Legislature(1999 - 2000)
05/14/1999 01:40 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
May 14, 1999
1:40 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
SENATE BILL NO. 130
"An Act relating to immunity for sale or transfer of a firearm;
relating to administrative functions performed by and fees charged
by the Department of Public Safety for transfer of a firearm."
- HEARD AND HELD
SENATE JOINT RESOLUTION NO. 25
Relating to voluntary school prayer.
- MOVED HCSSJR 25(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 100(FIN)
"An Act relating to the payment by indigent persons for legal
services and related costs."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: SB 130
SHORT TITLE: FEES/IMMUNITY SALE/TRANSFER OF FIREARMS
SPONSOR(S): SENATOR(S) KELLY PETE, Taylor; REPRESENTATIVE(S) Ogan
Jrn-Date Jrn-Page Action
4/01/99 770 (S) READ THE FIRST TIME - REFERRAL(S)
4/01/99 770 (S) JUD, FIN
4/06/99 796 (S) COSPONSOR(S): TAYLOR
4/06/99 796 (S) JUD REFERRAL WAIVED
5/06/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
5/06/99 (S) REPORTED OUT
5/06/99 (S) RLS AT 2:15 PM FAHRENKAMP 203
5/06/99 (S) MINUTE(FIN)
5/06/99 (S) MINUTE(RLS)
5/06/99 1270 (S) FIN RPT 4DP 1DNP 3NR 1AM
5/06/99 1270 (S) DP: TORGERSON, PETE KELLY, DONLEY,
5/06/99 1270 (S) LEMAN; NR: PARNELL, PHILLIPS, WILKEN
5/06/99 1270 (S) DNP: ADAMS; AM: GREEN
5/06/99 1271 (S) ZERO FISCAL NOTES (LAW, DPS)
5/10/99 1324 (S) RULES TO CALENDAR AND 1 OR 5/10/99
5/10/99 1326 (S) READ THE SECOND TIME
5/10/99 1326 (S) ADVANCED TO THIRD READING UNAN
CONSENT
5/10/99 1326 (S) READ THE THIRD TIME SB 130
5/10/99 1326 (S) PASSED Y14 N5 A1
5/10/99 1326 (S) ELLIS NOTICE OF RECONSIDERATION
5/11/99 1372 (S) RECONSIDERATION NOT TAKEN UP
5/11/99 1373 (S) TRANSMITTED TO (H)
5/12/99 1338 (H) READ THE FIRST TIME - REFERRAL(S)
5/12/99 1338 (H) JUDICIARY
5/14/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SJR 25
SHORT TITLE: VOLUNTARY SCHOOL PRAYER
SPONSOR(S): SENATOR(S) WARD, Halford, Taylor, Mackie, Pearce,
Green, Wilken, Parnell; REPRESENTATIVE(S) Green, Ogan, Kohring,
Harris, Dyson
Jrn-Date Jrn-Page Action
4/22/99 1039 (S) READ THE FIRST TIME - REFERRAL(S)
4/22/99 1039 (S) JUD
4/26/99 (S) JUD AT 1:30 PM BELTZ 211
4/28/99 (S) JUD AT 1:30 PM BELTZ 211
5/03/99 (S) JUD AT 1:30 PM BELTZ 211
5/03/99 (S) MINUTE(JUD)
5/05/99 (S) RLS AT 12:50 PM FAHRENKAMP 203
5/05/99 (S) MINUTE(RLS)
5/05/99 1248 (S) JUD RPT 2DP 2NR
5/05/99 1248 (S) DP: TAYLOR, HALFORD; NR: DONLEY,
ELLIS
5/05/99 1248 (S) ZERO FISCAL NOTE (S.JUD)
5/05/99 1261 (S) COSPONSOR(S): TAYLOR
5/06/99 1271 (S) RULES TO CALENDAR AND 1 OR 5/6/99
5/06/99 1273 (S) READ THE SECOND TIME
5/06/99 1273 (S) COSPONSOR(S): MACKIE, PEARCE, GREEN,
5/06/99 1273 (S) WILKEN, PARNELL
5/06/99 1273 (S) ADVANCED TO THIRD READING UNAN
CONSENT
5/06/99 1273 (S) READ THE THIRD TIME SJR 25
5/06/99 1273 (S) PASSED Y16 N4
5/06/99 1281 (S) TRANSMITTED TO (H)
5/07/99 1221 (H) READ THE FIRST TIME - REFERRAL(S)
5/07/99 1221 (H) JUDICIARY
5/13/99 (H) JUD AT 1:00 PM CAPITOL 120
5/13/99 (H) MEETING CANCELED
5/14/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 100
SHORT TITLE: REIMBURSEMENT FOR PUBLIC DEFENDER
SPONSOR(S): JUDICIARY BY REQUEST
Jrn-Date Jrn-Page Action
3/11/99 476 (S) READ THE FIRST TIME - REFERRAL(S)
3/11/99 476 (S) JUD
3/15/99 (S) JUD AT 1:30 PM BELTZ 211
3/15/99 (S) HEARD AND HELD
3/15/99 (S) MINUTE(JUD)
3/17/99 (S) JUD AT 1:30 PM BELTZ 211
3/17/99 (S) MOVED CS (JUD) OUT OF COMMITTEE
3/17/99 (S) MINUTE(JUD)
3/18/99 599 (S) JUD RPT CS 3DP SAME TITLE
3/18/99 599 (S) DP: TAYLOR, TORGERSON, DONLEY
3/18/99 599 (S) ZERO FISCAL NOTE (COURT)
3/18/99 599 (S) FISCAL NOTE (LAW)
3/19/99 616 (S) FISCAL NOTE (LAW)
3/18/99 599 (S) ADDITIONAL REFERRAL TO FIN
3/30/99 (S) FIN AT 8:00 AM SENATE FINANCE 532
3/30/99 (S) SCHEDULED BUT NOT HEARD
4/01/99 (S) FIN AT 8:00 AM SENATE FINANCE 532
4/01/99 768 (S) FIN RPT CS 5DP 2NR SAME TITLE
4/01/99 768 (S) DP: TORGERSON, GREEN, WILKEN, LEMAN,
4/01/99 768 (S) DONLEY; NR: PARNELL, PETE KELLY
4/01/99 768 (S) PREVIOUS ZERO FN FIN CS (COURT)
4/06/99 (S) RLS AT 3:30 PM FAHRENKAMP 203
4/06/99 (S) MINUTE(RLS)
4/06/99 794 (S) FISCAL NOTE FIN CS (LAW)
4/19/99 966 (S) RULES TO CALENDAR AND 1 OR 4/19/99
4/19/99 967 (S) READ THE SECOND TIME
4/19/99 967 (S) FIN CS ADOPTED UNAN CONSENT
4/19/99 967 (S) ADVANCED TO THIRD READING UNAN
CONSENT
4/19/99 967 (S) READ THE THIRD TIME CSSB 100(FIN)
4/19/99 968 (S) PASSED Y12 N8
4/19/99 968 (S) ELLIS NOTICE OF RECONSIDERATION
4/21/99 993 (S) RECON TAKEN UP - IN THIRD READING
4/21/99 993 (S) PASSED ON RECONSIDERATION Y12 N8
4/21/99 1028 (S) TRANSMITTED TO (H)
4/22/99 908 (H) READ THE FIRST TIME - REFERRAL(S)
4/22/99 908 (H) JUD, FIN
5/14/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
VICTOR GUNN, Legislative Administrative Assistant
to Senator Pete Kelly
Alaska State Legislature
Capitol Building, Room 510
Juneau, Alaska 99801
Telephone: (907) 465-2327
POSITION STATEMENT: Presented SB 130 on behalf of the bill
sponsor, Senator Pete Kelly.
CHRIS STOCKARD, Captain
Department of Public Safety
Alaska State Trooper
450 Whittier Street
Juneau, Alaska 99801
Telephone: (907) 465-4306
POSITION STATEMENT: Discussed concerns of DPS with regard to
SB 130.
NOEL NAPOLILLI
Class 3 firearm Collector
251 Napolilli Lane
Fairbanks, Alaska 99712
Telephone: (907) 457-8418
POSITION STATEMENT: Discussed the situation in Fairbanks.
MARK HODGINS, Legislative Assistant
to Senator Jerry Ward
Alaska State Legislature
Capitol Building, Room 423
Juneau, Alaska 99801
Telephone: (907) 465-4522
POSITION STATEMENT: Presented SJR 25 on behalf of the bill sponsor.
REPRESENTATIVE JERRY SANDERS
Alaska State Legislature
Capitol Building, Room 414
Juneau, Alaska 99801
Telephone: (907) 465-4945
POSITION STATEMENT: Testified on SJR 25.
DOUG WOOLIVER, Administrative Attorney
Office of the Administrative Director
Alaska Court System
820 West Fourth Avenue
Anchorage, Alaska 99501-2005
Telephone: (907) 264-8265
POSITION STATEMENT: Testified on CSSB 100(FIN), suggested
amendment.
WALTER MAJOROS, Executive Director
Alaska Mental Health Board
Department of Health and Social Services
431 North Franklin Street
Juneau, Alaska 99801
Telephone: (907) 465-3072
POSITION STATEMENT: Testified regarding potential adverse effects
of CSSB 100(FIN) on people with mental illnesses.
ROBERT BUTTCANE, Administrative Juvenile Probation Officer
Youth Corrections State Central Office
Division of Family and Youth Services
Department of Health and Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-3228
POSITION STATEMENT: Testified regarding departmental concerns with
CSSB 100(FIN).
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
P.O. Box 201844
Anchorage, Alaska 99520
Telephone: (907) 258-0044
POSITION STATEMENT: Testified in opposition to SB 100.
BLAIR McCUNE, Deputy Director
Public Defender Agency
Department of Administration
900 West Fifth Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on SB 100.
ACTION NARRATIVE
TAPE 99-69, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:40 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg, Murkowski and Kerttula.
Representatives Croft and James arrived at 1:59 p.m. and 2:48 p.m.,
respectively.
SB 130 - FEES/IMMUNITY SALE/TRANSFER OF FIREARMS
CHAIRMAN KOTT announced the first order of business is SB 130, "An
Act relating to immunity for sale or transfer of a firearm;
relating to administrative functions performed by and fees charged
by the Department of Public Safety for transfer of a firearm."
Number 0050
VICTOR GUNN, Legislative Administrative Assistant to Senator Pete
Kelly, Alaska State Legislature, testified on behalf of the
sponsor. He informed the committee that there are regulations for
the U.S. Bureau of Alcohol, Tobacco, and Firearms (BATF) which
require local chief law enforcement officers to sign certifications
on federal tax forms one, four and five before BATF will approve
the transfer of National Firearms Act (NFA) firearms to
individuals. This is required in Sections 58.12 and 58.22 of the
Internal Revenue Service (IRS) code of 1984 and Sections 58.12 and
58.22 of the NFA of 1934 as amended. Both provisions contain
almost identical last sentences: "Applications shall be denied if
the transfer, receipt, or possession would place the transferee in
violation of law." A researcher in this field has stated that
language creates monster regulation abdicating BATF's federal legal
responsibility to collect federal taxes and enforce federal law to
thousands of local officials. Mr. Gunn informed the committee that
in the past two decades some Alaskan chief law enforcement officers
have refused to sign the tranferee's tax form. Frequently, these
officers cite liability and an unfunded federal mandate as the
reasoning behind not signing the transferee's tax form. The
concern of liability is derived from the language utilized for the
chief law enforcement officer on page 2 of the forms. That
language says: "I have no information indicating that the
transferee will use the firearm or the device described on this
application for other than lawful purposes. I have no information
that the receipt and/or possession described in item 4 of this form
would place the transferee in violation of state or local law."
Some of the chief law enforcement officers feel that such language
would place them in a liable situation if the transferee used the
firearm in an illegal manner anytime in the future. Mr. Gunn noted
that his research had not found an occurrence of legally
transferred NFA firearms committing any violent crime with the
firearm since the 1930s. The officers claim that this is an
unfunded federal mandate because BATF abdicates its authority to
local officials.
MR. GUNN pointed out that each firearm transfer requires a
submittal of fingerprints and a recent photo to BATF. Aside from
the high purchase price of NFA regulated firearms, the applicant
pays a tax of up to $200 per transfer. Furthermore, many of the
Alaskan applicants also applied for and received concealed and
carry weapon permits for which there is much scrutiny. He
indicated that thess are not criminal types purchasing these
firearms.
MR. GUNN stated that the certification requirement in essence
allows local officials to veto a federal right. This legislation,
SB 130, is before the committee at the request of Alaskans who have
applied for the lawful transfer of a NFA firearm, but have found
resistance due to concerns from law enforcement. This legislation
would address liability and unfunded mandate complaints. Mr. Gunn
informed the committee that it is estimated that there will be less
than 50 transfers per year statewide. He acknowledged the
Department of Public Safety's (DPS) concern that SB 130 would
create more work in a time of fiscal constraint. Mr. Gunn, as a
former Fairbanks Chief Law Enforcement Officer, recalled that in
his final two years as such there were only two requests for
signatures for NFA firearms which isn't a tremendous amount. He
pointed out that the DPS and the Department of Law have submitted
zero fiscal notes. This bill provides for a reasonable fee.
Furthermore, he suggested that the scrutiny following a concealed
carry weapon (CCW) permit issuance, which requires fingerprints and
photos and a background check, should be sufficient. If some time
has elapsed, then a check of the National Crime Information Center
and the Alaska Judicial Information System should reveal any recent
nonqualifying activity as is performed when a CCW permit is
renewed. He also reminded the committee of Article I, Section 19
of the Alaska State Constitution as amended in 1994 which states,
"The individual right to keep and bear arms shall not be denied or
infringed by the state or political subdivision of the state."
CHAIRMAN KOTT inquired as to whether Mr. Gunn, when Fairbanks
Chief, honored or rejected the two requests he mentioned.
MR. GUNN answered that those requests were honored.
Number 0534
REPRESENTATIVE GREEN inquired as to examples of the weapons being
referenced here.
MR. GUNN clarified that NFA firearms are also Title 2 firearms
which include firearms that can fire fully automatic, silencers,
sawed-off shotguns, and destructive devices. He noted that
currently, there is a finite number of such firearms and they are
all registered by the federal government. Basically, these
firearms are traded amongst collectors who can afford them.
Although Mr. Gunn understood DPS's position regarding the unfunded
federal mandate, he also realized that could not be changed in the
near future. The congressional delegation is aware of this. He
explained that this legislation only attempts to alleviate the
current situation in which firearms have been legally purchased,
but possession cannot be taken due to the inability to obtain a
signature from law enforcement.
REPRESENTATIVE GREEN asked whether Mr. Gunn felt that the checks
for the CCW firearms was adequate for the use of an automatic
weapon. He also asked if those checks were federal or state?
MR. GUNN explained that the federal government, BATF, obtains the
fingerprints and the photo which has nothing to do with the
signature block. Every time there is a transfer that occurs as
well as paying the tax.
REPRESENTATIVE GREEN inquired as to whether Mr. Gunn felt that
removal of liability would create a situation in which chief law
enforcement officers provide carte blanch signatures.
MR. GUNN replied no.
Number 0852
REPRESENTATIVE MURKOWSKI understood that these forms being
referenced are standard across the nation. She asked if other
states are having similar difficulty in obtaining signatures. If
so, what are those states doing to address the situation?
MR. GUNN commented that some states have had problems similar to
those in Alaska. Usually, the problem exists in a specific
jurisdiction. Mr. Gunn emphasized that this would not require the
signature, but would simply remedy the complaints surrounding these
transfers.
REPRESENTATIVE MURKOWSKI asked if other states are granting
immunity for the sale or transfer of such firearms.
MR. GUNN responded yes and noted that in some states it is entirely
illegal to own such firearms.
REPRESENTATIVE ROKEBERG inquired as to what federal tax forms one,
four and five cover. He indicated the need for the committee
packet to include a description of each.
MR. GUNN agreed to do so. He explained that form four is regarding
a transfer from a dealer to an individual. Form one is regarding
the tax paid for the construction of such a firearm. Form five
deals with the situation in which a government sells a registered
NFA weapon to an individual.
Number 1092
CHAIRMAN KOTT inquired as to the general trend of chief law
enforcement officers in Alaska with regard to signing the forms.
MR. GUNN informed the committee that two chiefs on the Kenai
Peninsula are signing these forms. The Anchorage Chief of Police
and the DPS designated officials, per the commissioner's decision,
are not signing these forms. He pointed out that chief law
enforcement officers can include a district attorney, and a judge.
Although this is a federal form, federal law enforcement officers
who are the most appropriate people to sign will not sign these
forms. That problem can't be addressed.
CHAIRMAN KOTT asked if DPS would fulfill this requirement in those
communities with Village Public Safety Officers.
MR. GUNN said that the requirement would fall to whomever the
commissioner would designate for that area. Generally, the person
in charge of a trooper district would be the designated signer.
REPRESENTATIVE MURKOWSKI indicated the need to hear from some of
the police chiefs with regard to why they aren't signing these
forms and if in fact, SB 130 would make a difference.
REPRESENTATIVE CROFT referred to the "shall" language on page 1,
lines 13-14 and understood that language to mean that DPS wasn't
required to sign the form.
MR. GUNN agreed that the language does not require the signature.
REPRESENTATIVE CROFT expressed concern that the "shall" language
would be interpreted to mean that DPS is required to sign. He
inquired as to where SB 130 or another part of the law that says
DPS may or may not sign.
MR. GUNN could not answer.
Number 1390
CHRIS STOCKARD, Captain, Department of Public Safety, Alaska State
Trooper, informed the committee that he was assigned to the
Commissioner's office. He believed that Mr. Gunn summed up DPS's
position fairly well. It is the belief of DPS that this is a
federal responsibility. He agreed with Chairman Kott that
currently, DPS is not signing these forms. The department's
concerns stem partially from the liability issue in that the form
nor regulations specify the extent to which the local law
enforcement goes to obtain its knowledge that this applicant won't
commit an unlawful act. Therefore, the concern surrounding what is
really being signed for is a major issue. Secondly, this is a
federal job.
CHAIRMAN KOTT surmised then that even if the civil liability is
remedied, the department still maintains that the federal
government should do this. If the federal government says they
won't, and Alaska's constitution provides for the right to keep and
bear arms; where is the middle ground?
MR. STOCKARD said that the current policy is that DPS isn't
authorized to sign these forms. The department would prefer local
officials with better knowledge of their local areas to sign, if
they want to sign.
REPRESENTATIVE CROFT identified the operative phrase as the one
reading, "I certify that ... I have no knowledge indicating that
the transferee will use the firearm or device described in the
application other than lawful purposes. I have no information that
the receipt or possession of firearms will place the transferee in
violation of state or local law." He asked if the crux of the
matter is with regard to how much investigation is required before
signing?
MR. STOCKARD agreed.
REPRESENTATIVE CROFT said that there should be some standards. He
believed the best solution to be to rewrite the form, but since
this is a federal form that will probably not occur.
REPRESENTATIVE GREEN wondered if the signature giving the state
immunity would sign away liability.
REPRESENTATIVE KERTTULA commented that there might be sovereign
immunity, but with SB 130 there would be a problem. However, she
was not sure.
REPRESENTATIVE CROFT pointed out that this is a 1934 law. That was
perhaps, a time when the chief of police of a small town could make
this type of declaration. Today, this doesn't seem appropriate.
Number 1786
NOEL NAPOLILLI, 28 year veteran of the Fairbanks School District,
informed the committee that he has published many articles on the
historical application of Class 3 firearms for which he was a
dealer and currently, a collector. He pointed out that the concern
that a person could walk off the street, receive a signature for a
Class 3 firearm, and take it home that day is erroneous due to the
lengthy application and background check procedures. Furthermore,
Mr. Napolilli noted that he is unable to purchase more Class 3
firearms because he resides out of the city limits and has no one
who can sign. There are many in Fairbanks' city limits who
purchased Class 3 firearms when the troopers were signing. The
firearms were placed in the possession of the Class 3 dealers, but
the policy had changed, the troopers stopped signing. Therefore,
the firearms can't be transferred from the dealer. This is an
unfair situation which needs remedy. This legislation would be a
good solution.
CHAIRMAN KOTT asked if there were others who wished to testify in
Fairbanks. There being no one, Chairman Kott closed public
testimony.
CHAIRMAN KOTT surmised that there is nothing in SB 130 which would
mandate DPS or its troopers to sign these forms.
MR. GUNN said that was his understanding. He offered to provide
the committee with a copy of a letter citing that liability is the
reason the Anchorage Chief of Police is not signing these forms.
CHAIRMAN KOTT pointed out that passage of SB 130 could result in
nothing changing.
MR. GUNN agreed.
CHAIRMAN KOTT understood that if the department feels that there is
a liability issue and this is a federal issue, Mr. Napolilli would
still be unable to purchase such a firearm.
MR. GUNN informed the committee that he and Commissioner Smith,
DPS, agree that this should be a federal responsibility, but it is
not going to happen. With regard to Representative Croft's
comments that the CCW standards could be utilized, that was
reviewed. However, that seemed too stringent for the chief law
enforcement officer. Mr. Gunn said that the sponsor would be
amenable to including that in the language if it is the will of the
legislature.
Number 2105
CHAIRMAN KOTT asked if, in addition to the $200 federal fee,
fingerprinting, photo, and background check, the desire is for the
development of a statewide investigative system.
MR. GUNN clarified that the problem is that the transfer can't be
completed without the signature on the tax form.
REPRESENTATIVE CROFT said that he believed that police shouldn't
have a duty to investigate or the parameters should be clearly
specified. This legislation is blanket immunity.
MR. GUNN interjected that he invested 24 years in law enforcement
and wouldn't have thrown that away by signing one these forms for
someone to go out and commit a violent act with a known registered,
heavily regulated firearm. Furthermore, he didn't know any
individual who would do so.
REPRESENTATIVE CROFT commented that there is not the desire to
immunize the odd case where civil consequences would be
appropriate. Also there is the need to pen laws that make sense.
REPRESENTATIVE GREEN indicated the need for language to be inserted
in SB 130 to say that the chief law enforcement officer has
certified something similar to the qualifications for the CCW.
MR. GUNN interjected that the form, et cetera goes to the federal
government upon which the federal investigation begins.
REPRESENTATIVE GREEN suggested that his recommendation would
alleviate Representative Croft's concerns. The signature would
qualify for immunity because proactive action has been taken by the
individual to have these firearms transferred and the chief officer
has seen that was done.
MR. GUNN said that was how the bill was originally going to be
written. However, discussions with Deputy Commissioner Smith
resulted in the legislation being kept simple and avoiding use of
"shall" language. Mr. Gunn agreed with Representative Green and
Representative Croft's comments. The sponsor would be happy to
have a conceptual amendment to that effect.
REPRESENTATIVE CROFT asked Mr. Napolilli if he had a CCW permit.
MR. NAPOLILLI replied yes.
REPRESENTATIVE GREEN inquired as to Mr. Napolilli's opinion of
having the chief officer sign off on the individual having
accomplished a list of requirements similar to the CCW
requirements.
MR. NAPOLILLI understood Representative Green to mean that a person
with a CCW permit would be acceptable proof of being able to own
the Class 3 weapon and the law enforcement officer would be more
comfortable with signing. He didn't believe the general public
would have any problems with that.
REPRESENTATIVE GREEN commented that he didn't want to inhibit
anyone like Mr. Napolilli, a collector.
TAPE 99-69, SIDE B
MR. NAPOLILLI reiterated that he didn't believe that any of the
individuals he knew, who were interested in purchasing Class 3
firearms, would have any difficulty with purchasing a CCW permit.
Number 0028
REPRESENTATIVE MURKOWSKI understood Mr. Napolilli to say that the
federal government has been asked to change the form, but they have
refused to do so. What is the reason given for not changing?
MR. NAPOLILLI said that he understood the federal government's
rationale. The federal government does a thorough background
investigation for each person who applies. The federal government
wanted to receive knowledge from the local officials with regard to
those individuals who don't have a record, but may be a known
habitual drunkard or drug dealer, for instance. The desire was for
the local law enforcement to be able to stop the process, by not
signing the form, before there was an FBI background investigation.
CHAIRMAN KOTT closed the public testimony again. He noted that
there has been substantial discussion regarding whether to insert
language into SB 130 which is similar to the language in the CCW
law.
Number 0125
REPRESENTATIVE GREEN offered the following conceptual amendment:
Page , line 11, after "execute", insert language to the effect of
"if the transferee provides evidence of having a valid CCW permit."
He pondered as to whether that would encourage an officer to sign
the form.
REPRESENTATIVE CROFT said that he believed that would meet the
first sentence in the signature block, but was concerned that it
may not accommodate the second sentence.
The took an at-ease from 2:31 p.m. to 2:40 p.m.
CHAIRMAN KOTT announced that SB 130 would be held in order for the
committee to ponder language suggestions and speak with law
enforcement officials.
SJR 25 - VOLUNTARY SCHOOL PRAYER
CHAIRMAN KOTT announced the next order of business is SJR 25,
"Relating to voluntary school prayer."
CHAIRMAN KOTT noted the presence of Representative Sanders.
CHAIRMAN KOTT indicated the resolution, if passed, would be sent to
Alaska's congressional delegation.
Number 0232
MARK HODGINS, Legislative Assistant to Senator Jerry Ward, Alaska
State Legislature, came forward on behalf of the prime sponsor.
Senate Joint Resolution 25 would send a message to Congress that
the State of Alaska has ratified, and agrees to, the article to the
Constitution of the United States. He explained that 38 states
would have to ratify this over the next seven years, from January
6, 1999 in order for the Article to become part of the
Constitution. Ratification would allow voluntary prayer in schools
as was exercised freely under the Constitution until the 1960s when
the U.S. Supreme Court ruled to the contrary. Mr. Hodgins noted
the amendment to the constitution, in the form of an Article, would
read:
Nothing in this Constitution shall be construed to
prohibit individual or group prayer in public schools or
other public institutions. No person shall be required
by the United States or by any State to participate in
prayer. Neither the United States nor any State shall
prescribe the content of any such prayer.
MR. HODGINS indicated passage of SJR 25 would send the Alaska State
Legislature's concurrence to Congress. Hopefully, 37 other states
would also do so and this would become an Article of the
Constitution. Mr. Hodgins noted that Representative Sanders wished
to speak on the resolution.
CHAIRMAN KOTT questioned if there was a current initiative or
amendment to the Constitution in Congress.
MR. HODGINS replied yes. He informed the committee that HJR 7
proposes an amendment to the Constitution relating to voluntary
school prayer in the House of Representatives dated January 6,
1999. If that is ratified by three-quarters of the states within
seven years of January 6, 1999, it would move forward. In further
response to Chairman Kott, he said that Ms. Emmerson introduced the
joint resolution. Mr. Hodgins noted that none of Alaska's
Congressional delegation had signed onto this resolution.
REPRESENTATIVE MURKOWSKI expressed the need to read SJR 1 and HJR
7, if this resolution would urge their adoption by Congress.
MR. HODGINS indicated that copies could be provided.
REPRESENTATIVE CROFT understood that nothing has passed Congress
yet.
CHAIRMAN KOTT explained that the initial hurtle of its passage, a
two-thirds vote, in Congress is still pending. After passage, it
would go to the states where it would require three-quarters vote
and then ratification.
Number 0452
REPRESENTATIVE DYSON requested that the status of the resolution be
confirmed.
REPRESENTATIVE MURKOWSKI asked if the congressional resolutions,
SJR 1 and HJR 7 are identical.
MR. HODGINS indicated they are identical.
REPRESENTATIVE MURKOWSKI referred to the second "WHEREAS" and asked
if there are numbers supporting that people want a constitutional
amendment versus just being able to have voluntary prayer in
school.
MR. HODGINS said that he didn't have the actual numbers
furthermore, he wasn't sure that there has been an actual
referendum on that. However, there has been a tremendous amount of
support across America to return voluntary prayer in schools. He
pointed out that there is much reference to God, a single deity,
within government and social structure.
REPRESENTATIVE MURKOWSKI expressed the need to ensure that the
language is accurate in saying that a "vast majority" support a
constitutional amendment allowing such.
MR. HODGINS reiterated that he didn't have the actual figures. He
noted that generally, these resolutions for federal action are
similar in composure in order to send the same message to all
legislatures.
Number 0622
CHAIRMAN KOTT indicated agreement with Representative Murkowski
that the statement seems rather factual. Is there information
suggesting that the majority of Alaskans, representing the majority
of all political parties, support voluntary prayer in schools?
MR. HODGINS reiterated that he didn't know if there has been a
referendum in Alaska on this issue. However, it is safe to say
that there is a strong belief that there is a vast majority of
Americans subscribing to a voluntary moment of prayer.
CHAIRMAN KOTT said that he was having difficulty with the language,
"vast majority."
REPRESENTATIVE JAMES said that she believed there is a large
majority of support for voluntary prayer in schools.
MR. HODGINS commented that he didn't know of any organized group
against voluntary prayer.
REPRESENTATIVE GREEN asked if, in order to circumvent this problem,
there would be any merit to moving lines 5-6 between lines 11-12 so
that it would read, "WHEREAS the Alaska State Legislature favors a
constitutional amendment".
CHAIRMAN KOTT indicated that would be more appropriate.
REPRESENTATIVE MURKOWSKI agreed that a statement of fact can't be
made without knowing what our basis for the fact is. She said she
would be far more comfortable eliminating the language "vast
majority" and speaking only in terms of Alaskans.
REPRESENTATIVE JAMES pointed out that the resolution says
"voluntary prayer," although she understood that the majority of
folks would want voluntary silent prayer. One of the big
objections to prayer in school is the verbalization of the prayer.
Therefore, she would be more supportive for voluntary silent
prayer.
REPRESENTATIVE ROKEBERG said that he was also concerned with the
second "WHEREAS." The language should speak to Alaskans and there
shouldn't be any reference to political parties. Representative
Rokeberg suggested that the committee adopt the Article language or
something similar in order to illustrate what people are voting
for.
CHAIRMAN KOTT suspected that a copy of both the resolutions would
be attached to this resolution for any floor debate.
REPRESENTATIVE MURKOWSKI explained that if Congress is urged to
adopt this, the two resolutions are specific to prayer and don't
allow for a moment of silence.
Number 1088
REPRESENTATIVE SANDERS, Alaska State Legislature, informed the
committee that he had a companion bill to SJR 25 which he hasn't
moved. He explained that SJR 25 merely asks that nothing in the
Constitution can be construed to prohibit individual or group
prayer in public schools or other public institutions. No person
shall be required by any state or the United States to participate
in prayer. Nor shall either prescribe the content of any prayer.
REPRESENTATIVE SANDERS recalled that someone said that there are no
atheists in foxholes which is what our schools are beginning to
look like. This is the direct result of a misguided decision over
40 years ago. The result has been the breakdown of the moral and
social fiber. In the last few weeks, Representative Sanders has
been impressed that every single Columbine High School student
interviewed has freely admitted to praying for their safety.
However, he is vigilant for the American Civil Liberties Union
(ACLU) or some attorney to file charges against those admitting to
prayer in the Columbine High School Library because it is a crime
under the current interpretation of the Constitution.
REPRESENTATIVE SANDERS also recalled that Governor Knowles had
recently said, "We must pray for our children." He agreed with the
Governor, but indicated the need to teach our children to pray for
themselves. A civilized society is supported by family, church and
school. Prayer should be encouraged in all areas. In conclusion,
he noted that no clergy are present.
CHAIRMAN KOTT closed public testimony.
REPRESENTATIVE MURKOWSKI pointed out that the problem with the
second "WHEREAS" wasn't resolved.
Number 1493
CHAIRMAN KOTT said that could be resolved by striking "a vast
majority of Americans of all political parties" on line 5 and
insert "Alaskans." He offered that as a conceptual amendment for
discussion. However, he maintained his difficulty with the
language sounding factual when there are not figures available.
REPRESENTATIVE MURKOWSKI echoed Representative James' belief that
the majority, the vast majority, of Alaskans would support
voluntary prayer or a moment of silence in public schools. There
is concern that the prayer would be structured which could be
alleviated with the moment of silence option.
CHAIRMAN KOTT commented that would go beyond the scope of the
resolution.
MR. HODGINS pointed out that the congressional resolutions have
different last sentences. He didn't believe that the sponsor would
have any problems with Chairman Kott's conceptual amendment.
REPRESENTATIVE ROKEBERG commented that Representative Murkowski's
advice could run afoul of the resolution. He reiterated his
concern regarding the adoption of the Congressional resolutions
through the adoption of SJR 25 which only references the
Congressional resolutions.
REPRESENTATIVE JAMES clarified that the real problem is supporting
something without knowing the end reslut. How the prayer is given
is problematic for everyone, of all religions and beliefs. She
said that having a silent time would allow each to do as they wish.
Therefore, Representative James didn't see Alaska or the nation
passing a constitutional amendment allowing verbalized prayer.
Number 2017
REPRESENTATIVE GREEN suggested replacing the second "WHEREAS" with
"WHEREAS the Alaska Legislature believes that...Nothing in this
Constitution shall be construed to prohibit individual or group
prayer in public schools or other public institutions." That would
tie into the Congressional resolutions.
CHAIRMAN KOTT suggested that the three parts of the Article be made
into "WHEREAS" clauses.
REPRESENTATIVE GREEN said that he hadn't intended to insert all
three.
MR. HODGINS clarified that one Congressional resolution utilizes
the word "prescribe" while the other utilizes the word "compose."
REPRESENTATIVE MURKOWSKI asked Representative Green then if he
would be saying that the "BE IT RESOLVED" portion of SJR 25 be
eliminated which would address Representative James' concern
regarding the unknown result. She asked if Representative Green's
language spoke to a moment of silence.
REPRESENTATIVE GREEN replied no. He noted that originally he was
going to suggest the following: "WHEREAS the Alaska Legislature
favors a constitutional amendment that will allow a moment of
silence for voluntary prayer in public schools."
CHAIRMAN KOTT commented that language is redundant. By passage,
that indicates support. Chairman Kott recommended replacing
"Alaska Legislature" with "Alaskans."
REPRESENTATIVE CROFT interjected that usually the language, "Alaska
State Legislature" is utilized.
REPRESENTATIVE JAMES commented that is the only measure at hand.
REPRESENTATIVE GREEN suggested then that there be three "WHEREAS"
clauses and the "BE IT RESOLVED" would be the language he
previously read as a new "WHEREAS" clause.
CHAIRMAN KOTT said he believed that would move closer.
REPRESENTATIVE GREEN clarified that SJR 25 would then consist of
the first, third, and fourth "WHEREAS" clauses and the "BE IT
RESOLVED" would read, "BE IT RESOLVED that the Alaska
Legislature...
TAPE 99-70, SIDE A
REPRESENTATIVE GREEN understood then that the desire was to
separate the moment of silence, so that the individual doesn't
necessarily have to pray although the time is set aside for prayer.
Number 0053
REPRESENTATIVE GREEN moved that the committee adopt Amendment 1:
Delete lines 5-6
There being no objection, Amendment 1 was adopted.
REPRESENTATIVE GREEN moved that the committee adopt the following
amendment:
Delete lines 12-14
Insert "BE IT RESOLVED the Alaska Legislature favors a
constitutional amendment that will allow a moment of
silence for voluntary prayer in public schools."
REPRESENTATIVE JAMES questioned if the intent is to request that
this happen or for it to always happen. Without forming it as a
right, we won't be any better off than we already are.
REPRESENTATIVE GREEN asked if instead of "allow" the language
"provide for" would satisfy that concern. Therefore, the amendment
would read as follows:
Delete lines 12-14
Insert "BE IT RESOLVED the Alaska Legislature favors a
constitutional amendment that will provide for a moment
of silence for voluntary prayer in public schools."
CHAIRMAN KOTT pointed out that there is not a quorum. He called an
at-ease at 2:25 p.m. The committee was called back to order at
3:30 p.m.
CHAIRMAN KOTT announced that SJR 25 would be put aside for the
moment.
CSSB 100(FIN)-REIMBURSEMENT FOR PUBLIC DEFENDER
CHAIRMAN KOTT announced the next order of business is CSSB
100(FIN), "An Act relating to the payment by indigent persons for
legal services and related costs."
Number 0325
DOUG WOOLIVER, Administrative Attorney, Office of the
Administrative Director, Alaska Court System, informed the
committee that SB 100 was introduced at the Alaska Supreme Court's
request. Therefore, Mr. Wooliver said he would provide the
testimony on SB 100. Senate Bill 100 amends the current public
defender reimbursement statute so that anyone who receives public
defender services would fall within the reimbursement provisions.
Currently, for those people represented by the public defender,
only those convicted of crimes reimburse the public defender.
Under this legislation, anyone who receives those services would
reimburse which is similar to what people who hire private counsel
have to do.
MR. WOOLIVER explained this provision was before the legislature in
1993. In that year, the Alaska Supreme Court had legislation
introduced which requested several changes to the public defender
statutes. This provision requiring public defenders to be
reimbursed for people not convicted was part of that legislation
but was not adopted, although the rest of the bill did pass.
Subsequent to that request in 1993, Legislative Budget and Audit
did an audit of the public defender system, making several
recommendations. One of the recommendations, Mr Wooliver said,
"Was, quote, 'that the statute and court rules be amended to assess
judgment against public counsel defendants not on the basis of if
convicted, but rather on the mere fact that services were
provided.'" He noted Alaska's court system has made the other
requested rule changes and, therefore, is now coming back with the
final piece of what Legislative Budget and Audit requested, the
amendment to the statute.
MR. WOOLIVER noted that although this makes indigent defendants
similar to non-indigent defendants in that they have to repay their
defense costs, there are some significant differences. For
instance, a person represented by the public defender only pays a
portion of the fees set out in Criminal Rule 39, which should be in
the committee packets. Additionally, because this is a civil
judgment, a person is entitled to all of the defenses he/she would
receive (indisc.) Alaska Exemptions Act [AS 09.38]. Furthermore,
there are certain things which can't be attached in order to
collect these fees. He indicated that a person could petition the
court to have those fees reduced, eliminated completely, or put on
a monthly payment schedule. Therefore, there are safeguards, both
under the rules and under the statutes, so that people who are
indigent wouldn't be driven further into poverty because of ruinous
defense costs. Mr. Wooliver noted that the fees are a fraction of
what a private attorney would charge and, as mentioned, there are
ways to reduce them. He pointed out that the Senate made several
amendments which he offered to review.
MR. WOOLIVER mentioned that he would like the committee to consider
the following change. He referred to page 2, line 6, of CSSB
100(FIN) which read, "(c) The court shall [MAY] enter a judgment."
He noted the original "may" language and explained that the "shall"
language is a Senate amendment. The Senate was attempting to
address the perception that judges weren't entering these judgments
very often. While judges, in fact, almost always enter these
judgments. He noted that Alaska's court rule requires that judges
enter the judgments. Mr. Wooliver indicated this fact was
confirmed through research after the Senate committee hearing. The
problem the Senate was attempting to fix doesn't really exist.
Therefore, he recommended that "shall" be changed back to "may"
because the "shall" language would make it mandatory in all cases.
Mr. Wooliver explained, "So, the problem they were trying to fix
doesn't really exist, but ... the problem is created with the
'shall' language, is now it's not limited to criminal defendants or
juvenile delinquents; it also covers attorneys ... in child need of
aid cases, including children who are appointed attorneys in child
need of aid cases, the mental commitment proceedings, and other
areas that the court may or may not want to impose fees under."
Number 0717
CHAIRMAN KOTT recognized the suggestion. He questioned if that
would mean the committee should change "may" back to "shall" on
page 2, lines 11 and 13. [CSSB 100(FIN), page 2, lines 11 through
14 currently read:
... Upon a showing of financial hardship, the court (1)
may [SHALL] allow a person subject to a judgment entered
under this subsection to make payments under a payment
schedule; and (2) may [SHALL] allow a person subject to
a judgment entered under this subsection to petition the
court at any time for remission,"]
MR. WOOLIVER noted those also were Senate amendments. The Senate
was concerned that the "shall" language required a court to take
into account a payment schedule or a person's financial situation
rather than the discretion not to. Mr. Wooliver suspected the
court would take those things into account anyway. He had no
preference one way or the other.
CHAIRMAN KOTT asked how a petition for remission, reduction, or
deferral of the unpaid portion of a judgment or an entire judgment
would be entered with the court under this provision in Section 2.
He questioned if that person received a public defender and then
would be further obligated.
Number 0811
MR. WOOLIVER answered anyone can come before the court at anytime
and ask that his/her fees be remitted, reduced or scheduled. This
does happen. The courts also routinely issue a fee that is less
than what is on the schedule in the committee packet. According to
the Department of Law and its "collections division," someone who
only meets with the public defender for a short period of time,
enters a guilty plea, and "that's the end of it," would receive a
judgment for something like $50 because there is only a short
contact. A person who has a fee and wishes to have it reduced can
come to the court and explain his/her situation. The judge can
reduce the fee, eliminate it, or allow the person to make payments
on a schedule.
CHAIRMAN KOTT questioned what the payment would be for one to repay
the costs of utilizing the public defender.
MR. WOOLIVER reiterated that the court has adopted a schedule of
fees under Criminal Rule 39 which lays out various fees for various
services.
CHAIRMAN KOTT noted he did not have a copy, indicating staff would
make copies for the committee, and asked Mr. Wooliver to give an
idea in monetary terms of what they were discussing.
MR. WOOLIVER described that for a misdemeanor trial such as driving
while intoxicated the maximum would be $500. The maximum for a
first degree murder trial would be $5,000. Most of the misdemeanor
fees are $200 to $250. He noted that the amount of the fee depends
upon where a person is in the process. For example, a guilty plea
before a great deal of work is done on a case could result in a fee
of $1,000 for the most serious felony, decreasing from there. He
informed the committee that the fee of a trial for a Class B or
Class C felony is $1,500. A trial for a Class A or unclassified
felony, except for murder, would have a $2,500 fee. Mr. Wooliver
noted that most people don't go to trial, but rather plead out at
some point prior to trial. For most felonies, a change of plea
after someone has been indicted, but before a substantial amount of
work has been done carries a $500 fee. These are the types of fees
they are looking at. The most someone could pay is $5,000 for a
first or second degree murder trial; the least someone would pay is
$200 for a misdemeanor change of plea. Most fees are less than
$1,000.
Number 1024
REPRESENTATIVE GREEN referred to the Senate's insertion of "only"
on page 2, line 15. He asked what that adds. [CSSB 100(FIN), page
2, lines 13-15 read: "...; and (2) may [SHALL] allow a person
subject to a judgment under this subsection to petition the court
at any time for remission, reduction, or deferral of only the
unpaid portion of the judgment ..."]
MR. WOOLIVER indicated the "only" was inserted because of testimony
from the Department of Law's collection division. The collection
division said that occasionally it receives an order from a judge
ordering the collection division to reimburse a person for some
fees that person had paid. Mr. Wooliver explained he hasn't been
able to discover exactly why that happens. He suspected there
might have been a paperwork problem where someone had his/her fees
reduced, but it was not transmitted to the Department of Law. Mr.
Wooliver noted it is not a common occurrence; he didn't know for a
fact that is actually a problem. The Senate's solution, however,
was to insert "only" as a reminder to the court.
CHAIRMAN KOTT questioned if someone is asked whether or not he/she
wants defense counsel if the person is indigent.
MR. WOOLIVER explained that a person would request that counsel be
appointed, the courts would determine indigency, and if the person
is entitled to publicly-appointed counsel, one would be assigned.
Number 1134
CHAIRMAN KOTT asked if someone can pick and choose from a list. He
indicated that public defenders, like private attorneys, might vary
in quality.
MR. WOOLIVER answered no.
REPRESENTATIVE GREEN agreed with Mr. Wooliver's point on page 2,
line 6, returning "shall" to "may". He added, "But as far as those
other changes from 'shalls' to 'may', that also seems like a pretty
reasonable approach. Do you have a personal view of what the
Senate did there ...?"
MR. WOOLIVER, referring to the change of the two "shalls" to "may"
on lines 11 and 13, answered that the court has no position on
whether those changes are good, but would not have any objection
to changing them back.
CHAIRMAN KOTT inquired as to whether the judge should be able to
allow for the indigent person to make payments or should that be
left to the judge's discretion? The "may" language allows the
judge's discretion. Noting the person is indigent, Chairman Kott
questioned why the person shouldn't be allowed to make payments.
He added, "I'd need to hear a compelling argument that would
suggest..."
MR. WOOLIVER responded he could not think of a compelling argument
as to why this shouldn't be "shall."
Number 1275
REPRESENTATIVE JAMES indicated this is where her confusion lies.
Given that a person is found to be innocent, or at least not found
to be a criminal, this says that the court shall enter a judgment
to that person for whatever the cost is. Then, depending on how
the court feels, the person might be let out of the fee or might be
able to make payments. She questioned if returning the language to
"shall" would mean that the court would at least look at it and
consider the circumstances. One of her problems is that "fairness
is fairness" and someone who is not indigent has to pay for an
attorney. If a person is indigent, the state has the obligation to
provide that person counsel. Representative James believed someone
who is not indigent should be in a position not to pay also. In
any event, currently someone who is indigent does not have to pay
and what is being hoped is that this person will pay.
Representative James reviewed her understanding, indicating the
person might have been indigent when he/she went in, and at some
subsequent time within the next six-year period the person might
not be indigent anymore for some reason. It seems to her the
person should pay if that is the case. She compared it to the
Internal Revenue Service (IRS) which puts a lien on a person who
owes taxes and has no ability to pay. This lien stays there for a
long period of time; the person can petition and negotiate to get
it off, or it stays there until the time goes by and then it falls
off. However, during the period of the lien, if the person comes
into any money, it gets attached. This seems like it would be a
rational approach. Representative James questioned whether there
is anything in the state's laws that says they cannot treat
everybody alike.
Number 1397
MR. WOOLIVER answered everyone is not treated alike in all
situations; criminals are treated differently from non-criminals.
REPRESENTATIVE JAMES clarified she is speaking of innocent people.
MR. WOOLIVER answered, "Right. No, there's nothing that says we -
we don't treat them alike." In response to Representative James'
first question about what this language change does, he noted
Representative James is right. Under the original language the
court would be required to either put the payments to a schedule if
the person has a hardship, or, he said, "... they are required now
to at least listen to the person in order for them to have a
hearing to say, 'Look, I can't make these payments.'" Under the
Senate changes, the judge would not have to have a hearing and
would not necessarily have to put it to a schedule, regardless of
(indisc.).
REPRESENTATIVE JAMES expressed her preference for the previous
language and thinks the committee should change it back.
CHAIRMAN KOTT agreed. His biggest concern with the whole issue
dates back to the landmark 1960s "Wainright" [Gideon v. Wainright,
372 U.S. 335 (1963)] case which determined that indigent people
need to have counsel. With the suggestion that a person would have
to pay or buy counsel Chairman Kott wondered if this would create
some barriers, even if minimal. For a person with no funds, $5,000
is a very large amount of money. He described the scenario of a
person being found innocent and then having to raise $5,000 for a
long-term repayment plan probably including interest. He wondered
whether this crosses over the fine line from that landmark 1960s
case, or is there something more recent.
Number 1530
MR. WOOLIVER responded that the U.S. Supreme Court has upheld
repayment statutes, requiring those who have been provided with
public defender services to repay them. From just a quick "Westlaw
(ph)" search, he found that a few states have upheld similar
statutes, which required the person to repay even if he/she is not
guilty. However, Chairman Kott raises the fundamental public
policy question regarding whether to go in this direction or not
which is a question for the legislature to resolve. Mr. Wooliver
informed the committee that some type of repayment provision for
public defender agencies is present in almost every state.
REPRESENTATIVE GREEN indicated that this really seems strange
because he had been "beaten up pretty badly on the [House] floor"
for attempting to attack the problem of public interest litigants,
where these litigants do not pay anything. However, an indigent
person would be forced to pay. He commented it doesn't seem like
the kind of society he would like to belong to. Therefore, he
would certainly suggest the language be changed back to "may."
Representative Green clarified he was speaking of the change on
page 2, line 6.
MR. WOOLIVER noted that would not prevent the court from charging
someone who is not convicted. However, the return to "may" does
not place any mandatory requirement for all public defender
appointments.
REPRESENTATIVE GREEN agreed; that is his point.
Number 1620
REPRESENTATIVE JAMES commented she had liked Representative Green's
bill so she has a different attitude. She expressed her belief
that everyone should be treated fairly and equally, and the judge
should have discretionary decision-making power to determine what
is fair in a specific case. Representative James said she has a
problem with not charging people, but she has no problem with the
court deciding the person should not have to pay. Therefore, that
should be examined in every case. Representative James indicated
the need for language which would also allow the judge
discretionary power to say whether or not this is realistic for a
particular person based on the charge against the person and
anything else relevant to that case. If that ability isn't
available, there is the possibility that someone "just stand-by
innocent" who needed attorney representation to get cleared of
charges would have to pay. This person should not be jeopardized
in the long run. All such considerations should be taken into
account and the judge is the only one who can do that.
Representative James added, "We can't sit here and draft a piece of
legislation that going to make fairness. It's going to have to be
determined on a case by case basis."
CHAIRMAN KOTT noted he would save his comments for debate.
Confirming there were no further questions for Mr. Wooliver, the
chairman called the next witness in Juneau forward.
Number 1761
WALTER MAJOROS, Executive Director, Alaska Mental Health Board,
Department of Health and Social Services (HSS), came forward. He
stated the Alaska Mental Health Board is a planning and advocacy
organization for people in Alaska who experience mental illnesses.
The board believes SB 100 has some potentially, and perhaps
unintentional, adverse impacts on people with mental illnesses.
Through this legislation this occurs in both the civil and criminal
systems.
MR. MAJOROS understood the concern about the legislation applying
to someone who is not convicted and that person being responsible
for fees. However, he does not know that the intention was to also
go over to the civil system to deal with issues of a non-criminal
nature altogether. Providing an example of how this impacts people
with mental illnesses on the civil system side, Mr. Majoros
described that many people with mental illnesses experience
psychiatric emergencies. When that happens, if people are unable
to help themselves and are a danger to themselves or others, or are
gravely disabled, it is necessary to enter the system of civil
commitment. This is where someone is involuntarily committed -
committed against the person's will - to a psychiatric facility to
receive evaluation and treatment. Many of these people are
indigent and are on social security insurance and/or adult public
assistance due to the severity of their disabilities. This
legislation would require those people to make payment for the
civil commitment process or the representation they received in
that process. Clearly, this presents an undue economic hardship on
people with mental illnesses who are already marginally able to
survive. With regard to the ability to petition for reduction or
elimination of fees, the legislation's current drafting would
require the individual to petition for reduction of fees and would
not allow for judicial discretion regarding those fees. Many with
mental illnesses do not have the capacity to petition the court for
fee remission, especially those in crisis situations or psychiatric
emergencies. To put the total burden on an individual to make that
petition in all cases, absent any form of judicial discretion, is
not in the interests of people with severe mental illnesses.
Furthermore, it doesn't recognize what going through that process
would be like for such a person. Therefore, the board would ask
the committee to strongly consider whether this legislation should
be addressing the civil system at all because it clearly has some
severe impact on people with mental illnesses who are being civilly
committed.
MR. MAJOROS addressed the impact on the criminal side of the
equation. He noted there are many people with mental illnesses who
are arrested for nuisance-type offenses, although the real need is
for community treatment to address these mental health needs. One
of the board's main goals has been to decriminalize mental illness.
He expressed embarrassment that the current largest provider of
mental health services is the state Department of Corrections and
correctional facilities. He explained that people who do not have
their medications or are not being stabilized with the community,
often commit minor offenses and end up in the Department of
Corrections. The board is actively involved in attempting to
reverse that process. The board has assisted with setting up a
mental health court in Anchorage, a jail diversion program which
diverts mentally-ill offenders from the correctional system into
community-based services. The board seriously believes the
legislation in its current form could hurt its efforts to move
mentally-ill people out of correctional settings into
community-based settings.
MR. MAJOROS pointed out that once again in the criminal system, the
onus would be placed on the individual to make the petition
independently to reduce or eliminate the fees. Again, an economic
burden would be placed on people with mental illnesses, and their
ability to live successfully within the community would be
threatened. Mr. Majoros emphasized the board does not believe the
bill's intent was to apply to this population on either the
criminal or civil side, and certainly not in all or nothing type
situations. He expressed approval of the discussion regarding the
possibility of returning the judicial discretion for these cases;
the board agrees that judicial discretion is the appropriate way to
deal with these cases. Mr. Majoros requested the committee closely
examine whether it is the legislation's intent to look at the civil
side at all, or if it is mainly to address people on the criminal
side who are not convicted. He believed that is perhaps an
unintended consequence, but noted there is a potentially severe
impact to mentally-ill people on both the civil and criminal sides.
Number 2070
REPRESENTATIVE JAMES asked for an example of a case in a civil
court.
MR. MAJOROS described an example in which a mentally-ill person is
not taking his/her medications or whose need for medication changes
and he/she starts hearing voices. Perhaps, the voices begin
telling him/her to kill someone. If the person started to take
actions in that direction or began talking to people about that
then there would be the civil commitment statute, Title 47, which
allows mental health professionals and peace officers to initiate
proceedings that would have him/her involuntarily evaluated in a
hospital setting in order to determine whether he/she is suffering
from a mental disorder and needs to be detained against his/her
will to be stabilized.
REPRESENTATIVE JAMES questioned if that person would be represented
by counsel in that process.
MR. MAJOROS answered yes.
REPRESENTATIVE JAMES questioned, then, wouldn't counsel petition
the court for that person if this is in the person's best interest,
or would the person receive a guardian ad litem. She asked who
would be the responsible person in that individual's life.
MR. MAJOROS replied that he is not exactly sure regarding the
procedural issue of whether the individual could use the public
defender to petition for those costs to be waived. This would seem
to be an apparent of conflict interest situation because the fees
are due to the public defender and they would also be petitioning
for a waiver. Perhaps, Mr. Wooliver could speak to that more
directly.
Number 2123
MR. WOOLIVER understood that a person is not entitled to a public
defender to petition the court to have those fees reduced. He
clarified that the fees do not actually go to the public defender,
but are collected by the Department of Law's collections division.
REPRESENTATIVE JAMES surmised, in the specific example being
discussed, that if a person never used the public defender in the
first place they would not fall under this.
MR. WOOLIVER agreed that is correct, but pointed out that people
subject to involuntary commitments are entitled to public defender
representation so they could and would be generating fees.
REPRESENTATIVE JAMES concluded that people could not use the public
defender to petition the court regarding the fees.
MR. WOOLIVER agreed; it was his understanding that a person is not
entitled to a public defender at the subsequent hearings about the
fees.
REPRESENTATIVE JAMES asked if a person is charged to be mentally
ill and was put away for awhile would have a responsible individual
as representation or would the person have to represent
himself/herself.
MR. WOOLIVER answered, "If they were, they would most likely have
some type of a guardian that ... could take of that issue."
CHAIRMAN KOTT called an at-ease from 4:06 p.m. to 4:18 p.m.
Number 2194
ROBERT BUTTCANE, Administrative Juvenile Probation Officer, Youth
Corrections State Central Office, Division of Family and Youth
Services, Department of Health and Social Services, came forward in
Juneau. As has already been stated, the department has some
concerns over SB 100. The current Senate legislation [CSSB
100(FIN)] would adversely impact virtually all of the client
constituencies within the Department of Health and Social Services.
These constituencies include children, mentally-ill persons,
children and families involved in adoption proceedings, alcoholism
treatment commitment cases and others. The department believes Mr.
Wooliver's proposal to give the court the discretionary authority
to impose these judgments to be the most direct fix. That way the
judiciary would have the discretion to impose those payment
judgments where it is still appropriate. When it is clearly not
practical at the outset, the court would not then be under an
obligation to make those judgments. Therefore, the department
would favor the amendment to change "shall" to "may" on page 2,
line 6. He noted that the change would still allow the court to
impose judgments against certain delinquency cases. That would not
be a problem for the department in view that some juvenile
delinquents would also be treated much like the adult offenders
which is appropriate in certain cases. However, he indicated the
preference is to allow the court to make the distinction of whether
or not to impose a judgment for a public representative, after
considering all of the factors in a case.
REPRESENTATIVE GREEN indicated there were two other previously
discussed Senate amendments on lines 11 and 13. Representative
Green asked if Mr. Buttcane felt a return to the original wording
would be to the benefit of the HSS patients.
MR. BUTTCANE answered in the affirmative; that would require the
court to take a look at each case and then make that determination
and consideration which makes sense.
Number 2318
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union
(AkCLU), testified next via off-network teleconference from
Anchorage. Ms. Rudinger noted this is a very important issue from
a civil liberties standpoint, commenting that she had faxed each
House Judiciary Standing Committee member a copy of the AkCLU's
position paper on SB 100. With Chairman Kott's confirmation that
the AkCLU's position paper has been distributed, Ms. Rudinger did
not address the constitutional arguments.
MS. RUDINGER commented the committee heard earlier that the U.S.
Supreme Court has upheld recoupment formula which is true. In
Fuller v. Oregon [417 U.S. 40 (1974)] the Supreme Court upheld the
recoupment formula, but the defendant was at least convicted of
something which was critical in that case. The AkCLU's biggest
opposition, not only constitutionally but in terms of public
policy, is the fact that it applies to people who are wrongfully
hailed into court in the first place, or when the charges are
dropped, or when people are found not guilty for whatever reason.
Ms. Rudinger stated this is really offensive and from the
discussion, she sensed that some of the committee members agreed.
She pointed out that the Supreme Court has not examined a
recoupment formula that applies to people who were not convicted of
a crime. Therefore, it is not known what the Supreme Court would
do in such a case. However, there is instructive language in the
Fuller decision where the court points out all the reasons Oregon
was correct when it exempted acquitted defendants from the scope of
its recoupment statute. She discussed the many serious
reprecussions, such as stress and a damaged reputation and loss of
a job and lost hours defending himself/herself, this would impose
on someone who is not convicted. The state can already recoup
money from people who are convicted or plead guilty to some
wrongdoing. Therefore, there is a real fairness problem here.
MS. RUDINGER informed the committee of a case, Fitch v. Belshaw,
581 F.Supp. 273 (1984), that was brought up after Fuller. Oregon
had passed a statute that applied to acquitted indigent defendants.
In this case, the plaintiffs won and the statute was struck down.
She noted that the case did not go up on appeal. In this case, the
judge did not say that recoupment statutes applying to innocent
people or acquitted defendants are always unconstitutional. "The
judge was able to strike it down on narrower grounds and still
found Sixth Amendment and Equal Protection violations. That
statute had some defects that are also present in Senate Bill 100."
Ms. Rudinger pointed out that Fitch is the only district court case
in the Ninth Circuit that she has found and there is no Ninth
Circuit case. Therefore, the Fitch case is instructive. She
identified the defects as the lack of any specific standards for
courts to use when deciding who can afford to pay and who can't.
Even if the word "shall" to "may" is changed on line 6, problems
remain with the court, without any standards, being allowed to
decide on whether someone should pay for the costs of defending
themselves against phony charges.
TAPE 99-70, SIDE B
Number 0001
MS. RUDINGER continued by pointing out that SB 100 does not include
any assurances, as was the case with the Oregon statute, "that a
defendant who is unable to make payment could demonstrate the
reason they can't make payments has nothing to do with some
deliberate disobedience of a court order or some bad faith. They
need to be able to demonstrate that, because if it has nothing to
do with deliberate disobedience and it really is financial
hardship, then the standards for criminal justice as well as the
dicta in Fuller versus Oregon indicate that this person should not
have to pay to defend themselves when they weren't convicted of
anything." Practically speaking, what is being discussed here is
taking poor people's permanent fund dividend (PFD) checks which is
how most of the money is collected for court-appointed attorneys'
fees. Under SB 100, if someone is poor, wrongfully accused and
found innocent, the government will still take money from that
person's PFD. She posited the question: "Why not just say that if
you are poor you don't get a PFD because the state needs to pay for
taking care of you and providing lawyers for you when they want to
bring you up on false charges? There's something really wrong
here."
Number 0138
MS. RUDINGER pointed out other problems. In smaller communities in
Alaska, often the person making decisions about who to charge with
a crime is the local police not a legally-trained district
attorney. The district attorney's office in the larger cities is
able to screen out cases which lack merit or have legal problems.
In smaller jurisdictions, the police make these decisions, file the
paperwork with the court, counsel is appointed and the paperwork is
sent to the DA who covers that area. Upon review of a case, the DA
may simply dismiss the charges, but by then the person has already
needed to use the public defender. This occurs often enough that
there should be concern about the fairness of SB 100 in this
context. Ms. Rudinger expressed concern that SB 100 would require
a wrongly accused person to pay for legal representation even if
the defense filed a motion to dismiss, or the court dropped the
charges, or if the charges were a mistake of a rural police
officer. She indicated that the state should pay for mistakenly
bringing the charges.
MS. RUDINGER turned to the possible scenario of a defendant
refusing representation and wishing to represent himself/herself in
court. In such a situation, the court would still appoint counsel
against the person's will. Upon discussing this with one of the
attorneys on the AkCLU's legislative committee, the attorney noted
such a situation is rare. She explained the court's justification
for appointing counsel against a person's will is that the
potential pro se defendant does not know the rules of evidence and
would not be able to conduct himself/herself according to the
court's rules of decorum. However, Ms. Rudinger indicated the real
reason the courts would force such a defendant to have a public
defender is to make things run more smoothly and more conveniently
for the court. She questioned whether it is fair to appoint a
lawyer against a person's will and then make the person pay for the
counsel when he/she is acquitted.
MS. RUDINGER noted that SB 100 also creates a potential for abuse.
There could be situations in which a police officer could bring
false charges against a person, who happens to be poor. That poor
person would have no recourse to receive court-appointed counsel
without the risk of financial damage. Therefore, a coercion factor
would happen in these situations. Some people would be so afraid
of fighting these charges that they would rather just plead out and
settle quickly in order to avoid a lengthy case in which the
public defender's fees would build up. She questioned how these
people, who may have been brought into court wrongfully, are
supposed to maintain confidence that they have the right to go to
their court and ask the court to not make them pay. She indicated
that these people may not understand the process or may be
intimidated by everything that has happened to them; therefore, it
would be incorrect to assume such people would take the initiative
and petition the court about the legal fees. In effect, these
people would be coerced into pleading out even if they had done
nothing wrong. Therefore, Ms. Rudinger urged the committee to
follow its gut instinct on this. "If something seems unfair, it's
because it is in this case."
Number 0275
REPRESENTATIVE JAMES expressed that her concern that this affects
everyone the same way. There are cases where people's lives were
ruined by a false accusation. If a person is on the line between
indigency and non-indigency, the financial damages for
representation by counsel to the person who is not indigent may be
even more devastating to that person than to someone who is
indigent. Representative James said she is for fairness, but
isn't certain that some kind of discretionary decision-making
process over this shouldn't be a good thing.
MS. RUDINGER agreed that people who do not qualify for public
defenders and do have to hire private defense counsel are put at
great hardship. No matter a person's economic status, being
wrongfully brought up on charges is a great hardship. She
suggested if the desire is treat everyone equally, then reimbursing
people brought up false charges might be considered. Ms. Rudinger
emphasized that this is about people who are clearly indigent,
although she acknowledged the gray area along this line that
Representative James is concerned may be arbitrary or somehow
unfair. Of those who are acquitted or found not guilty, Ms.
Rudinger believed the financial hardship falls more heavily on the
person who is indigent and needed a public defender. "There is
just no getting around that."
REPRESENTATIVE ROKEBERG interjected his disagreement, commenting on
the redistribution of income.
REPRESENTATIVE JAMES described a scenario in which an indigent
person may have a job, may not have a car, may not necessarily have
a family; while, the person just over the indigency line may have
a car and be making car payments and may have a low-paying job.
The indigent person might have a struggle making the payment, but
might have some cause to plead with the court to get out of the fee
or set up a payment schedule. The person over the line does not
have that option. She surmised that the only option the person
over the line probably has is to voluntarily spend more on an
attorney to sue the state in order to not have to pay. That could
result in the person losing his/her car, job, et cetera. Now this
person is even below the indigent person who the state helped.
MS. RUDINGER agreed; there is that gray area near the line where
people can be hurt. Perhaps, the legislature wants to provide more
people the option to get court-appointed counsel. She noted that
in order to provide due process for people affected by this, as a
minimum, the courts need specific standards to use when determining
whether someone is financially able to make restitution. For a
person who has been found not guilty or whose charges have been
dropped, Ms. Rudinger indicated that having the court demand
reimbursement adds insult to the injury. She questioned, "Do we
want more people to be treated unfairly by expanding the scope of
who needs to make restitution or do we want fewer people to be
treated unfairly and maybe want to think about raising the bar in
terms of -- or at least setting down specific standards for who can
be ordered to make restitution."
Number 0470
REPRESENTATIVE GREEN asked, "Are you more concerned with the ...
possibility of amending Section 2, are you concerned with the
'shall' there or are you, as you've alluded to earlier, ... that
any time someone is brought up on charges and not found guilty that
the state made a mistake." He also asked if sometimes there is a
difference between whether someone is guilty, or there has been a
mistake, or the person was simply found not guilty but may have
still done something to cause this action to be brought.
Representative Green continued, asking if Ms. Rudinger is "opposed
to any time the state brings an action and loses; there should be
no charges? Or only that there should be an ability for the court
to determine?" He indicated the last question, could be very
problematic.
MS. RUDINGER answered, regarding Representative Green's question
about the possible language change, that "shall enter a judgment"
is the more offensive language from a civil liberties standpoint.
The permissive standard, "may" standard, is less offensive. From
a public policy standpoint, the AkCLU feels that people who are
acquitted or whose charges have been dropped should not have to
repay the cost of a public defender (PD) when the person haa
already qualified as indigent; therefore, qualified for a PD.
Perhaps some people are more innocent than others, but the fact is
that either the government did not have enough evidence to get a
conviction or the government just made a mistake. In either case,
these people have already suffered greatly. Ms. Rudinger said, "I
don't think that you can draw this distinction: Under our system
of justice, "not guilty" means "not guilty" and we let it go at
that. I don't think you want to start tinkering with that."
MS. RUDINGER understood the second part of Representative Green's
question to speak to the hardship on the legislature with regard to
developing standards for courts to apply in determining whether
someone is able to pay. However, that is exactly the defect found
in the Oregon statute, that it was lacking those standards, which
lead to Judge Panner striking down that statute as
unconstitutional. "Under due process, there must be standards for
courts to apply." Additionally, there must be notice to the
defendant as well as an opportunity to be heard. Ms. Rudinger
commented that earlier a good point was raised indirectly regarding
that defendants do not have the right of a public defender to argue
on the defendants' behalf in financial hardship type hearings.
Perhaps, this should be revisited; she was unsure as to whether
this would be a conflict of interest since the court is collecting
the money. Ms. Rudinger drew attention to this possible lack of a
right to a lawyer for a person who might be mentally ill, have some
other kind of deficiency or incapacity to argue on his/her own
behalf, or who could be too afraid to even try because he/she has
already lost faith in the system, et cetera. Ms. Rudinger
reiterated that this runs the risk of indirectly, unintentionally
urging people to plead out, plead guilty, which will
disproportionately impact poor people as opposed to those who are
not poor.
CHAIRMAN KOTT asked if that had answered Representative Green's
question.
REPRESENTATIVE GREEN replied no, and commented that he is not going
any further.
MS. RUDINGER commented that she thought she had answered his
question.
Number 0685
REPRESENTATIVE ROKEBERG expressed his frustration, noting he has
had an opportunity to read the AkCLU position paper. He
appreciated the desire for fairness. Ensuring that people's
constitutional right of representation is absolutely paramount.
However, he did not understand the concept that an individual who
can pay for counsel has to pay whether innocent or not, while the
court says a higher value must be given to the fact that an
innocent poor person should receive payment for counsel.
Representative Rokeberg commented that the logic, someone has
greater rights if he/she is indigent than if he/she is part of the
working poor, is beyond his understanding. It seems that, as a
matter of policy, the working poor of this country are paying for
the freight for these people who are abusing the system, in large
part, today. For many in this country, using and working the
system is a way of life. He stressed that this is one area he is
aware of where the courts do not even do enough "interrogatories
(ph)" to determine whether a person qualifies before a public
defender is appointed.
MS. RUDINGER said she shared his frustration that any time anybody
is wrongfully held up on charges that person, regardless of that
person's financial status, is greatly inconvenienced by the
government and unfairly so. As the committee is aware, the
legislation asks the legislature to make a decision whether poor
people have to repay the government for the costs of their defense.
Such a financial order would fall most heavily on those with the
least money which is the issue here. She acknowledged that any
innocent person, wrongly brought up on charges has been unfairly
treated. However, should poor people who don't have a choice in
their lawyer, who are acquitted, pay a portion of those attorney
fees. While a person who can afford it, at least has the choice of
who represents them.
REPRESENTATIVE ROKEBERG emphasized that he did not understand the
distinction that someone who is poor receives free counsel while
someone who is part of the working poor has to pay for it whether
guilty or innocent.
MS. RUDINGER commented that goes back to Gideon v. Wainwright, a
1963 U.S. Supreme Court decision.
REPRESENTATIVE ROKEBERG stressed that it is illogical. Even if it
is a Supreme Court decision, it is not fair.
MS. RUDINGER responded she certainly thinks he has a right to
disagree with the Sixth Amendment.
REPRESENTATIVE ROKEBERG rebutted that he was not disagreeing with
the Sixth Amendment nor was he disagreeing with the right to
counsel. Representative Rokeberg noted he had questioned why is it
as a matter of public policy that the poor get a better deal than
the people who are paying taxes which isn't fair at all.
REPRESENTATIVE JAMES noted Ms. Rudinger's earlier comment regarding
indigent people's permanent fund dividend checks being seized for
this purpose. Representative James said, "That going up, quite a
ways up, from indigency if a person has to pay it -- probably, they
have to give up their permanent fund dividend too. So, it goes a
long ways up the scale, so there is some unfairness there and I
don't know what to do about it." She agreed that everyone is
guaranteed counsel, and it is not appropriate to charge those who
were wrongfully accused. However, some people should not be able
to get away with it while others do not.
Number 0947
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified next via off-network teleconference
from Anchorage. Mr. McCune stated, in preface to his remarks, that
the Public Defender Agency is very cautious about testifying and
making remarks about the fees legislation for public defender
services because of any possible conflict of interest that could
arise. He described the way the fees are collected: there is a
judgment set up by the court and then the fees are collected by the
Office of the Attorney General or a section of the Department of
Law. The agency does not collect the fees itself. The fees go
into the state's general fund; they do not go directly into the
agency's budget. Mr. McCune indicated he thinks this is a good way
to handle this to avoid any kind of adversarial relationship with
a client in the middle a case. With the agency's caution in
testifying on fees legislation voiced, Mr. McCune expressed support
for the idea of not having mandatory fees for any kind of child in
need of aid case or civil case where the agency represents people.
He indicated the agency is concerned about the child in need of aid
cases and mental health commitment cases, where the agency
represents clients. Mr. McCune believed the court does have some
authority in juvenile delinquency cases.
MR. McCUNE referred to the change from current statutory language,
"Upon the person's conviction", et cetera, on page 2, line 6, and
commented that this is just something that did not occur to the
agency when they were talking in the Senate. It was generally
restricted to criminal cases which he felt was appropriate and
where the emphasis on picking up fees should lie. Mr. McCune noted
there is a case involving attorneys' fees in child in need of aid
cases, "Cooper versus State and it's found at (indisc.) Pacific
Reporter, ... 638, page 174." Mr. McCune indicated that it would
not be appropriate to have attorneys' fees charged in any way in
child in need of aid cases. Currently, in most civil cases, under
Civil Rule 82 the prevailing party can get attorney's fees from the
other party even if the other party is the state. Therefore, he
expressed the need not to change that - where a prevailing party in
a child in need of aid case could ask for attorney's fees from the
state. The reason is that, as the court said in Cooper, there are
strong policy considerations. Child in need of aid proceedings are
intended to promote important public interest and welfare of
children. Because of this, the agency certainly wants to support
Mr. Buttcane's position that attorneys' fees for public defenders
should not be collected in civil cases. Mr. McCune noted the
agency is also supportive of some way to provide mentally-ill
people help in petitioning the court to be able to be relieved from
fee payment.
MR. MCCUNE described the way the process currently works.
Generally, the court sends a judgment or notice of intent to impose
a judgment for public defender fees to the person at his/her last
known address. A court form is attached to that notice which can
be filled out, expressing why he/she thinks a lower fee or no fee
should be paid. The agency does not assist people in filling out
those forms because of conflict of interest problems and because
the rule says the person is not entitled to public defender
representation for that part of the case. The agency passes the
forms along if people request them, but goes no further. Mr.
McCune said he thinks it is quite good to have some discretion in
the courts to allow the court to decide when fees should be imposed
and the amount of fees that someone realistically can pay. He
indicated that often the courts look at restitution to the victim
first if there is a conviction. Other items considered are the
support of the convicted person's children and counseling fees.
Mr. McCune explained that often a person is placed on probation and
required to attend substance abuse, mental awareness type
counseling, receive assessments, et cetera which can be expensive.
He indicated the judges would prefer to see people pay for those
services rather than returning to the court with the excuse that
he/she cannot do those things because of the need to pay their
attorneys' fees.
Number 1307
MR. McCUNE informed the committee the Senate changed one other
section; on page 1, lines 12 and 13. The representation would be
at the level and to the extent required by both the state and
federal constitutions. Although it will not change the agency's
operations, the agency is somewhat concerned that there is no
reference to statutes, court rules, bar association and ethical
rules as also coming into play in how the agency does its job. Mr.
McCune concluded by offering to answer any questions.
REPRESENTATIVE ROKEBERG questioned what the current threshold is
where some repayment is sought under court rules from some of the
public defender clients. He asked if it varies with the type of
case, or the person's income threshold.
MR. McCUNE understood Representative Rokeberg to be inquiring as to
what is indigent. The Anchorage court system and all the larger
court locations have a pretrial services department which makes
that determination. The agency does not question clients, whether
someone is indigent is decided by the courts through their pretrial
services and indigency screening. Referring to Representative
Rokeberg's mention of the "working poor," Mr. McCune commented
that, depending on the charge, almost everyone is indigent. If a
person is looking at representation for a first degree murder case,
he/she would face a very large up-front cash payment. In such a
case, the court suggests that the person try to find a lawyer. If
the person can't find a lawyer, the court would require the Public
Defender Agency to keep track of the hours it works on the case.
That person then would be charged at an hourly rate for the
agency's services which would be more than the Rule 39 or Rule 209
rate.
REPRESENTATIVE ROKEBERG commented, "Interesting to note that Mr.
McCune's point is hire a lawyer, become indigent."
Number 1501
REPRESENTATIVE MURKOWSKI referred to the current statutory language
to be deleted on page 2, beginning at line 8, "ENFORCEMENT OF A
JUDGMENT UNDER THIS SUBSECTION MAY BE STAYED BY THE TRIAL COURT OR
THE APPELLATE COURT DURING THE PENDENCY OF AN APPEAL OF THE
PERSON'S CONVICTION." Representative Murkowski added, "And I guess
if it has been eliminated, you're going ahead and you're executing
on your judgment and then you are found out at the ... higher
appellate level that in fact your conviction's been overturned.
What would the procedure be ... to just handle all that?"
MR. McCUNE explained that currently, if a person is convicted at
the trial court level, the person can request a stay of the
attorney's fees order pending appeal. If the person then wins the
case on appeal, his/her conviction is vacated and set aside as is
the order for attorney's fees. He believed the language is
included in order to give the court a chance to have the order on
attorney's fees stayed pending the appeal, if someone appeals. Of
course, as the legislation has been changed and no longer says
"Upon the person's conviction" and if the court wants this change
to also apply to people who are acquitted, receive not guilty
verdicts, or whose convictions are vacated - then there wouldn't be
reason for the stay because the person would still have to pay no
matter what happened on the appeal.
REPRESENTATIVE MURKOWSKI clarified her question. She posed a
situation in which one is an executing a judgment and then the
conviction is reversed; that person has paid out and their
permanent fund dividend has been attached. She asked,
procedurally, how difficult would it be to stop everything, and
return it?
MR. McCUNE indicated that language would be reinserted if the
legislation were to be changed so that people who are found not
guilty, or whose cases are vacated upon appeal would not have a
fee.
Number 1720
CHAIRMAN KOTT confirmed no one else wished to testify on SB 100 and
announced the public testimony was closed. He stated his intention
to hold SB 100 over, based on the testimony heard. Chairman Kott
noted the legislation needs additional work before moving out of
the committee. He referred to copies of the mentioned Pacific
Reporter case, Cooper v. State, that were provided to the committee
members for their review. With that, SB 100 was held over.
SJR 25-VOLUNTARY SCHOOL PRAYER
CHAIRMAN KOTT announced that the committee would now return to
SENATE JOINT RESOLUTION NO. 25, Relating to voluntary school
prayer. Chairman Kott announced that due to a prior lack of a
quorum, Amendment 1 which would delete lines 5-6 was still before
the committee. There being no objection, it was so ordered.
REPRESENTATIVE GREEN reiterated his prior motion to delete lines
12-14. There being no objection, it was so ordered.
Number 1872
CHAIRMAN KOTT moved the third conceptual amendment:
In place of lines 12-14
Insert "BE IT RESOLVED that the Alaska State Legislature
urges the United States Congress to adopt an amendment to
the Constitution of the United States that will provide
for a moment of silence for voluntary prayer in public
schools."
There being no objection, it was so ordered.
REPRESENTATIVE GREEN moved to report SJR 25 as amended out of
committee with individual recommendations and the zero fiscal note.
There being no objection, it was so ordered and HCSSJR 25(JUD) was
reported from committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:08 p.m.
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