
their issues. It looks like the section deals with a court review,
and noted a lot of the court files have pretty confidential
material, such as a psychotherapist's review.
Number 1018
REPRESENTATIVE JAMES said, from personal experience, foster parents
ought to know everything about a foster child in their home. She
doesn't understand his concern about not letting them know what
they need to know in order to parent that child and to know what to
expect.
Number 1046
MR. McCUNE replied he is thinking about a case where an adolescent
boy was sexually abused. The particulars of that abuse would be
discussed with a therapist with a real clear understanding that the
information is kept confidential. Foster parents have a legitimate
need to know the generals of a case, but the particulars are
included in the court's files. A foster parent doesn't need to
know the details of the who, what, when and where.
Number 1115
REPRESENTATIVE JAMES stated a birth parent knows all about the
child from birth, whereas a foster parent has to jump in in the
middle. Foster parents need all the help that they possibly can to
understand what to anticipate and why a child does what he does.
She agrees that the sordid details don't necessarily need to be
part of an issue, but certainly the issues would need to be made
available to the foster parent.
Number 1156
MR. McCUNE agreed with Representative James.
Number 1164
REPRESENTATIVE CROFT asked Mr. McCune whether the foster parents
are considered the guardian or is the state.
MR. McCUNE replied, generally, the Department of Health and Social
Services has legal custody in both juvenile delinquency and
child-in-need-of-aid cases. In child-in-need-of-aid cases there is
a provision just for supervision, and in juvenile delinquency cases
there could be a relative placement where the department would not
have custody.
Number 1213
REPRESENTATIVE CROFT asked Mr. McCune whether that is the reason
for a gap when using the phrase, "parent or legal guardian."
Foster parents fall between the two.
Number 1227
MR. McCUNE replied, yes, but they have been given more and more
rights and considerations in the past several years as the result
of legislation. The buck stops, however, with the Department of
Health and Social Services.
Number 1249
REPRESENTATIVE JAMES responded that is the way it ought to be. A
foster parent needs a place to go for responsibility.
Number 1278
MR. BUTTCANE referred the committee members to page 3, section 3,
of the bill, and noted that it would require the department to
notify the foster parent of an informal action/adjustment, which is
appropriate. A child who is in a foster home may be committing
offenses and is asked to come in and talk with the department to
explain his/her behavior and negotiate a consequence, or be held
accountable through a delinquency petition.
Number 1359
REPRESENTATIVE DYSON asked Mr. McCune whether there are any
qualifying words for Section 9, in the bill, that would make him
feel more comfortable. The language matches the
child-in-need-of-aid section.
MR. McCUNE replied, he thinks, it gives the courts the authority to
hold back information of concern. He doesn't have a proposal to
change it, however.
Number 1419
REPRESENTATIVE ROKEBERG said, according to his reading of the
section, it's just granting a foster parent - the person with a
legitimate interest - the right to look at a portion of the court's
record.
Number 1452
MS. TORKELSON explained that this very issue was addressed last
year, which resulted in the language in the section in order that
the court could choose what information is given to a foster
parent.
Number 1492
REPRESENTATIVE CROFT said he sees the distinction, but he's not
sure that the language accomplishes that. The language really says
the portions relating to the child have to be released, which is
everything. It doesn't say relating to the function or portions
relating to the safety and welfare of what a foster parent should
know. He's not sure how to draft it, however, so that it's not
overly intrusive.
Number 1589
REPRESENTATIVE MURKOWSKI noted that the bill says with the court's
permission. She reads it as having the courts permissions "and" a
person with a legitimate interest.
REPRESENTATIVE CROFT said, "I think that's probably a correct
reading, and if it is, then the court, even with people with
legitimate interests, they don't have to do it if they decide they
don't want to."
Number 1644
REPRESENTATIVE ROKEBERG stated he reads it as the court giving
permission for the portion of a record it wants the foster parent
to see.
Number 1668
CHAIRMAN KOTT said that is the way he reads it as well, and that is
the intent of the sponsor.
Number 1676
REPRESENTATIVE DYSON said, "Slap my mouth. I am more now of the
persuasion than ever, that we need to be wary about limiting court
prerogatives. My view is, we need to get gutter mechanics in the
court system, but allow them quite a bit of discretion. In my
own--the judges that I've dealt with, which are quite a few now,
in--that are dealing with children's issues are generally very
experienced and quite perceptive about these sort of things. My
guess is we will not err or there won't be many problems in
allowing the judges as Representative Rokeberg says is we know the
files for those portions that are inappropriate."
Number 1719
REPRESENTATIVE JAMES said she wishes that she has had the same
experiences.
Number 1730
REPRESENTATIVE ROKEBERG indicated that the committee, if the
sponsor wishes, could put discretionary language in relation to the
court to make it crystal clear.
Number 1766
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System, came
before the committee to answer questions. The language was part of
last year's child protection bill and it should be in this portion
as well. The judges are comfortable with it. The concern that was
brought to him was that the foster parents get the appropriate
information relating to the children, but not information that is
not relevant to them, such as personal information on the natural
parents.
Number 1839
REPRESENTATIVE CROFT referred to AS 47.12.310 and read the
following:
"(H) foster parent or relatives with whom the child is
placed by the department as may be necessary to enable
the foster parents or relatives to provide appropriate
care for the child who is the subject of the case, to
protect the safety of the child who is the subject of the
case, and to protect the safety and property of family
members and visitors of the foster parents or relatives."
REPRESENTATIVE CROFT stated, based on that provision, the committee
may have done enough by putting its concerns on the record.
Number 1926
CHAIRMAN KOTT asked Representative Dyson whether he is comfortable
with the language the way it is.
REPRESENTATIVE DYSON replied yes.
Number 1956
REPRESENTATIVE JAMES made a motion to move CSHB 177(HES) from the
committee with individual recommendations and the attached fiscal
note(s). There being no objection, it was so moved from the House
Judiciary Standing Committee.
SSHB 33 - ARRESTS BY PRIVATE PERSONS
CHAIRMAN KOTT announced the next order of business is Sponsor
Substitute for House Bill No. 33, "An Act relating to bounty
hunters and to capturing criminal suspects or fugitives."
CHAIRMAN KOTT called on Representative Fred Dyson, sponsor of the
bill.
Number 2035
REPRESENTATIVE FRED DYSON, Alaska State Legislature, came before
the committee as sponsor of SSHB 33. He referred to a federal law
back in the 1800s and some federal decisions that allowed for
bounty hunters. This bill was prompted by the unfortunate
experience when two or three gentlemen under contract, broke into
a home in the Kenai area wearing black outfits and brandishing
weapons, took a person out at gunpoint, and handcuffed him. There
was quite a bit of concern. The public safety officers are
concerned also for the people who are contracting to provide this
service, particularly in the areas of Alaska where people take
exception to having their homes broken into in the middle of the
night and are prepared and equipped to resist those efforts. The
first draft just forced the bounty hunters to register with the
local law enforcement. The public safety officers asked them to
just prohibit it. The public safety officers pick up any felony
warrants as soon as they know about them. Any other jurisdiction,
as in Canada or other countries, where they are willing to
extradite, the public safety officers are willing to go out and get
them. The public safety officers don't want people who are ducking
warrants in other states or areas to be running around.
REPRESENTATIVE DYSON further stated he is concerned about the
well-being of the Alaskan citizen who is in custody of some
non-sworn folks, and how they are going to be treated. He also
wonders how the neighbors are supposed to respond to somebody
getting rousted in the middle of the night at gunpoint. It is an
area that needs to be addressed.
Number 2289
REPRESENTATIVE JAMES asked whether this bill just eliminates bounty
hunters or does it eliminate citizen's arrest.
REPRESENTATIVE DYSON replied that it not their intention to do
anything about citizen's arrest. Citizen's arrests are allowed.
REPRESENTATIVE CROFT asked what was the law before Section 1.
TAPE 99-44, SIDE A
Number 0001
REPRESENTATIVE DYSON said, "...for a crime you didn't witness
without a warrant. The only exception to that has been this old
federal decision that empowered bounty hunters in essence do it on
contract. If the person employing them had a warrant or they
themselves or they could contract for folks to go get them. The
law expects you to call the police and report, but they would
choose to have you as a verifying witness not an enthusiastic
participant."
Number 0090
REPRESENTATIVE MURKOWSKI asked whether there is anything on the
state books now that regulates bounty hunters.
REPRESENTATIVE DYSON said that it is his understanding that there
is not.
Number 0136
REPRESENTATIVE MURKOWSKI asked whether there is anything in federal
statute that could be used within the individual states that would
give some guidance or direction.
REPRESENTATIVE DYSON didn't know the answer. Whenever this has
come up, it always goes back to the case in 1867 or 1878 in a
federal court where the decision authorized it. Several states are
moving towards regulating it.
Number 0222
DAVID HUDSON, First Sergeant, Division of Alaska State Troopers,
Department of Public Safety, testified via teleconference from
Anchorage. In regard to the situation in the Kenai area recently,
they support this bill. By placing the onus of arrest on peace
officers in a majority of situations in eliminating the private
persons arrest in crimes not committed or attempted the presence of
the person making the arrest, they hope to eliminate some of the
problems which they have seen regarding bounty hunting. National
news has been responsive to these issues of bounty hunters across
the nation, and there is national bounty hunters association where
anybody, under federal statutes dating back to the 1800s, can go
into another state, or they have no limits to what they can do in
regards to making arrests under the federal statutes of someone who
has absconded from a bail or bondsman or something of that nature.
It is a way of the bail bondsman not losing his/her money when they
put up the funds to have a person released in their community.
They will lose those funds if the person is not brought back before
the court in a specific time. That is what the impetus is for
bounty hunters. There are no particular statutes or licensing
requirements for bounty hunters in the state of Alaska. He doesn't
know of any in other states either. They are in support of the
bill and believe it will preclude situations like the previous one.
REPRESENTATIVE GREEN asked Sergeant Hudson how many arrests have
been made by bounty hunters roughly per year, or per decade.
SERGEANT HUDSON can think of several in his personal experience,
however he has no statistical documentation to provide today to
answer that.
REPRESENTATIVE GREEN asked whether this is not an uncommon thing to
have people being arrested by someone coming in as a bounty hunter.
SERGEANT HUDSON said he is aware of a situation approximately a
year ago in Homer that there was a person in that area, or believed
to be in that area, for whom bounty hunters came after. When they
were unable to locate that individual on their own, they did
contact the Alaska State Troopers. The troopers then verified
that there was a warrant for the individual, and they went out,
located and arrested him. He felt that if the bounty hunters had
been able to find the person in a timely manner, they would have
made the arrest and would have removed the individual from the
state and the troopers probably would have never known about it.
As it is now, they would probably not know about these arrests if
they happened smoothly, and the law enforcement wasn't called in as
it was in the Soldotna case.
REPRESENTATIVE GREEN asked whether Sergeant Hudson has any idea of
how much mischief has been caused by either false arrests or the
Kenai area situation.
SERGEANT HUDSON agreed the scenario in the Kenai area could have
played out extremely different than what it had. If he remembers
correctly, the individual was seized from the father's home, and
the father then took a gun and went looking for the bounty hunters.
There were numerous law enforcement officers who were called to the
scene into areas looking for them for the potential home invasion,
which it sounded like when the call was made for help on 911.
There is no doubt in anybody's mind that the situation could have
turned out extremely different; however, in that case no one was
injured.
Number 0604
REPRESENTATIVE JAMES asked how there wouldn't also be a charge
against these folks for unlawful use of deadly force.
SERGEANT HUDSON replied that these individuals were charged with
assault under Alaska statutes. He is not familiar with what the
status is of the current case.
REPRESENTATIVE DYSON told Representative James that the court case
is going on this week. He asked Sergeant Hudson if he thinks that
the bail bonds industry will almost disappear if the bill does
pass.
SERGEANT HUDSON finds that hard to believe. People are entitled to
bail under the constitution so he suspects that they will continue
to operate no matter how this law changes.
REPRESENTATIVE DYSON asked what the remedy will be if someone jumps
bails or fails to appear on a misdemeanor.
SERGEANT HUDSON answered that if a person fails to respond to
court, the judge would then issue a bench warrant for that person
and they would eventually be arrested through the normal arrest
system. He is unfamiliar with the statutes in regard to bail
bondsmen if a subject doesn't show up to court on Monday, but is
subsequently arrested and taken in front of a magistrate or judge
on Tuesday that is of the bail bondsman's fees would be, so he
can't answer that.
REPRESENTATIVE DYSON commented that bail bondsmen are very
inventive and they will find a way to look after their own
interests.
Number 0772
REPRESENTATIVE CROFT commented that he is still trying to
understand the current law, AS 12.25.030, as to his ability to make
a citizen's arrest. He interprets that he could under part (a)
under three situations: if the crime was committed in his
presence, if he is right about who did it, and if it is a felony
even though it was not committed in his presence, or if he is right
about a felony having been committed, and he has reasonable cause
for believing that the person he goes out and grabs did it.
SERGEANT HUDSON indicated that Representative Croft's
interpretation is similar to what he also sees when he reads this
statute. Currently under AS 12.25.030 under parts (2) and (3), it
allows citizens of the state of Alaska to make an arrest, as a law
enforcement officer could, for a felony either committed or not
committed in their presence or with reasonable suspicion or cause.
Whereas under the amendment that is before them under 12.25.025
which would be in Section 1, lines 6-8, a private person would now
be eliminated from making a felony arrest for a crime committed not
in their presence.
REPRESENTATIVE CROFT asked whether Sections 2 and 3, not including
bounty hunters, have been problematic for the state troopers. He
asked whether they have a lot of vengeance arrests and some that
have been wrong.
SERGEANT HUDSON answered that he is not aware of any specific
problems across the state where a citizen has made a felony arrest,
and it has been an issue. He doesn't have any statistical
information to offer, just his own personal experience.
Number 0954
REPRESENTATIVE GREEN asked Sergeant Hudson if he is familiar with
the article where Dean Guaneli, Chief Assistant Attorney General,
was quoted about untrained people getting liquored up and kicking
in the wrong doors. He asked whether all bounty hunters are
licensed to carry concealed weapons.
SERGEANT HUDSON answered as far as carrying concealed weapons under
the Alaska concealed handgun permit program, there is no formal
carrying concealed weapons for bounty hunters or any other
individuals specifically other than the citizens of the state of
Alaska meeting the criteria as so deemed. There are not any
statutes or laws or licensing in regards to allowing any particular
business, such as a bounty hunter, to carry a concealed weapon.
Even in their security guard licensing program, they are required
to be working for their company, and the weapons are not concealed.
The weapons are exposed, and they wear a uniform and identification
from their company. He is not aware of any specifics in regard to
bounty hunters being legally authorized in the state of Alaska
carrying concealed weapons.
REPRESENTATIVE GREEN are these people uniformed and showing weapons
when they go after these bond jumpers.
SERGEANT HUDSON said in his limited experience with people who
profess to be bounty hunters, they put on what they call a uniform,
put a sign on their back saying that they are bounty hunters or
call themselves whatever they choose to call and wear sidearms and
go about their business. In our state, if they are not carrying a
concealed weapon, if they are carrying a firearm exposed, that is
not against the law unless they are a felon, or there is a
municipal code against that so they can wear some type of
identifying marks as long as they were not impersonating a public
officer, they wouldn't be breaking the law.
REPRESENTATIVE JAMES said she doesn't understand, under existing
laws, that private persons may arrest a person without a warrant.
That means they have to convince them that they are arrested. She
doesn't believe they can pull their sidearm without violating the
unlawful use of deadly force, unless that person is threatening
them in some way. She can't imagine anybody arresting somebody
without some power to overcome them, either physically or with a
gun, and it seems like the law is clear that they can't do that
unless their life is being threatened. She asked Sergeant Hudson
to respond to that.
SERGEANT HUDSON said he didn't understand exactly what she is
asking, other than the fact that he believes the law allows during
the making of an arrest, to utilize reasonable force. If they
could legally make an arrest, then they could use whatever would be
the justifiable minimum force. He assumes that if a bounty hunter
or citizen had a legitimate reason to make an arrest, then they
could utilize a level of justifiable force up to the level needed
to make that arrest. It is not appropriate for a citizen or a law
enforcement officer to start waving firearms around and assaulting
people, even during an arrest, unless that level of force is
justified.
REPRESENTATIVE JAMES mentioned a case where someone was up on a
ladder trying to steal something, and the homeowner took away the
ladder and held the person at gunpoint until the police came.
SERGEANT HUDSON said it is not uncommon in Alaska for the citizens
to apprehend individuals burglarizing their homes or stealing their
property and utilizing such methods.
Number 1348
CORY WINCHELL, Administrative Assistant to Representative Pete
Kott, Alaska State Legislature, appreciates the bill and is not
making a position on it. The majority of the bounty hunters going
after these people have a contract. They have been bailed out for
serious crimes, hardcore felony crimes. They actually go in, they
have been taken into custody, and they bond out. They sign a
contract that basically says if I'm not showing up for these things
you have the right to go into my house, the people that come in and
sign for them actually say you can come into my house to find him
if you need to if he doesn't show up. By that contract it is
spelled out, we have been doing a bail type system since the
country's inception. All of them are those types of contracts and
then the bounty hunters actually are attached to or are employees
to for the companies that do the bailing. You have a contract down
and say I promise to pay you guys 10 percent of this or x amount,
we're going to bail you out at ten percent of this and you are
going to show up for every single one of your hearings and if you
don't, we are going to chase you down. Officer Hudson did talk
about cross-jurisdictional boundaries. They are basically
enforcing a contract and the situations do get sticky. If he can
argue on behalf of Representative Dyson, there was an occurrence in
Arizona where someone actually kicked down the wrong door and there
was killing that occurred. They killed innocent people. So
accidents do occur. However, by enacting this bill they are going
to making substantial inroads into the bail system. It is by
contract that they do these things for the most part. He doesn't
know any posses that say "Hey, let's go find us some felons and
make some arrests because we can under an 1800s statutes." It is
a contractual basis, a bail bonding basis and one concern is the
misdemeanors. Police officers perhaps won't have the time, the
energy, the gumption, practically speaking, if they force the
policeman to go out and execute warrants, even if these folks are
bailed out on misdemeanor charges, practically is just might not
happen. He spoke to Representative Dyson for amendments to placing
a registration in regard to bounty hunters, getting into their
background, history and ensuring that they are not psychopaths, and
the second thing is for any felony warrants that they are actually
executing that they contact local law enforcement, that they make
it mandatory by statute, as to the time, whether they are under
contract to go into that house, to ensure that the contract is
being complied with on both ends and/or to ask for backup or have
the police do it on the more serious felony levels.
REPRESENTATIVE GREEN asked whether Mr. Winchell was saying if this
is passed that the cost of bail bonding will go up or that there
will be people who will no longer serve as bail bondsmen.
MR. WINCHELL answered no. He said under Washington's system, the
courts themselves can offer bonding arrangements so it can be
incorporated back into the court, and perhaps that is the flavor of
where the law is going. They want the courts to do it and not
private individuals. He was only suggesting that if they can't
private bounty hunters for bail bonding agents under contract and
if they require policemen in general to do it, they might have bail
bonding agencies that are not willing to bond out on the smaller
measures because they know they are going to fly and perhaps law
enforcement can get to it. They have more pressing issues. There
will be a burden on that. There is a contract involved; they know
if they skip or run that someone will chase them.
REPRESENTATIVE GREEN asked, if the bounty hunters were to register,
would that go so far down the road that they might as well allow
the peace officer to go get them rather than the bounty hunter.
MR. WINCHELL answered yes they have taken the felonies and placed
them into the police officer's arms and notable so in the case of
felonies.
REPRESENTATIVE MURKOWSKI asked Mr. Winchell if Washington had a
registration for bounty hunters.
MR. WINCHELL said he was associated with one of the bail bonding
agencies and they would go after unclassified. Whether they were
registered or not, he didn't have to put that within the purview.
He linked on as an associate. He was not registered, but he
doesn't know if they were or not. On the weapon's issue, he does
have a concealed weapon in Washington and can carry it.
Number 1747
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage
saying they support the legislation. It is better to leave this
type of thing to professional law enforcement people. He wonders
whether the statute conditions of release on the amendment should
be AS 12.30.020 rather than AS 12.30.030. He had a question on the
type of force allowed in making arrest or terminating his case,
that is found in the justification statutes AS 11.81.390. It is
important to note that they can use non-deadly force in making
arrests that have occurred in their presence, but deadly force
should only be used where there is a felony against the person or
involving use of force against the person involving a firearm.
There have been cases of someone making a citizen's arrest on minor
vandalism and being charged with assault in that situation and not
have a justification defense.
CHAIRMAN KOTT noted that they do have an amendment to replace AS
12.30.030 with AS 12.30.020.
MR. McCUNE wondered if the words "conditions of release" referred
to the conditions of release that are set by the judicial officer
and those are usually in AS 12.30.020.
MS. TORKELSON told them that Legislative Legal and Research
Services explained to her that the portion on page 4, line 7, that
is taken out 12.25.030(b), they moved (b) to (a), therefore it
should read 12.25.030. It was a typographical error.
Number 1990
REPRESENTATIVE JAMES made a motion to adopt Amendment 1, which
reads as follows:
Page 4, following line 7:
Insert a new bill section to read:
"* Section 3. AS 12.70.130 is amended to read:
Sec. 12.70.130. Arrest without warrant. The arrest of a
person may also be lawfully made by a peace officer [OR A
PRIVATE PERSON] without a warrant upon reasonable information
that the accused stands charged in the courts of another state
with a crime punishable by death or imprisonment for a term
exceeding one year, When [,but when] arrested, the accused
must be taken before a judge or magistrate without unnecessary
delay and, in any event, within 24 hours after arrest,
including Sundays and holidays. A [, AND] complaint shall be
made against the accused under oath setting out the ground for
the arrest as in AS 12.70.120. Thereafter, the answer of the
accused shall be heard as if the accused had been arrested on
a warrant."
REPRESENTATIVE GREEN objected for discussion purposes. He noted
that the amendment says Section 3, and he believes it should be
Section 6.
CHAIRMAN KOTT agreed that it should read Section 6. With that
change noted, he asked whether there was any objection. There
being none, Amendment 1 was so adopted.
Number 2024
REPRESENTATIVE JAMES made a motion to move Amendment 2, which reads
as follows:
Page 4, Line 7
Delete "AS 12.30.030"
Add "AS 12.25.030"
CHAIRMAN KOTT asked whether there is any objection. There being
none, Amendment 2 was so adopted.
Number 2042
REPRESENTATIVE CROFT said they have dealt with the bounty hunter
issue to his satisfaction, but he is still struggling with the
change in the authority of a private person to do something. He
noted that it is a fairly significant change in the law that a
private person cannot arrest somebody who committed a felony unless
it was done in his presence. For example, somebody breaks into his
house, he gets home and the person is outside on the street, his
wife says "That is the one," and now he is limited to calling the
police. It may be what they want to do, but he would like more
discussion on that issue.
REPRESENTATIVE DYSON responded to Representative Croft that his
wife could make the arrest with his assistance. As long as
somebody who witnessed the crime was there, he/she is the one
technically making the arrest. They don't want people without any
knowledge of the crime doing it.
REPRESENTATIVE JAMES made a motion to move SSHB 33, Version
1-LSO240\D, as amended, from the committee with individual
recommendations and the attached zero fiscal note(s). There being
no objection, CSSSHB 33(JUD) was so moved from the House Judiciary
Standing Committee.
ADJOURNMENT
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 3:38 p.m.
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