Legislature(1999 - 2000)
02/25/2000 01:22 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 25, 2000
1:22 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
OTHER HOUSE MEMBERS PRESENT
Representative William K. "Bill" Williams
COMMITTEE CALENDAR
HOUSE BILL NO. 163
"An Act relating to qualifications of voters; relating to the
registration of voters; relating to election districts and
officials; relating to election procedures and ballots; relating to
special procedures for elections; relating to nomination of
candidates; relating to national elections; relating to special
elections and appointments; relating to constitutional amendments;
relating to election offenses and corrupt practices; relating to
election pamphlets; relating to the deferral of jury service for
certain election officials; relating to an exemption from the State
Procurement Code regarding election ballots; relating to the
provision and use of mailing addresses on permanent fund dividend
applications for election purposes; relating to the inclusion of
voter registration forms with permanent fund dividend applications;
making conforming amendments in references to 'election district'
and 'chairman'; and providing for an effective date."
- MOVED CSHB 163(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 350
"An Act repealing the statutory bars to the State of Alaska's
prosecution of a criminal act that resulted in a conviction or
acquittal by the United States, another state, or territory."
- MOVED HB 350 OUT OF COMMITTEE WITH A LETTER OF INTENT
HOUSE BILL NO. 304
"An Act relating to issuance and sale of revenue bonds to fund
drinking water projects, to creation of an Alaska clean water
administrative fund and an Alaska drinking water administrative
fund, to fees to be charged in connection with loans made from the
Alaska clean water fund and the Alaska drinking water fund, and to
clarification of the character and permissible uses of the Alaska
drinking water fund; amending Rule 3, Alaska Rules of Civil
Procedure; and providing for an effective date."
- MOVED HB 304 OUT OF COMMITTEE
HOUSE BILL NO. 368
"An Act relating to release of persons before trial and before
sentencing or service of sentence; relating to custodians of
persons released, to security posted on behalf of persons released,
and to the offense of violation of conditions of release; amending
Rule 41(f), Alaska Rules of Criminal Procedure; and providing for
an effective date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 163
SHORT TITLE: DIVISION OF ELECTIONS
Jrn-Date Jrn-Page Action
3/26/99 583 (H) READ THE FIRST TIME - REFERRAL(S)
3/26/99 584 (H) STA, JUD, FIN
2/03/00 (H) STA AT 8:00 AM CAPITOL 102
2/03/00 (H) <Bill Postponed to 2/8>
2/08/00 (H) STA AT 8:00 AM CAPITOL 102
2/08/00 (H) Moved CSHB 163(STA) Out of Committee
2/08/00 (H) MINUTE(STA)
2/09/00 2138 (H) STA RPT CS(STA) NT 4DP 1NR
2/09/00 2139 (H) DP: JAMES, SMALLEY, KERTTULA,
WHITAKER;
2/09/00 2139 (H) NR: HUDSON
2/09/00 2139 (H) FISCAL NOTE (GOV)
2/16/00 (H) JUD AT 1:00 PM CAPITOL 120
2/16/00 (H) Scheduled But Not Heard
2/23/00 (H) JUD AT 1:00 PM CAPITOL 120
2/23/00 (H) Heard & Held
2/23/00 (H) MINUTE(JUD)
2/25/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 350
SHORT TITLE: CRIMES PROSECUTED IN OTHER JURISDICTIONS
Jrn-Date Jrn-Page Action
2/07/00 2119 (H) READ THE FIRST TIME - REFERRALS
2/07/00 2119 (H) JUD, FIN
2/07/00 2119 (H) INDETERMINATE FISCAL NOTE (ADM)
2/07/00 2119 (H) ZERO FISCAL NOTE (LAW)
2/07/00 2119 (H) GOVERNOR'S TRANSMITTAL LETTER
2/07/00 2119 (H) REFERRED TO JUDICIARY
2/25/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 304
SHORT TITLE: CLEAN WATER FUND/DRINKING WATER FUND
Jrn-Date Jrn-Page Action
1/21/00 1969 (H) READ THE FIRST TIME - REFERRALS
1/21/00 1969 (H) CRA, JUD, FIN
1/21/00 1969 (H) FISCAL NOTE (DEC)
1/21/00 1969 (H) ZERO FISCAL NOTE (REV)
1/21/00 1969 (H) GOVERNOR'S TRANSMITTAL LETTER
2/08/00 (H) CRA AT 8:00 AM CAPITOL 124
2/08/00 (H) Moved Out of Committee
2/08/00 (H) MINUTE(CRA)
2/09/00 2142 (H) CRA RPT 1DP 2NR 1AM
2/09/00 2142 (H) DP: HARRIS; NR: MURKOWSKI, HALCRO;
2/09/00 2142 (H) AM: DYSON
2/09/00 2142 (H) FISCAL NOTE (DEC) 1/21/00
2/09/00 2142 (H) ZERO FISCAL NOTE (REV) 1/21/00
2/18/00 (H) JUD AT 1:00 PM CAPITOL 120
2/18/00 (H) Heard & Held
2/18/00 (H) MINUTE(JUD)
2/25/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 368
SHORT TITLE: RELEASE OF CRIMINAL DEFENDANT
Jrn-Date Jrn-Page Action
2/11/00 2181 (H) READ THE FIRST TIME - REFERRALS
2/11/00 2181 (H) JUD, FIN
2/11/00 2182 (H) FISCAL NOTE (ADM)
2/11/00 2182 (H) INDETERMINATE FISCAL NOTE (COR)
2/11/00 2182 (H) ZERO FISCAL NOTE (LAW)
2/11/00 2182 (H) GOVERNOR'S TRANSMITTAL LETTER
2/11/00 2182 (H) REFERRED TO JUDICIARY
2/25/00 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Legal Services Section-Juneau
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Discussed HB 350 and the issue of double
jeopardy; discussed HB 368 and answered questions.
BLAIR McCUNE, Deputy Director
Alaska Public Defender Agency
900 West Fifth Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Testified in opposition to HB 350; discussed
concerns with HB 368.
DAN EASTON, Director
Division of Facility Construction & Operation
Department of Environmental Conservation
410 Willoughby Avenue, Suite 105
Juneau, Alaska 99801-1795
POSITION STATEMENT: Related his prior discussion with
Representative Rokeberg regarding amendments to HB 304.
LAUREE HUGONIN, Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward Street, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: Supported HB 368, but expressed concerns and
offered suggestions.
ACTION NARRATIVE
TAPE 00-20, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:22 p.m. Members present at the call to order
were Representatives Kott, Rokeberg, James and Croft.
Representatives Green and Murkowski arrived as the meeting was in
progress.
HB 163 - DIVISION OF ELECTIONS
CHAIRMAN KOTT announced that the first order of business is HOUSE
BILL NO. 163, "An Act relating to qualifications of voters;
relating to the registration of voters; relating to election
districts and officials; relating to election procedures and
ballots; relating to special procedures for elections; relating to
nomination of candidates; relating to national elections; relating
to special elections and appointments; relating to constitutional
amendments; relating to election offenses and corrupt practices;
relating to election pamphlets; relating to the deferral of jury
service for certain election officials; relating to an exemption
from the State Procurement Code regarding election ballots;
relating to the provision and use of mailing addresses on permanent
fund dividend applications for election purposes; relating to the
inclusion of voter registration forms with permanent fund dividend
applications; making conforming amendments in references to
'election district' and 'chairman'; and providing for an effective
date."
CHAIRMAN KOTT reminded the committee that at the last hearing they
had heard an extensive amendment [Amendment 1, adopted 2/23/00] to
the bill. Since the numbering in Amendment 1 did not match the
committee substitute before them at the time [CSHB 163(STA)], the
committee now had before it a new CS that incorporates the changes
in the appropriate locations.
Number 0081
REPRESENTATIVE JAMES asked if Chairman Kott had thoroughly reviewed
the new CS, and whether it thoroughly incorporates what was passed.
CHAIRMAN KOTT indicated the new CS does incorporate the changes.
Number 0104
REPRESENTATIVE JAMES made a motion to adopt the CS for HB 163,
Version 1-LS0769\H. There being no objection, it was so ordered.
Number 0122
REPRESENTATIVE JAMES moved to report the CS for HB 163, Version
LS0769\H, out of committee with individual recommendations and the
accompanying fiscal note. There being no objection, it was so
ordered and CSHB 163(JUD) was reported out of committee.
HB 350 - CRIMES PROSECUTED IN OTHER JURISDICTIONS
CHAIRMAN KOTT announced that the next order of business before the
committee is HOUSE BILL NO. 350, "An Act repealing the statutory
bars to the State of Alaska's prosecution of a criminal act that
resulted in a conviction or acquittal by the United States, another
state, or territory." [The bill had one section, which read: "AS
11.71.310 and AS 12.20.010 are repealed."]
Number 0240
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section-Juneau, Department of Law, informed the
committee that HB 350 changes the statutory bar to the state's
prosecution of criminal cases when another jurisdiction has already
prosecuted them, in circumstances where it is important for the
state to prosecute. Whereas AS 12.20.010 is the general statutory
bar in effect since statehood, AS 11.71.310 is the statutory bar
for drug offenses, in effect since 1982, when the current version
of the state's drug laws were passed.
MS. CARPENETI explained that two important recent cases have caused
reconsideration of this policy that has been followed since
statehood. First was the World Plus pyramid scheme fraud case out
of Fairbanks, in which the defendant was charged by the federal
government with various federal offenses. The state prosecuted for
violation of Alaska's securities laws, but the prosecution was
dismissed on the basis of this statute. Ms. Carpeneti told members
that important state interests should have been pursued in that
prosecution, and therefore the state has noticed appeal. The
second case occurred when a cruise ship dumped dirty water into
Southeast Alaska's waters last summer. Here again, the federal
government prosecuted the cruise ship company but the state was not
able to do so because of the aforementioned statute. Again, there
were important state interests involved. Therefore, both of these
cases have led to this legislation.
Number 0428
REPRESENTATIVE ROKEBERG referred to the cruise ship fact pattern
and asked whether the state had civil remedies available.
MS. CARPENETI answered that they may have, which could be addressed
by someone else. However, the state was unable to pursue criminal
penalties and fines for actions that are crimes under the state's
laws.
REPRESENTATIVE ROKEBERG asked why this would not be double jeopardy
in a criminal action.
MS. CARPENETI explained that Alaska's courts and federal courts
have upheld that it is not a violation of double jeopardy for
prosecutions from different governmental authorities to prosecute
and punish for the same conduct; therefore, the state and federal
governments could prosecute for the same conduct without creating
double jeopardy. However, the state and a municipality could not
prosecute for the same conduct because the powers of each come from
the same source. The courts have upheld that double jeopardy
applies to repetitive prosecution by the same governmental entity.
REPRESENTATIVE ROKEBERG inquired about the age of the line of cases
on this principle and whether the U.S. Supreme Court has ever ruled
on it.
MS. CARPENETI answered that regarding the federal government, the
line of cases would be fairly old, to the best of her knowledge,
and it is established law.
Number 0597
REPRESENTATIVE ROKEBERG inquired as to why the state now wants to
be able to do this. He asked whether it is a matter of subjective
judgment on the part of the Attorney General, for example, who may
feel that the punishment meted out by one jurisdiction wasn't
severe enough, and so, for retribution, the state would prosecute
again to get the miscreant twice instead of once.
MS. CARPENETI answered that in most cases the state would evaluate
a prosecution as it would any case. There isn't an expectation of
going out and prosecuting people that others have prosecuted. In
drug cases, for example, the state works with the federal
government and cooperates with the federal drug enforcement people.
Sometimes the federal government decides to pursue a prosecution in
a particular case, and sometimes the state does. Ms. Carpeneti
related her belief that the Attorney General would give
consideration as to whether the interests of the authority that has
already prosecuted - in most case, the federal government - have
really brought justice to the interests of the State of Alaska.
She cited the cruise ship pollution case as the best example. She
specified that the federal government punishment for the cruise
ship pollution case was fines. She indicated the state also would
be interested in a prosecution from which fines could be collected
for criminal behavior because the pollution had occurred in state
waters.
Number 0730
REPRESENTATIVE ROKEBERG asked why the state could not have pursued
civil remedies instead of criminal ones.
MS. CARPENETI said she supposes that civil remedies could have
pursued, but she doesn't feel comfortable discussing that because
she isn't familiar with that part of the case. She pointed out
that for every case evaluated for prosecution, the following are
reviewed: the harm, the laws, the reasons for the laws, and the
evidence. Much of it is making decisions that [the department]
believes to be the best policy for the state. She believes that
the Attorney General would have liked to have had the choice to
prosecute the cruise ship company for polluting Alaska's waters.
REPRESENTATIVE ROKEBERG referred to the World Plus Ponzi scheme and
asked if the state could pursue civil remedies or other fines under
the [Alaska Securities] Act.
MS. CARPENETI clarified that they are criminal security violations
that the state brought, but which were dismissed because the court
found that the federal and state prosecutions were too similar and
violated the statute.
REPRESENTATIVE ROKEBERG noted that having authored the rewrite of
the Alaska Securities Act, he would point out that fines can be
levied civilly or by administrative adjudication under that Act.
He said he is troubled with both these fact patterns because there
are remedies available to the state other than dual criminal
prosecution.
Number 0879
REPRESENTATIVE CROFT emphasized that because the state is a
separate sovereign entity, it has the power to make things criminal
and should have the power to prosecute those laws and the
violators. Whether the federal government decides to punish a
particular course of conduct lightly or heavily does not affect the
state's sovereign right to decide the appropriate punishment. This
is necessary in order to be able to place the level of punishment
that the legislature has decided for a criminal act. It is a point
of discretion whether the state believes it ought to pursue a
prosecution, regardless of what the federal government does or does
not do.
REPRESENTATIVE JAMES agreed with Representative Croft. The issue
is the sovereignty of the state, she said. Although she believes
Representative Rokeberg's remarks have merit, she emphasized that
she is more distressed with civil penalties after a criminal
penalty than she is with a criminal penalty after a criminal
penalty. She turned to the pollution case and asked if the
"tanker" dumped pollution within Alaska's waters as well as outside
the three-mile limit. Furthermore, was the federal case about
dumping in Alaska's waters or outside Alaska's waters?
MS. CARPENETI related her belief that the case dealt with dumping
both inside and outside of Alaska's waters.
REPRESENTATIVE JAMES commented that [pollution dumped] within
Alaska's waters has the possibility of moving outside of Alaska's
waters. She clarified that she had wondered if dumping inside and
outside of Alaska's waters would result in two different cases.
She remarked that she believes that case is important, and that she
was disappointed that the state was unable to seek criminal action
in the World Plus case, which was a serious breech of Alaska's law.
MS. CARPENETI specified, in response to Chairman Kott, that in the
cruise ship pollution case the federal government had criminally
prosecuted the cruise ship company.
CHAIRMAN KOTT asked if repeal of this particular section of law
would afford the opportunity to pursue prosecution from the state's
standpoint on that particular case. He further asked whether there
is a statute of limitations.
MS. CARPENETI indicated agreement, but noted that there may be a
statute of limitations bar and an ex post facto problem. She said
she would provide an answer as to whether the state is pursuing
[the cruise ship pollution case] as a civil matter.
Number 1174
REPRESENTATIVE GREEN commented that he could not imagine why there
would be any concern with regard to eliminating a bar that the
state had put in place, thereby allowing prosecution by the state
for an offense against the state, whether or not there is federal
prosecution. He does not believe it is double jeopardy.
REPRESENTATIVE ROKEBERG restated that it is "kicking the guy when
he's down" and a de facto double jeopardy, whether legal or not.
He said there must have been a public policy discussion about this
when this legislature put the bars in place.
CHAIRMAN KOTT expressed curiosity regarding why the bar originally
went into effect.
MS. CARPENETI informed the committee that she believes the original
bar was probably in effect before statehood because the general bar
is cited as 1962 in Alaska's statutes. She recalled that 1962 was
when criminal procedures were adopted after statehood.
REPRESENTATIVE GREEN commented that there have been significant
changes in the last 40 years. He does not believe that just
because the law was in place before is a justification that it
should remain.
Number 1322
REPRESENTATIVE MURKOWSKI referred to the fiscal note from the
Public Defender Agency, which says "The United States Department of
Justice has a strict policy against successive state and federal
prosecutions. Presumably, if this bill passed, the Department of
Law would develop similar standards." She related her
understanding that the U.S. Department of Justice has in place what
the state currently has on its books.
MS. CARPENETI clarified that there is no federal bar on
prosecutions after another jurisdiction has prosecuted; however,
that is not done very often. She believes that with the Rodney
King case the federal government prosecuted the defendants after
they were acquitted in state court. Generally, one prosecution is
adequate to bring justice to a situation, but in some cases it is
not. In the pollution cases and some particular cases, the
Attorney General should have the authority to prosecute on the
basis of the interests of Alaskans that were harmed.
CHAIRMAN KOTT asked if there is some interaction between the
Attorney General and the federal prosecutors on cases that involve
both [jurisdictions].
MR. CARPENETI affirmed that.
CHAIRMAN KOTT related his belief that the state, working together
cooperatively with the federal government, could have the state's
issues addressed during the prosecution, which could probably save
the state some time and energy.
REPRESENTATIVE ROKEBERG recalled that in the Rodney King case there
were criminal prosecutions, and the subsequent federal prosecutions
were under civil rights laws.
MS. CARPENETI said she thought they were criminal cases.
REPRESENTATIVE CROFT clarified that it was a criminal violation of
their civil rights.
REPRESENTATIVE ROKEBERG interjected that his point is that there
were two different types of causes of actions, one for assault and
the other being a civil rights violation. There were two different
types of violations, and there was not prosecution for the same
violation.
REPRESENTATIVE CROFT pointed out that there is no generic federal
assault prohibition.
Number 1501
MS. CARPENETI clarified that it would be the same act but a
different statutory basis, because the department prosecutes on the
basis of state law and the federal government prosecutes on the
federal law. The same principles being discussed would apply to a
similar situation in the state; it would not be called the same
crime, but would be based on the same act.
REPRESENTATIVE GREEN asked if Ms. Carpeneti has any idea why this
law was enacted.
MS. CARPENETI said she believes there were probably different
considerations in territorial days, as there are now in the states.
Currently, about half of the states have a similar provision, but
their prosecution is on a county-wide basis, and there is no
coordination between counties. In Alaska, there is a statewide
prosecution system which runs by the same rules and prosecutes by
the same laws, and one person is in charge. It is a different
situation now, although perhaps there were questions regarding
territorial prosecutions versus local prosecutions in territorial
days. She said she was guessing.
REPRESENTATIVE GREEN said he had speculated that there was a bar
because Alaska, as a territory, would have been part of the federal
government, and that would be double jeopardy. Now that Alaska is
a state, an independent sovereign, it is different.
MS. CARPENETI indicated agreement. In response to a question by
Representative Rokeberg, she restated that AS 12.20.010, the
general statutory bar, was continued from territorial days, whereas
AS 11.71.310 is in the drug statutes. She pointed out that her
notes say AS 11.71.310 was adopted in 1982, which was when Alaska's
drug laws were rewritten and adopted. She offered to research
whether AS 11.71.310 was in effect under the state's prior drug
laws.
Number 1689
BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency,
testified via teleconference from Anchorage. Mr. McCune spoke in
opposition to HB 350 due to the issue of double jeopardy, which
doesn't allow successive prosecution. Mr. McCune referred the
committee to the 1852 case of Moore (ph) v. Illinois and told
members that the U.S. Supreme Court had said the federal double
jeopardy clause did not prohibit successive state and federal
prosecutions. He commented that many of our notions regarding
federalism have changed quite a bit.
MR. McCUNE referred to Representative Murkowski's comments about
the fiscal note and its mention of the federal government's policy;
he informed the committee that was alluded to in a more recent 1977
U.S. Supreme Court case, which said, "In response to the court's -
meaning the U.S. Supreme Court's - continuing sensitivity to the
fairness implications of multiple prosecution power, the Justice
Department adopted a policy refusing to bring a federal prosecution
following a state prosecution except when necessary to advance
compelling interests of federal enforcement." Although there is a
lack of federal statute, Mr. McCune stated, it is ameliorated by
the strong federal policy against double prosecutions.
MR. McCUNE turned to the issue of where the law came from. He
related his belief that before statehood, the Alaska Territorial
Legislature had adopted all the criminal procedures and criminal
laws of the State of Oregon; he believes that is probably where
this provision came from. Many Western states have similar
statutes on the books; he believes the reason for those statutes is
basic fairness as well as economics. If there has been an
unsuccessful state prosecution and someone was acquitted, and if
there is a compelling federal interest, the federal government
sometimes prosecutes, he noted, as happened with the Rodney King
case and some others in Alaska. As a matter of fairness and the
tradition of the state having this policy, Mr. McCune said he hopes
that would continue.
Number 1894
CHAIRMAN KOTT pointed out that Mr. McCune, in his fiscal analysis,
had noted that several states including Alaska have traditionally
prohibited this particular measure. He asked whether Mr. McCune
knows how many states that would encompass.
MR. McCUNE reported that he had reviewed the legal text book
"Constitutional Rights of the Accused," which cites California,
Kansas, Nebraska, New Hampshire and New York as all having greater
double jeopardy protections in order to minimize the impact of
multiple jurisdiction prosecutions. Mr. McCune said he believes
that in the World Plus case, the judge cited both Washington and
Oregon precedent; therefore, he believes Washington and Oregon
could be added to the list of states with a bar like Alaska's in
their statutes.
Number 1965
REPRESENTATIVE MURKOWSKI referred to the second paragraph of the
fiscal note, which states that there is a particular concern with
regard to drug cases. She asked why drug cases had been singled
out.
MR. McCUNE expressed concern because with drug cases, there are
many federal drug laws that are very similar to the state laws. If
there were many double prosecutions, that would be an area of
concern.
REPRESENTATIVE JAMES recalled that Mr. McCune had said that [double
prosecutions] would create more expense to the Public Defender
Agency. She asked what happens if there is a federal case first
and a decision, because the Public Defender Agency does not
represent the person in the federal case.
MR. McCUNE agreed that the Public Defender Agency does not
represent people in federal cases. However, if there is an
unsuccessful federal prosecution, this law would allow a successive
state prosecution for the same act.
Number 2062
REPRESENTATIVE JAMES posed a situation in which the federal
prosecution fails and the state comes along. She asked if Mr.
McCune felt that in such a situation the state would also fail and
the money spent in the person's defense would have been for
naught.
MR. McCUNE answered that the Public Defender Agency would expend
the same amount of resources and money whether the person is
convicted or acquitted. In fact, the agency probably spends more
resources if the person is acquitted.
REPRESENTATIVE JAMES said she did not understand Mr. McCune's logic
that this legislation would have a fiscal impact on the Public
Defender Agency.
MR. McCUNE indicated that if the Department of Law's policy or
procedure were such that an acquittal in the federal case would
cause the state to try the case, such a policy would cause more
cases for his agency because the federal acquittal and prosecution
would no longer be a bar to subsequent state prosecution.
REPRESENTATIVE JAMES asked, then, if Mr. McCune is saying that the
state would pick up a case even when the federal prosecution has
not made charges because there is a flaw in the federal
prosecution.
MR. McCUNE indicated he didn't believe that the state would do this
lightly. However, there may be some additional cases that would
require additional resources. He cited the complicated World Plus
case as an example where defending an indigent person would have
resulted in expending considerable resources.
REPRESENTATIVE JAMES commented that if the state has a case, the
Public Defender Agency should not wish to have fewer cases of real
infractions simply because it would have a negative effect on the
agency's ability to perform them.
Number 2204
MR. McCUNE stated that he doesn't believe that the fiscal
implications for the Public Defender Agency should be the deciding
factor in this committee's consideration of HB 350. He assumes
that if the statutes were repealed, the Department of Law would
have a similar policy to that currently held by the federal
government and thus would not bring a lot of the prosecutions.
However, he had wanted to point out in the fiscal note that there
may be some cases that do not exist now.
REPRESENTATIVE JAMES surmised, then, that Mr. McCune is only
indicating it may cost more money but is not disapproving of HB 350
because of that.
MR. McCUNE said that is basically correct. He identified the flaw
of HB 350 as overturning a great amount of tradition of the Western
states. He reiterated that double jeopardy is in the federal and
state constitutions because of basic fairness, and therefore
changing the statutes goes against that basic fairness.
REPRESENTATIVE JAMES concluded that over the last 100 years, the
state's sovereignty has been eaten into. She emphasized the
importance of that sovereignty.
REPRESENTATIVE GREEN indicated agreement. He referred to the first
fiscal note, which says passage of HB 350 is expected to result in
only a handful of new cases per year, but not enough to cause a
fiscal impact on the Department of Law. Representative Green said
that this legislation merely removes a bar so if something horrible
occurs, then the state can prosecute. As mentioned earlier, the
state works very closely with the federal government and thus there
probably would not be very many cases. He pointed out that having
the ability doesn't necessarily mean it will be utilized each time.
REPRESENTATIVE MURKOWSKI related her understanding of the fiscal
note prepared by the Public Defender Agency. If the bar to
successive prosecutions is eliminated, Mr. McCune suggests that the
Department of Law will adopt a policy similar to that of the U.S.
Department of Justice; that is, there would be a policy against
successive prosecutions. However, in the unusual instance, the
state could take steps to address it.
REPRESENTATIVE JAMES indicated she believes the state should not be
denied its action in egregious cases that affect Alaskans and the
people of the United States at the same time. She also agreed that
the state should not kick people when they are down.
REPRESENTATIVE ROKEBERG asked whether it is logical that two trials
cost more than one.
MR. McCUNE said that is correct.
CHAIRMAN KOTT recognized that clearly the bill moves to full
allowance versus full prohibition. If the committee intends to
narrow the scope, he indicated they could specify the
circumstances.
TAPE 00-20, SIDE B
Number 0001
REPRESENTATIVE ROKEBERG announced that right now he opposes HB 350
because there is a case under appeal that should be adjudicated
before laws are passed. He believes the bill will increase the
costs and could allow for prosecutorial abuse regarding an
"environmental crime," for example. Furthermore, he believes it is
de facto double jeopardy and a matter of fairness. He acknowledged
that there is some weight to Representative James' sovereignty
argument.
CHAIRMAN KOTT noted that there were no additional testifiers. He
asked Ms. Carpeneti how HB 350 would affect any open cases where
there has been no prosecution yet.
Number 0078
MS. CARPENETI answered that if a criminal act is complete, and if
there is a federal prosecution, it probably would be a violation of
ex post facto to go ahead and prosecute by the state; however, she
cannot say that for sure without giving it serious thought. Ms.
Carpeneti emphasized that the Attorney General does not intend to
start prosecuting people for what other authorities have already
prosecuted; however, that ability is desired in cases of extreme
public importance and interest. She is sure there would be
policies similar to the federal government's that would guide the
state regarding when those would be appropriate.
MS. CARPENETI said certainly the state won't prosecute drug cases
that the federal government is already prosecuting. The state
doesn't have the resources, and the department already works with
the federal government on these cases. The federal government does
a good job on drug cases; sometimes they give cases to the state,
and sometimes the two work together. It isn't a concern in terms
of being unfair to criminal defendants in Alaska. The purpose of
the bill is to prosecute in the unusual case, like the cruise ship
case and the pyramid scheme already discussed. Ms. Carpeneti added
that about half of the states have a similar statutory bar, but
those states have different considerations because their
prosecution is based on a more local level than Alaska's, as was
discussed earlier. She believes that should be considered when
thinking about what other states do in this regard.
Number 0173
CHAIRMAN KOTT closed public testimony.
REPRESENTATIVE MURKOWSKI remarked that she had talked herself into
this. She had sided with Representative Rokeberg until she
realized that this will only be used in exceptional cases.
Furthermore, she feels more comfortable knowing that the Department
of Law hopefully would have a policy that would essentially
prohibit or restrict successive prosecutions, although HB 350
contains nothing that would indicate that. She wondered whether it
would be appropriate to have a letter of intent to accompany HB
350, which clearly indicates that this would be utilized seldom and
only in exceptional circumstances, where there is a greater state
interest, and that the policy would complement the U.S. Department
of Justice policy, to her understanding of it.
CHAIRMAN KOTT agreed it is possible to either forward a letter of
intent or include that in AS 11.71.310.
REPRESENTATIVE CROFT commented that it is an excellent idea; it
would provide an indication of what was thought to future
legislatures. Regarding the bill's effect on ongoing prosecutions,
he believes the ex post facto constitutional bar of Article I,
Section 15, would prohibit application to any acts that had
occurred before the effective date; because there is no effective
date stated, that would be 90 days from passage. He noted that
case law says an ex post facto law is a law passed after the
occurrence of a fact or commission of an act which retrospectively
changes the legal consequences of the act, which this [bill] would
do. Therefore, he doesn't believe anything could be done about the
World Plus case or the cruise ship pollution case, nor should that
be the ability. Rather, it will just establish it for the future.
REPRESENTATIVE JAMES asked if a letter of intent should be drafted
before the bill is moved out.
CHAIRMAN KOTT stated that with the concurrence of the committee,
the letter of intent could be drafted to accompany the bill.
Number 0360
REPRESENTATIVE JAMES made a motion to move HB 350, with the letter
of intent, as discussed, out of committee with individual
recommendations and the attached fiscal notes. There being no
objection, HB 350, to be accompanied by a letter of intent, was
moved from the House Judiciary Standing Committee,.
CHAIRMAN KOTT called an at-ease at 2:20 p.m. He reconvened the
committee at 2:22 p.m.
HB 304 - CLEAN WATER FUND/DRINKING WATER FUND
Number 0392
CHAIRMAN KOTT announced that the next order of business is HOUSE
BILL NO. 304, "An Act relating to issuance and sale of revenue
bonds to fund drinking water projects, to creation of an Alaska
clean water administrative fund and an Alaska drinking water
administrative fund, to fees to be charged in connection with loans
made from the Alaska clean water fund and the Alaska drinking water
fund, and to clarification of the character and permissible uses of
the Alaska drinking water fund; amending Rule 3, Alaska Rules of
Civil Procedure; and providing for an effective date."
CHAIRMAN KOTT reminded the committee that the last time HB 304 was
heard, there was an amendment offered to which there was an
objection. Upon Chairman Kott's request, Representative Croft
withdrew his objection and Representative Rokeberg withdrew
Amendment 1.
REPRESENTATIVE ROKEBERG announced that he would not be offering the
amendment labeled 1-GH2031\A.2, Cook, 2/18/00, which he had brought
up at the previous hearing.
Number 0428
REPRESENTATIVE ROKEBERG made a motion that the committee adopt
Amendment 3, labeled 1-GH2031\A.3, Cook, 2/25/00, which read:
Page 8, line 23:
Following "assistance to":
Insert "organizations that are not exempted from
regulation under AS 42.05.711(d) and that provide water
service under a certificate of convenience and necessity
from the former Alaska Public Utilities Commission or the
Regulatory Commission of Alaska and to"
Delete "municipal"
Page 9, line 18:
Delete "A"
Insert "An organization that provides water service
under a certificate of convenience and necessity or a"
REPRESENTATIVE GREEN objected for the purpose of discussion.
REPRESENTATIVE ROKEBERG informed the committee that he had met with
representatives from the Department of Environmental Conservation
(DEC) in order to make adjustments to amendments that he had
previously offered. He indicated that the result was to place
further sidebars. He reminded the committee that the original
concept of the amendments was to allow private entities to be
eligible for loan funds for water and sewer from the Clean Water
Fund. The DEC had some concerns, however, and had made some
recommendations, including the recommendation to ensure that the
private utilities are certificated by the Regulatory Commission of
Alaska (RCA) and economically regulated; the need for the latter is
because there is a distinction between certificates issued by the
RCA as to whether they are economically regulated or not.
REPRESENTATIVE ROKEBERG noted that the department also had asked
about prohibiting the refinancing of current debt when an entity is
coming into the loan fund. There was also concern regarding the
establishment of different regulatory criteria for that.
Representative Rokeberg mentioned that he had discussed a different
effective date with the DEC in case it needed time to promulgate
regulations; upon review of the [new] amendments, however, he
observed that they don't include that. He surmised that perhaps a
different effective date is not necessary, according to the
drafter.
Number 0568
CHAIRMAN KOTT pointed out that Amendments 3 and 4 are identical
except that Amendment 4 [labeled 1-GH2031\A.4, Cook, 2/25/00] also
makes a change on page 9, line 27. The additional language in
Amendment 4 read:
Page 9, line 27, following "department.":
Insert "A loan may not be made to an organization
that is not a municipality to refinance debt of that
organization."
CHAIRMAN KOTT asked Representative Rokeberg what his intention is
with the amendments. After Representative Rokeberg indicated some
amendments refer to the clean water section of the bill and some to
the drinking water section, and after confusion was expressed by
various members, Chairman Kott proposed hearing from Dan Easton of
the DEC while Representative Rokeberg reviewed the amendments,
which were arriving by fax at various intervals.
Number 0656
DAN EASTON, Director, Division of Facility Construction &
Operation, Department of Environmental Conservation (DEC), stated
that the Administration is not taking a position on the amendments.
However, Amendment 4 includes most of the areas of improvement
discussed by the DEC with Representative Rokeberg. He commented
that the issues are relatively simple and he had reviewed, as did
Representative Rokeberg, the suggestions of the department. With
regard to the effective date, Mr. Easton explained that if the
department finds itself making a lot of loans to numerous small,
privately owned utilities, the department's workload will be
significantly impacted. Obviously, the program would be designed
in such a way to minimize that; however, there is probably no way
to get around that if the number of loans doubles or triples, and
there will be some fiscal impact.
MR. EASTON pointed out that any fiscal impact on the agency would
have to be reflected as a general fund fiscal note. In the
original bill, there is a funding mechanism. If that funding
mechanism were allowed a year to work, the agency could probably
collect enough money to take on additional work in the fiscal year
2002, and the loan funds could actually be used to pay for that.
A later effective date would also provide more time to set up the
program, write the regulations and make any arrangements necessary
with financing institutions.
MR. EASTON mentioned discussion regarding the possibility of having
the amendments allow - which these amendments do not - some
differentiation when the division makes loans to public and private
utilities. He expressed the need to protect the bond rating for
the fund, which is currently very good. Changing the nature of who
the division makes loans to may affect the bond rating.
MR. EASTON pointed out that private and public utilities also may
need to be segregated for the sake of competition in order to
ensure that each has a reasonable likelihood of success in
receiving the loan. Furthermore, if it costs more to make loans to
private utilities versus public utilities, then it may be necessary
to consider whether there is a need to establish different loan
terms. For example, if it costs more to make loans to private
utilities, then perhaps their interest rates would be higher than
those of public utilities.
Number 0900
REPRESENTATIVE ROKEBERG clarified that he also would be offering
the amendments labeled 1-GH2031\A.2, 1-GH2031\A.4 and 1-GH2031\A.5.
He said everything has been included except the effective date.
Amendment A.5, which had recently arrived by fax, was identical to
Amendment 3 [language provided above] except for the addition of
the following:
Page 10, line 9, following "section.":
Insert "The regulations may establish different
standards, criteria, procedures, and requirements for
loans to organizations that provide water service under
a certificate of convenience and necessity from those
established for loans to municipalities."
CHAIRMAN KOTT, in response to a withdrawal of the objection to
Amendment 3, announced that the committee would table Amendment [3]
and return attention to Amendment 2 in order to address them
sequentially.
Number 0998
REPRESENTATIVE GREEN recognized the desire to protect the bond
rating. He recalled Mr. Easton's testimony at a prior hearing that
the pot of money has more than enough requests already, and that
the DEC uses an evaluation process. Hypothetically, requests
coming from both the private and the public sectors could result in
leaving some public sector requests on the table. He asked: Is
there a possibility that someone could say that the department is
subsidizing a private entity at the expense of a public entity?
MR. EASTON replied that he believes that is the basic policy
question; because it is a fundamental policy decision, that is
probably why the Administration has no position on this now.
Number 1062
REPRESENTATIVE JAMES stated her understanding that it is not the
entity but the ratepayer/customer that receives the advantage.
Therefore, she doesn't find it discriminatory among ratepayers.
She asked what types of private entities exist, surmising that some
exist because there is no municipal entity to serve people. She
also asked whether the DEC's regulations would allow the
opportunity for smaller communities to be co-sponsored, as a
guaranty, by a group such as a regional Native corporation.
MR. EASTON answered that the latter is certainly a possibility.
Currently, the DEC encourages those sorts of arrangements, which
would provide greater certainty of loan repayment.
REPRESENTATIVE JAMES recalled Mr. Easton's mention of setting aside
a certain amount of money for private entities and a certain amount
for municipalities. She asked how Mr. Easton envisions that would
work. Would the DEC establish separate pots of money? Would it be
a percentage? Would it be a percentage of the applicants? Would
the DEC measure the applicants on the basis of need and the health
and safety of the ratepayers?
MR. EASTON said that is the question: If the pie is to be divided,
how and where will it be divided? The DEC believes it might be
wise to ensure that the department has the ability to explore the
possibilities, but they don't have an answer regarding how they
would divide things up. In further response to Representative
James, Mr. Easton indicated all of the things that she had
mentioned would be considered in making the determination on that
issue.
Number 1212
REPRESENTATIVE CROFT commented that he continues to hold his
belief, expressed at the previous hearing, that this is a
government subsidy to a business entity, which is inappropriate
here. Alluding to the Fairbanks utility that apparently had
generated this legislation, he said this is particularly
troublesome because [that utility] was purchased from a public
entity, from the public, under certain conditions that were known
at the time.
REPRESENTATIVE JAMES objected to Representative Croft's comments,
saying she is thinking of rural communities.
REPRESENTATIVE CROFT pointed out that this covers Fairbanks and
others in rural Alaska and elsewhere. The Fairbanks entity is the
one he knows about, because they testified before the committee; it
was purchased from the Fairbanks North Star Borough and the people
of Fairbanks eventually, at a set price, with the idea that it
would have to obtain conventional loans. If this is changed after
the fact to a subsidized loan, in effect Fairbanks should have
received more for the utility back then. He believes it goes to
the profit of that private utility. The loans create an asset
base, which creates the rate base; the larger the rate base can be
made, the larger the rate base is for the profit. Although it
doesn't go directly to that, as testified to at the previous
hearing, it does creates the potential for cheaper loans. He
surmised that the discussion now was aimed at Amendment 2.
CHAIRMAN KOTT stated his understanding that no amendment was
officially before the committee.
REPRESENTATIVE CROFT asked Mr. Easton if it would be easier for the
department to set up the program under the constraints identified,
and then the legislature could, in separate legislation, make
proposals to change the program. At that point, the DEC would know
more about how the loan and bonding work, and what room there is to
bring in more entities. He expressed concern that the DEC would be
doing a whole new project and a whole new addition to it at the
same time.
[REPRESENTATIVE WILLIAMS joined the committee at the table. He did
not speak during the meeting. However, committee packets for HB
304 contained a letter to him as chairman of the DEC Finance
Subcommittee, dated 2/23/00, from Kurt Fredriksson of the DEC.]
Number 1408
MR. EASTON answered that the more time the DEC can have to work and
to design this, the easier it would be for the department.
Number 1452
REPRESENTATIVE MURKOWSKI told members she shares the concern
expressed by Representative Green that there is only one "pie," for
which they are considering bringing in private entities as well.
She asked how the "pie" is divided up currently.
MR. EASTON explained that it is a competitive process. At about
this time every year, the DEC sends out applications to all
municipalities, which then submit the applications. The DEC scores
those applications using the criteria, which are weighted fairly
heavily toward public health but also measure other things such as
whether the loan would result in affordable water systems and
whether it would help the systems comply with the Safe Drinking
Water Act. It is a competitive, ranked-application process.
REPRESENTATIVE MURKOWSKI asked, if these amendments passed, whether
the competitive application process likely would continue but just
include private entities as well, competing for that same limited
pool and possibly leaving out municipalities.
MR. EASTON said that is correct.
REPRESENTATIVE GREEN recalled Mr. Easton's testimony from a prior
hearing indicating that the DEC, in its review of applications for
loans, makes the entity's ability to repay a big consideration.
MR. EASTON answered in the affirmative.
Number 1607
REPRESENTATIVE JAMES asked whether Mr. Easton knows how many
private water systems there are in the state. She commented that
most of the small private water systems that she is thinking of
exist because there is no municipal water system there. She feels
that those folks would be in jeopardy, if their rates are high, to
provide the safety that could be provided in a municipality. She
asked: If the entity could meet the repayment test so that it
doesn't affect statewide bonding, and if there is a health reason
why this money should be loaned, then, according to law, would it
not be true that the beneficiaries of this low-interest loan must
be the ratepayers?
MR. EASTON deferred to the RCA for an explanation of what it means
to be RCA-regulated. Generally, he said, he knows that it is part
of the RCA's responsibility to review and regulate the profits and
how the savings are distributed with public utilities.
REPRESENTATIVE JAMES restated her belief that these low-interest
loans must benefit the ratepayers, not the municipalities or the
private owners of water systems. It is from that position that she
is arguing that point, she added.
MR. EASTON said that is his understanding as well. However, he
doesn't know the extent to which RCA regulations protect the
consumers and require that profits be passed on to them. In
discussions with people over the last few days, he has found some
divergence in opinion on that point. Again, he recommended that
the answer come directly from the RCA.
Number 1791
REPRESENTATIVE MURKOWSKI asked if Mr. Easton knows how many of the
smaller utilities are regulated by the RCA.
MR. EASTON related his understanding that the RCA currently
regulates every water and sewage utility that has ten or more
service connections and provides that service for compensation. He
estimated that there are 600-700 drinking water systems in the
state. Using round numbers, if there are 250 communities, one
could assume that the balance is largely private utilities.
CHAIRMAN KOTT announced that the committee could take up the
amendments. He stated his understanding that Amendment 3 had been
withdrawn earlier.
Number 1893
REPRESENTATIVE ROKEBERG made a motion that the committee adopt
Amendment 2 [1-GH2031\A.2, Cook, 2/18/00], which read:
Page 1, line 2, following "projects,":
Insert "to the Alaska clean water fund,"
Page 7, following line 13:
Insert a new bill section to read:
"* Sec. 18. AS 46.03.032(p)(1) is amended to read:
(1) "other qualified entity" means an
entity that is not a municipality with a project
that is eligible for assistance under
[INTERMUNICIPAL OR INTERSTATE AGENCY AS THOSE TERMS
ARE USED IN] 33 U.S.C. 1383 [, AND MAY INCLUDE AN
AUTHORITY, CORPORATION, INSTRUMENTALITY,
ENTERPRISE, OR OTHER ENTITY FORMED THROUGH AN
AGREEMENT BETWEEN A MUNICIPALITY AND ONE OR MORE
OTHER GOVERNMENTAL ENTITIES UNDER AS 29.35.010(13)
OR UNDER ART. X, SEC. 13, CONSTITUTION OF THE STATE
OF ALASKA, OR BETWEEN A MUNICIPALITY AND A REGIONAL
HOUSING AUTHORITY UNDER AS 18.55.996(b)];"
Renumber the following bill sections accordingly.
Page 11, line 30:
Delete "22"
Insert "23"
Page 11, line 31:
Delete "Section 24"
Insert "Section 25"
CHAIRMAN KOTT noted that there was an objection to Amendment 2.
REPRESENTATIVE ROKEBERG explained that Amendment 2 would add the
definition of "other qualified entity," which would allow the
inclusion of private entities under this bill.
REPRESENTATIVE CROFT said he had the same philosophical objections
stated earlier under general discussion. He pointed out that there
had been testimony at an earlier hearing from the Anchorage Water
& Wastewater Utility (AWWU) and the equivalent water utility in
Juneau. The AWWU representative basically had said it had not
raised its rates in eight years because of access to these low-cost
loans. Already the demand exceeds the supply, and if many more
people are added to the line, depending upon how they compete, the
rates may have to be raised because of the lack of the 4 and 5
percent loans. Therefore, he pointed out, that would have a direct
impact on consumers in his district.
REPRESENTATIVE CROFT reiterated his belief that this would
subsidize a private business and the profits of a private business
that was purchased from the people for a set price, which did not
include those subsidized loans. With subsidized loans, an entity
can increase its asset base that provides the rate base that
provides the allowable profit. For him, the fundamental question
is a financial one, especially for his constituents in Anchorage
and Representative Kerttula's constituents in Juneau. He believes
this discussion and these amendments would best be heard in the
House Finance Committee.
REPRESENTATIVE ROKEBERG commented that this is not a new program.
Furthermore, he lives where Representative Croft lives, and there
is a private water system; those are Representative Croft's
constituents as well. He turned to the situation in Fairbanks and
the AWWU testimony, saying that over the course of the last eight
years when there were no rate increases in Anchorage, Fairbanks was
in the competition and had only dropped out a few months ago. The
issue here is fairness, the ability of all citizens in Alaska to
access it based on the criteria for public health established by
the department.
REPRESENTATIVE GREEN asked what other sorts of loans lending
institutions are giving now. For example, would the Alaska
Industrial Development and Export Authority (AIDEA) or some other
state lending institution be able to satisfy the need private
entities have for lower-rate loans?
MR. EASTON said he did not know.
REPRESENTATIVE GREEN agreed with Representative Croft that this has
moved into a financial discussion.
TAPE 00-21, SIDE A
REPRESENTATIVE JAMES explained why she supports Amendment 2. She
sees this as a policy issue having nothing to do with the fiscal
note. This is a safe water issue. Every citizen of Alaska who has
a water system, whether privately or municipally owned, and who
would meet the qualifications in this bill, should be entitled to
this low-rate loan. She believes the DEC will prioritize the
applications for this fund. She also believes that for the
committee to think of any specific group of people or [company] is
misleading.
CHAIRMAN KOTT acknowledged that some people view this as private-
sector people competing for public dollars.
Number 0243
REPRESENTATIVE CROFT clarified that he wasn't implying that this is
out of order in this committee. He believes that adding 600 new
people who want part of this "pie" will affect the consumers that
have been using it in the Anchorage area principally. To his
understanding, loans to a diverse group of people will be very
different from the experience with loans to municipalities, which
have been stable and good at repaying. The loans to such
municipalities have resulted in competitive rates. Under this, it
would be an entirely new situation. He reiterated his concern with
the fiscal issues that would be best discussed in the House Finance
Committee. However, he stated that at this stage he doesn't want
to hold up this bill for those facts.
Upon a roll call vote, Representatives Rokeberg, James and Kott
voted in favor of the adoption of Amendment 2, and Representatives
Murkowski, Croft and Green voted against it. Therefore, Amendment
2 failed to be adopted by a vote of 3-3.
REPRESENTATIVE ROKEBERG [referring to the interrelationship of the
amendments] commented that if one amendment fails, then they all
fail.
Number 0443
REPRESENTATIVE JAMES made a motion that HB 304 be held to the next
meeting in order to receive additional information that has been
requested by those who object to the amendment. She restated that
this is a fairness issue.
CHAIRMAN KOTT said that could be a possibility; however, the bill
has a House Finance Committee referral, and it has a number of
hurdles before reaching the Senate, where it would also receive
scrutiny. Chairman Kott directed the committee's attention to the
letter dated February 23, 2000 [addressed to Representative
Williams, chair of the DEC budget subcommittee]. Chairman Kott
noted that he and Representative Croft sit on that subcommittee.
He explained that in response to his own inquiry as to what HB 304
could potentially save in general fund dollars, that letter says HB
304 could save up to $600,000; Chairman Kott noted that he would
like a portion of that savings to be put towards food and
sanitation inspections. Therefore, his only concern is that he
doesn't want to see this bill belabored to the extent that the
state loses out on some savings. However, he would follow the will
of the committee.
Number 0614
REPRESENTATIVE MURKOWSKI commented that HB 304 has been debated
adequately, and nothing would prevent movement of the amendment in
the House Finance Committee, where additional information could be
obtained. She pointed out that she also had heard HB 304 in the
House Community & Regional Affairs Committee, where she liked it,
and she wants to see it move forward. As one who voted against the
amendment, she doesn't know whether any additional information
would change her mind in the next week or so.
REPRESENTATIVE GREEN agreed that bringing up the amendments in the
House Finance Committee would be appropriate.
REPRESENTATIVE CROFT concurred, pointing out that the House Finance
Committee is co-chaired by a member from Fairbanks. He said he
doesn't want to hold HB 304 any longer.
REPRESENTATIVE JAMES reiterated her objection to this being
considered a Fairbanks issue, saying it is a statewide issue of
fairness.
Number 0797
REPRESENTATIVE ROKEBERG made a motion to report HB 304 out of
committee with individual recommendations and attached fiscal
notes.
REPRESENTATIVES JAMES and ROKEBERG objected.
REPRESENTATIVE ROKEBERG commented that the bill should be amended,
and those in Spenard who have private water systems should be able
to compete for low-interest loans.
Upon a roll call vote, Representatives Croft, Green, Murkowski and
Kott voted in favor of reporting HB 304 out of committee and
Representatives Rokeberg and James voted against reporting HB 304
out of committee. Therefore, HB 304 was reported out of the House
Judiciary Standing Committee by a vote of 4-2.
CHAIRMAN KOTT requested that he be allowed to submit the letter of
February 23, 2000, to the House Finance Committee and to recommend
that the fiscal parameters be scrutinized with the notion that
perhaps additional funds could be placed in the food inspection
area; there were no objections to the request. [HB 304 was moved
out of the committee.]
HB 368 - RELEASE OF CRIMINAL DEFENDANT
CHAIRMAN KOTT announced that the final order of business before the
committee is HOUSE BILL NO. 368, "An Act relating to release of
persons before trial and before sentencing or service of sentence;
relating to custodians of persons released, to security posted on
behalf of persons released, and to the offense of violation of
conditions of release; amending Rule 41(f), Alaska Rules of
Criminal Procedure; and providing for an effective date."
Number 0917
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section-Juneau, Department of Law, explained that HB
368 would allow the courts more creative means with regard to
having people released after being charged with a crime pending
trial, pending sentencing, or pending service of sentencing. At
the same time, the public and the victim would be protected.
Furthermore, the bill would ensure that the defendant will be
present for court trials or other court appearances.
MS. CARPENETI informed members that HB 368 accomplishes this in
four ways. First, it specifically allows for a court to impose a
performance bond on a person charged with a crime. A performance
bond requires a person to pay an amount of money into the court.
Furthermore, the judge orders the defendant to abide by conditions
such as not drinking, not contacting the victim, not violating
laws, and other specific conditions as apply to the particular
case. If the defendant does not abide by the conditions, the bond
can be forfeited. This is a monetary way to encourage defendants
to abide by the conditions of their release. Ms. Carpeneti noted
that judges in the First Judicial District have been using
performance bonds for years. On February 18, she noted, the Court
of Appeals found that Alaska's statutory language in Title 12,
Chapter 30, does not in fact allow judges to use performance bonds.
MS. CARPENETI explained that another way to allow people to be
released pending trial is to appoint a third-party custodian who
agrees to be responsible for the defendant. The custodian is
required to report to the judge or the police if the defendant has
violated a condition of release. Although most custodians take
their responsibility seriously, some do not. She pointed out that
HB 368 provides that a third-party custodian must be warned that
failure to immediately report violations of the defendant's
conditions can place [the third party] in contempt of court.
MS. CARPENETI advised members that HB 368 also encourages the
defendant to abide by the conditions of release because it adopts
a class A misdemeanor offense for violation of conditions if the
defendant has been charged with a felony offense. For defendants
charged with a misdemeanor offense who have violated the conditions
of release, HB 368 imposes a class B misdemeanor; the Municipality
of Anchorage has a similar ordinance, which the prosecutor has
indicated is a very effective tool. Ms. Carpeneti explained that
often when the court sentences a person for a crime, the sentence
is set for a later date, which can be for the convenience of the
defendant or the corrections system. Therefore, HB 368 clarifies
that the court has the authority to do what it is already doing.
MS. CARPENETI returned to the issue of performance bonds. She
reported that when a person violates the conditions of release in
connection with a prohibition against contacting the victim, HB 368
provides for forfeiture of the security posted. It also allows the
court to forfeit the security if the defendant violates other
conditions not necessarily related to contacting a victim or
witness; the legislation clarifies the court rule in this regard.
Ms. Carpeneti concluded that HB 368 allows people to be released
while at the same time protecting the public.
Number 1229
CHAIRMAN KOTT asked if there is ever a situation in which a
defendant is released to a third party who is his or her spouse.
MS. CARPENETI replied yes. However, that would not be preferred in
a lot of domestic violence (DV) cases. She recognized that it can
be a problem because it is a difficult responsibility, and it is
difficult to turn in a family member.
CHAIRMAN KOTT inquired as to the reasoning behind the 10 percent
allowed to be charged as a performance bond, found on page 4, lines
13-16.
MS. CARPENETI pointed out that the same language appears on page 4,
lines 7-10, regarding an appearance bond. She believes that
historically the 10 percent posting was to allow people to be
released without having a bail bondsman. Ms. Carpeneti said she
had thought of suggesting that the language in paragraph (6) be
deleted in order to allow the court to impose a certain amount
rather than 10 percent. She indicated it is rare that a person who
posts 10 percent violates the conditions and then comes up with the
remainder of the bond; therefore, it is probably more practical to
allow the court to set a certain amount. She proposed deleting the
following language on page 4, paragraph (6): "in cash or other
security" and "of a sum not to exceed 10 percent of the amount of
the bond; the deposit".
MS. CARPENETI informed the committee of the following suggestion by
Mr. Wooliver of the Alaska Court System. Usually, immediate
effective dates are avoided when dealing with court rule changes.
Therefore, removing the immediate effective date is suggested
because it is difficult for the court system to adopt rules when
there is an immediate effective date.
CHAIRMAN KOTT related his understanding that if a third party paid
the performance bond, it would be 10 percent under the bill, or
the defendant could also pay the 10 percent. Although he supports
that percentage regarding a third party, he also supports raising
the threshold for the defendant up to 20-25 percent. The two would
be different because there are different obligations for the
defendant and the third party.
Number 1490
MS. CARPENETI responded that it is probably best to set a smaller
amount and to have whoever is paying the security pay the entire
amount. She said this is an incentive.
REPRESENTATIVE GREEN expressed concern and asked whether this
stringent approach would make it more difficult to obtain bonds.
He indicated that if he owned a bonding agency, he would be a
little apprehensive about whom the agency allows bonds for.
MS. CARPENETI agreed that increased difficulty is possible.
However, there is still the possibility of an appearance bail bond,
which could be separate from a performance bond. She restated that
the performance bond would be based on performing the conditions of
release, while the bail bond would be based on the appearance.
REPRESENTATIVE GREEN recognized that the bill would add the
performance bond. He posed the situation in which the defendant
would [feel freer to] violate a condition of release, such as
drinking alcohol, because someone else would have posted the bond.
MS. CARPENETI said that is always the case in a custodial
relationship, and that is why sometimes the custodian calls the
court and requests that the defendant be taken back.
Number 1621
REPRESENTATIVE GREEN asked Ms. Carpeneti's opinion of inserting the
word "reasonable" before "date" on page 5, line 24.
MS. CARPENETI agreed that the court would probably feel that any
date that it would give would be a reasonable date. She restated
that the purpose of having a person begin service on another date
would be to accommodate the defendant, generally. However,
sometimes that accommodation is for the correctional system, which
at times likes to organize people's reporting to them in order to
avoid having too few beds, for example. The courts also try to
accommodate a defendant who requests accommodations for work.
Number 1750
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and
Sexual Assault (ANDVSA), informed the committee that the ANDVSA
supports HB 368 because the third party-custodian has a serious
responsibility. Often in misdemeanor domestic violence cases,
people are released to a third-party custodian. The ANDVSA
particularly appreciates Section 4, which requires the courts to
inform the custodians about their responsibilities and possible
consequences for neglecting those. However, Ms. Hugonin expressed
concern that "inform" may merely mean in writing, on a form that
the custodian has filled out in agreement of this. She believes
the court should have to verbally explain the responsibilities to
the potential third-party custodian.
MS. HUGONIN indicated the need to better define other consequences
that the third-party custodian would face for failure to notify the
court of violations. The ANDVSA would also be interested in
prohibiting an individual from being a third-party custodian again
if that person has been held in contempt of court for failure to
notify the court [of a violation of the conditions of release].
MS. HUGONIN pointed out the need to have some limit on the
eligibility for a third-party custodian. Furthermore, she
recommended prohibiting a third-party custodian from being a
custodian for more than one person at a time. In the rural areas,
she noted, there have been instances in which an individual has
agreed to be a third-party custodian for two or three persons at
once; that would seem to be problematic. In conclusion, Ms.
Hugonin noted that ANDVSA particularly likes the forfeiture section
regarding the contact of the victim, which seems to be a further
protection.
Number 1936
BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency,
testified via teleconference from Anchorage. He related his
experience that commercial bonding corporations do not write
commercial bonds for performance-type bonds, although they will
write bonds for failure to appear. Therefore, this [HB 368] speaks
to bonds that will be executed by the defendant or the defendant's
family. In most cases, the defendant will not have the resources
to post the bond and thus would depend on the his/her family to do
so.
MR. McCune referred to the 10 percent provision on page 4,
paragraph (6). He related his experience that 10 percent is a set
figure in court rules and statutes. The court can adjust the total
amount of the bond to be greater in order to obtain a greater
amount from the 10 percent; the court receives that 10 percent,
under the current law, if the individual fails to appear, and can
seek the rest of the money.
MR. McCUNE expressed his belief that HB 368 would hold more people
in jail. He also voiced concern that the courts would overuse
this. He noted that the third-party release inserted in statute
quite a few years ago has become more of the rule rather than the
exception. The agency believes that performance bonds will be
issued in every case. Furthermore, this will be a hardship on the
defendant as well as his/her family. Mr. McCune pointed out that
defendants asking for bail are not in good bargaining positions
because they are in jail.
MR. McCUNE addressed technical points. He directed attention to
page 6 and pointed out that the direct court rule amendment with
regard to forfeiture says that the defendant shall forfeit the
security if the defendant violates a condition of release by
knowingly or intentionally contacting a victim or witness.
However, he guessed that [forfeiture] of the performance bond could
happen due to any [violation] of a condition of release.
Therefore, there could be a situation in which a performance bond
is written for not consuming alcohol, yet the forfeiture would be
restricted to the contact of the victim or witness. He said that
would make sense to some degree, in that one would not want to
forfeit a performance bond for the more minor infractions of the
conditions of release.
MR. McCUNE turned attention to the remission portion. He referred
to page 5 and indicated concern that if someone who had put up a
performance bond were ten minutes late for a curfew, the judge
could put that person in jail and then not take all of the bond,
for example. In contrast, the remission section on page 7 still
has the old "failure to appear" language on lines 7-9.
MR. McCUNE referred to page 4, lines 26-29, and commented that the
language had caught him by surprise. He thought that if a person
failed to appear for a felony, that person would be charged with
felony. However, this seems to say that if someone who is charged
with a misdemeanor fails to appear for sentencing or violates an
appeal bond, the individual would be found guilty of a felony when
the [original] charge is a misdemeanor.
Number 2235
MR. McCUNE turned to page 3 and the new crime under the "Violation
of condition of release." Currently, if someone violates a
substantial condition of release, the person is returned to jail
and the bail is increased. However, this makes a separate crime
for doing that and takes the authority from the judge; the
prosecution would now have the authority to charge the person with
a crime for being ten minutes late. He indicated he expects that
the prosecution would show some prosecutorial discretion on these
matters. He said the agency believes the current system deals with
these situations adequately.
REPRESENTATIVE GREEN asked about the location of the language to
which Mr. McCune referred on page 4. He said he reads the language
to say that a violation [for failure to appear] would be punishable
as a misdemeanor.
MR. McCUNE referred to page 4, line 26, "or while awaiting
sentence". He said he interprets that to refer to while awaiting
any sentence, whether for a felony or a misdemeanor.
REPRESENTATIVE GREEN suggested that refers to a charge of a felony,
while paragraph (2) speaks to a charge of a misdemeanor that would
be considered as such.
MR. McCUNE noted that a judge from Fairbanks had brought this up;
the judge had felt that because "before sentence" on page 4, line
26, didn't specify a felony sentence, it would apply to a sentence
for both felonies and misdemeanors. He believes that the judge
reasoned that a court would view failure to appear for sentencing
as more serious than failure to appear for a trial or a hearing.
Perhaps this could be clarified by deleting the language after "or"
through to "offense," Mr. McCune suggested.
Number 2389
REPRESENTATIVE CROFT requested clarification.
MS. CARPENETI pointed out that this statute has been in effect
since 1966, and this merely makes amendments to cross-reference the
forfeiture of security on line 24, page 4. The language has always
been interpreted to mean that failure to appear in connection with
a felony would mean that person would be charged with a felony,
which would be the case with failure to appear with a misdemeanor
as well.
MS. CARPENETI referred to page 5, "Forfeiture of security." On
line 11 of page 5, it provides that the court has discretion to
forfeit any security if there is a violation of other conditions.
If the court forfeits all or part of a security, then subsection
(c), line 15, page 5, takes effect. It is not a mandatory
forfeiture, except if the defendant violates a condition about
contact; even then, the defendant can ask for a hearing and show
that the contact was not knowing or intentional, in which case the
court has the authority to remit the forfeiture.
CHAIRMAN KOTT asked if there were further questions. There being
none, HB 368 was held for further consideration.
ADJOURNMENT
Number 2478
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:45 p.m.
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