02/02/2004 01:10 PM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 2, 2004
1:10 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 9
Proposing amendments to the Constitution of the State of Alaska
relating to an appropriation limit and a spending limit.
- MOVED CSHJR 9(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 342
"An Act relating to driving while intoxicated; and providing for
an effective date."
- HEARD AND HELD
HOUSE BILL NO. 227
"An Act increasing the jurisdictional limit for small claims and
for magistrates from $7,500 to $10,000; increasing the
jurisdictional limit of district courts in certain civil cases
from $50,000 to $75,000; and amending Rule 11(a)(4), Alaska
District Court Rules of Civil Procedure, relating to service of
process for small claims."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 349
"An Act amending Rule 412, Alaska Rules of Evidence."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HJR 9
SHORT TITLE: CONST AM: APPROPRIATION/SPENDING LIMIT
REPRESENTATIVE(s): STOLTZE
01/31/03 (H) READ THE FIRST TIME - REFERRALS
01/31/03 (H) STA, JUD, FIN
02/11/03 (H) STA AT 8:00 AM CAPITOL 102
02/11/03 (H) Heard & Held
02/11/03 (H) MINUTE(STA)
04/04/03 (H) W&M REFERRAL ADDED BEFORE STA
04/09/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519
04/09/03 (H) Heard & Held
04/09/03 (H) MINUTE(W&M)
04/17/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519
04/17/03 (H) Heard & Held
04/17/03 (H) MINUTE(W&M)
04/24/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519
04/24/03 (H) Heard & Held
04/24/03 (H) MINUTE(W&M)
04/29/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519
04/29/03 (H) Heard & Held
04/29/03 (H) MINUTE(W&M)
04/30/03 (H) W&M AT 8:00 AM HOUSE FINANCE 519
04/30/03 (H) Heard & Held
04/30/03 (H) MINUTE(W&M)
05/02/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519
05/02/03 (H) Moved CSHJR 9(W&M) Out of Committee
05/02/03 (H) MINUTE(W&M)
05/02/03 (H) W&M RPT CS(W&M) NT 3DP 2NR 2AM
05/02/03 (H) DP: HEINZE, WHITAKER, HAWKER;
05/02/03 (H) NR: MOSES, GRUENBERG; AM: KOHRING,
05/02/03 (H) WILSON
05/06/03 (H) STA AT 8:00 AM CAPITOL 102
05/06/03 (H) Scheduled But Not Heard
05/06/03 (H) JUD AT 5:30 PM CAPITOL 120
05/06/03 (H) -- Meeting Canceled --
05/06/03 (H) STA AT 5:30 PM CAPITOL 102
05/06/03 (H) -- Meeting Canceled --
05/07/03 (H) STA AT 8:00 AM CAPITOL 102
05/07/03 (H) Heard & Held
05/07/03 (H) MINUTE(STA)
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) <Bill Hearing Postponed>
05/08/03 (H) STA AT 8:00 AM CAPITOL 102
05/08/03 (H) Moved CSHJR 9(STA) Out of Committee
05/08/03 (H) MINUTE(STA)
05/08/03 (H) STA RPT CS(STA) NT 3DP 3NR
05/08/03 (H) DP: SEATON, LYNN, DAHLSTROM;
05/08/03 (H) NR: GRUENBERG, HOLM, WEYHRAUCH
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
05/08/03 (H) <Bill Hearing Postponed>
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (H) Heard & Held
05/09/03 (H) MINUTE(JUD)
05/12/03 (H) JUD AT 1:00 PM CAPITOL 120
05/12/03 (H) <Bill Hearing Postponed to Wed.
5/14/03>
05/14/03 (H) JUD AT 1:00 PM CAPITOL 120
05/14/03 (H) Heard & Held
05/14/03 (H) MINUTE(JUD)
05/15/03 (H) JUD AT 8:30 AM CAPITOL 120
05/15/03 (H) -- Meeting Canceled --
10/29/03 (H) JUD AT 5:00 PM Anch LIO Conf Rm
10/29/03 (H) Heard & Held
10/29/03 (H) MINUTE(JUD)
10/29/03 (H) MINUTE(JUD)
01/23/04 (H) JUD AT 1:00 PM CAPITOL 120
01/23/04 (H) Heard & Held
01/23/04 (H) MINUTE(JUD)
02/02/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 342
SHORT TITLE: INCREASE DRIVING UNDER INFLUENCE PENALTY
REPRESENTATIVE(s): GATTO
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
02/02/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE BILL STOLTZE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HJR 9.
KELLY HUBER, Staff
to Representative Bill Stoltze
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HJR 9, on behalf of
the sponsor, presented Version B.
CHERYL FRASCA, Director
Office of Management & Budget (OMB)
Office of the Governor
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HJR 9.
REPRESENTATIVE CARL GATTO
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as the sponsor of HB 342.
CODY RICE, Staff
to Representative Carl Gatto
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as staff to the sponsor of HB 342
and as a former employee of Community Services Patrol in
Anchorage.
CINDY CASHEN, Executive Director
Juneau Chapter
Mothers Against Drunk Driving (MADD)
Juneau, Alaska
POSITION STATEMENT: Representing the MADD chapters from
Anchorage, Fairbanks, Matanuska-Susitna ("Mat-Su") valley, and
Juneau, announced MADD's support of HB 342, provided comments,
and responded to questions.
LINDA WILSON, Deputy Director
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Suggested, during discussion of HB 342,
that perhaps the committee could review making more incentives
for people to obtain treatment rather than imposing more
penalties.
ACTION NARRATIVE
TAPE 04-9, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:10 p.m. Representatives
McGuire, Holm, Ogg, Samuels, and Gruenberg were present at the
call to order. Representatives Anderson and Gara arrived as the
meeting was in progress.
HJR 9 - CONST AM: APPROPRIATION/SPENDING LIMIT
Number 0057
CHAIR McGUIRE announced that the first order of business would
be HOUSE JOINT RESOLUTION NO. 9, Proposing amendments to the
Constitution of the State of Alaska relating to an appropriation
limit and a spending limit. [Before the committee was the
proposed committee substitute (CS) for HJR 9, Version 23-
LS0435\X, Cook, 1/22/04, which was adopted as a work draft on
1/23/04.]
Number 0063
REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, sponsor,
indicated that his staff would be presenting a new proposed CS.
Number 0089
REPRESENTATIVE SAMUELS moved to adopt the proposed CS for HJR 9,
Version 23-LS0435\B, Cook, 1/27/04, as the work draft.
The committee took an at-ease from 1:12 p.m. to 1:13 p.m.
Number 0109
KELLY HUBER, Staff to Representative Bill Stoltze, Alaska State
Legislature, sponsor, relayed that Version B contains some basic
changes that were discussed at the resolution's last hearing.
For clarification purposes, the title has been changed to
correctly reflect the contents of the resolution. On page 2,
line 11, the word "natural" has been inserted to reflect that
the exemption listed in proposed Section 16(c)(3) of Article IX,
Alaska State Constitution, pertains to "a state of natural
disaster". Proposed Section 16(c)(6) has been changed such that
it no longer pertains to general obligation (GO) bonds. Also
for clarification purposes, should the legislature decide to
appropriate additional funds via a three-quarter affirmative
vote, proposed Section 16(c)(11) states that such would be
excluded from the base calculation outlined in proposed Section
16(a). Additionally, proposed Section 16(b) now contains the
language regarding appropriating additional funds via a three-
quarter vote. Ms. Huber relayed that the drafter had indicated
to her that placing that provision before the one pertaining to
the exemptions would satisfy the committee's concerns and help
the resolution "read" smoother. And although there had at one
point been discussion regarding university tuition, Version B
does not contain any other changes.
CHAIR McGUIRE noted that HJR 9 has been referred to the House
Finance Committee, which, she suggested, might be the more
appropriate venue for discussion of certain aspects of the
resolution. She expressed a preference for allowing the bill to
move on to that committee for further review.
REPRESENTATIVE STOLTZE expressed his appreciation to the
committee for its time, efforts, and debates on HJR 9.
Number 0395
REPRESENTATIVE SAMUELS again moved to adopt the CS for HJR 9,
Version 23-LS0435\B, Cook, 1/27/04, as the work draft.
Number 0411
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
MS. HUBER, in response to a question, confirmed that the
language in proposed Section 16(b) of Version B is the same
language in proposed Section 16(c) of Version X. She relayed
that there were no substantive changes made to that language;
instead, it was merely moved to a different location for
clarity. She relayed that the drafter is of the opinion that
the language itself is sufficiently clear, and moving it to its
current location in Version B would assist voters in
understanding how the process would work.
REPRESENTATIVE GRUENBERG removed his objection.
CHAIR McGUIRE asked whether there were further objections to
adopting Version B as the work draft. There being none, Version
B was before the committee.
Number 0541
REPRESENTATIVE OGG [made a motion to adopt] Amendment 1, a
handwritten amendment that read [original punctuation provided]:
p 2
Line 26 after ;
new line 27 new #(11)
an appropriation of money from tuition of the
University of Alaska;
renumber (11) to (12)
Number 0582
CHAIR McGUIRE objected for the purpose of discussion. She noted
that at the resolution's last hearing, the representative from
the Office of Management & Budget (OMB) had commented that there
is a tendency, when exemptions are created, to shift money into
those exemptions.
REPRESENTATIVE STOLTZE said he understood the motivation behind
Amendment 1 and relayed that he doesn't have a lot of problems
with it as an individual change. He pointed out, however, that
he is not sure what such a change could lead to, and predicted
that the issue would be taken up again in the House Finance
Committee.
CHAIR McGUIRE said she did not have a lot of problems with
Amendment 1, and surmised that many members are supportive of
the university.
Number 0686
CHERYL FRASCA, Director, Office of Management & Budget (OMB),
Office of the Governor, noted that at a prior hearing, she'd
cautioned against using the term, "university receipts" because
it would create a much broader category of exemption. She
surmised that Amendment 1 appears to be specific to tuition.
She pointed out, however, that from a policy point of view,
Amendment 1 appears to be saying that it's okay for university
tuition to "go up greater than the change in the escalators for
the limit itself."
CHAIR McGUIRE indicated that the legislature probably has an
interest in seeing Alaska's state-run university be successful.
She surmised, though, that if tuition went up too high, then
enrollment would drop.
REPRESENTATIVE SAMUELS expressed a concern that in the future,
monies might be called tuition simply so that they would be
excluded from the calculation. He asked Ms. Frasca whether
"tuition" is currently defined.
MS. FRASCA said she did not know whether "tuition" is currently
defined, but opined that the [meaning of the word] is pretty
well understood. She suggested that that issue be researched
before the resolution gets to the House Finance Committee in
order to ensure that the intent of Amendment 1 is maintained.
REPRESENTATIVE OGG, in response to an inquiry, said:
In court decisions, [the university has] been
recognized ... as a quasi branch of the government, so
they're not like an agency; they're a little
different. So, like the [Alaska] Court System, the
executive, and like the legislature, they have a
special place in the [Alaska State] Constitution. ...
It says is that there shall be a University of Alaska,
that [the] University of Alaska shall be governed by a
board of regents, and that [that] board of regents
will hire a president who shall be the executive
officer of the board. ...
Number 0901
And what does that actually mean in terms of how the
university operates? It means that the university
really has, [on] its own, ... legislative powers, ...
a taxing power, and ... judicial powers. And
underneath their taxing powers, the issue of tuition
comes up. They also have the ability to set their own
fees, not subject to the state. And the philosophical
underpinnings of these are that if you want your
university to have a certain independence from the
political process, [when you] start to change the
[Alaska State] Constitution as to appropriations and
put limits on appropriations - which is the power of
the legislature, to appropriate - and you spread it
across the whole spectrum, then you start to impact
the different parts in the [Alaska State]
Constitution.
And the way we read this, the other day, it impacts
the taxing power of the university to independently
fund itself [with] tuition. And tuition is a word of
art that the university gives worth to, and it's the
charge per credit hour that a student will pay for,
and it's set on an annual basis. And it's not ... an
easy thing to set that tuition rate because you have
to balance ... how much folks can pay, and if you go
too high, then less folks will attend the university,
and [so] we don't want that cost to be too high.
However, you have to have a university that has [the]
ability to respond to events that takes place
economically in the state, and if you take this
ability away from them, you're starting to hamper
their ability to respond independently to actions of
the legislative branch of ... government.
REPRESENTATIVE OGG concluded:
So, I think that the university does have a clear idea
of what tuition is. It's different than fees - they
have a category for fees. They also have receipts,
... and federal receipts and those kinds of things are
fairly undefined ... [as are] fees .... But if we
narrowed this amendment down to tuition, then it's
fairly clear what we're talking about .... So I think
it's appropriate to put it in here as an exception;
[Amendment 1] allows the university to continue the
work that they've been defined to do under the [Alaska
State] Constitution.
Number 1063
REPRESENTATIVE GRUENBERG, noting that endowments can assist in
making universities largely self sufficient, asked whether the
sponsor would accept a friendly amendment to broaden Amendment 1
so that it would pertain to revenues such as endowments. If
such is not done, he warned, then those funds would simply go
into the general fund (GF), rather than to the university as
intended, and this would undercut the university's ability to
raise money and possibly largely free itself from state funding.
REPRESENTATIVE OGG indicated that he would prefer to limit the
exemption to tuition.
CHAIR McGUIRE suggested that Representative Gruenberg speak with
Representative Eric Croft, a member of the House Finance
Committee, about possibly exempting endowments.
Number 1271
CHAIR McGUIRE removed her objection to Amendment 1, adding that
she does not support broadening it. She asked whether there
were further objections to Amendment 1. There being none,
Amendment 1 was adopted.
Number 1394
REPRESENTATIVE GARA made a motion to adopt Amendment 2, a
handwritten amendment that read [original punctuation provided]:
Delete at p. 1 line 8 ,
"fifty percent of"
Number 1400
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA, in explanation of Amendment 2, said:
[Amendment 2] addresses what I think is a structural
problem with this spending cap proposal. ... You can
enact policy, as the public's elected representatives,
through logic or by formulas. And I think there's a
problem when you decide to do things by inflexible
formulas. Right now, the spending cap proposal, the
way it works, says that no matter how high inflation
is, spending must fall behind inflation. So assuming
you have even population growth, this spending cap
proposal says spending can only go up to reflect half
the rate of inflation. Conceptually, I think that
will result in schools that are more and more stressed
every single year. I think it will result in public
safety services that are more and more stressed every
single year. And the argument that I hear repeatedly
is, "We don't have a fiscal plan, but when we do have
a fiscal plan, then we can stop reducing services to
our schools ... [and] public safety services."
So what [Amendment 2] says is, if you have inflation,
we recognize it; and, if inflation causes costs to go
up just to provide the same level of services the next
year, we allow that to happen. So, ... in the
simplest circumstance, the way this [resolution] works
right now is, if we have 8 percent inflation next year
and zero population growth, to account for the 8
percent inflation, this [resolution] allows spending
to go up 4 percent. So we will have to lag 4 percent
behind inflation. This [amendment] says that we
shouldn't have to keep lagging behind inflation every
single year. So I would appreciate your support for
[Amendment 2]. Thank you.
REPRESENTATIVE STOLTZE in response said:
I agreed with the 50 percent amount; I'm pretty much
death on indexing, but I think this was a compromise
.... It does use factors but inflation isn't one of
them, so ... I don't know if that's particularly
germane ....
REPRESENTATIVE GARA clarified: "I'm sorry. When I said
inflation, I meant to say -- instead of using inflation, you've
indexed it to growth and personal income, and I meant growth and
personal income."
Number 1517
REPRESENTATIVE STOLTZE, noting that the indexing aspects of the
resolution were incorporated from the governor's proposal, asked
Ms. Frasca to comment.
MS. FRASCA offered that the change between 2001 and 2002 in
personal income was 4 percent, whereas inflation was 2 percent.
Additionally, the change between 2000 and 2001 in personal
income was 5 percent, whereas inflation was 3 percent. She
suggested that using personal income as an aspect of the
calculation would allow for a growth in inflation. She
elaborated: "Part of the challenge is, ... your revenues don't
automatically come in, under our fiscal regime, at the rate of
inflation." Some bodies in other states, she noted, can simply
raise a tax to correspond with what they want to spend, but
under Alaska's current system, that has not been the option
taken. She added:
So I don't know if it's as logical to always associate
what we want to spend with automatically bringing in
more revenues to allow us to do that. This requires,
if we're not keeping up with the rate of inflation or
a desired rate of spending, it means that we have to
make choices because we simply don't have more money
to keep spending more. And so, as a result, you have
to make priorities, and education certainly has been
evidenced to be one, since we spend about 35 percent
of our entire budget on education ....
REPRESENTATIVE OGG said that he didn't like [the concept of] an
appropriation limit because it is the duty of the legislature to
appropriate, "and the check [and balance] is at the ballot box."
Speaking to Amendment 2, he said that if the language regarding
the 50 percent is removed, then an increase in military
personnel could cause an increase in population and personal
income without a corresponding increase in the need for
services. He opined that such could result in an increase to
the size of government and spending "because you add those two
together and you don't divide them." He opined that Amendment 2
could lead to things getting way out of hand depending on any
given year's circumstances. He expressed opposition to
Amendment 2.
Number 1648
REPRESENTATIVE GARA said that Representative Ogg is correct in
that there will be various circumstances in the future:
unanticipated high inflation; unanticipated high population
growth; unanticipated high insurance cost increases "because
when insurance companies do terrible in the stock market, they
pass the cost off along to us, and stuck with flat funding, that
just means, to pay insurance costs, we have to cut services even
further." Representative Gara said he agrees with
Representative Ogg's premise, which is why he thinks that
running government by formula "is not a wise move." If the
proposed spending cap passes, he remarked, he said he wants it
to reflect the reality that there might be very high inflation
costs in the future and the legislature might not want to cut
services even further in order address those higher costs.
REPRESENTATIVE GARA relayed that if members evinced any support
for Amendment 2, he would be willing to amend it for the purpose
of addressing Representative Ogg's concern regarding a possible
increase in military personnel. In response to Ms. Frasca's
statement that education has been a priority and which he
surmised was a suggestion that the legislature shouldn't worry
about education funding continuing to lag behind inflation,
Representative Gara said:
The last year of the Knowles Administration, education
... appropriations were $739 million, last year they
went down to $729 million, and this year the governor
proposes $722 million. In actual dollars, spending is
going down while inflation ... [and] insurance costs
are going up. And I would suggest to you that without
[Amendment 2], that course will continue. At some
point, maybe education spending won't continue to go
down, but ... if we keep knocking it down and then we
hold it stable in the future, we've institutionalized
failure. I'm not willing to do that, so I would
appreciate support for [Amendment 2].
Number 1761
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 1. Representatives Holm, Samuels,
Anderson, Ogg, and McGuire voted against it. Therefore,
Amendment 2 failed by a vote of 2-5.
Number 1773
REPRESENTATIVE GARA made a motion to adopt [Conceptual]
Amendment 3, a handwritten amendment that read [original
punctuation provided]:
Rewrite Section 16(a) to allow appropriations to reach
the FY 2003 level, adjusted for inflation and
population growth.
Number 1781
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA, in explanation of Conceptual Amendment 3,
said:
This is a different approach. The argument that we
have received, that we have heard many times, is that
... we need to cut education funding, need to cut this
kind of funding and that kind of funding because we
don't have a fiscal plan yet. And you know what? If
we keep not coming up with a fiscal plan, I might be
able to buy that argument, but one of these days we'll
get our act together and we'll have a fiscal plan.
And the premise is that we have to cut because we
don't have a plan yet. At some point we will have a
plan, and [Conceptual Amendment 3] says we should
[have] the base year's appropriation as being FY 2003:
we should allow spending to keep up with inflation in
relation to that benchmark year - 2003.
... Another problem with the way the spending cap is
written right now is that it doesn't reflect this
reality. It says, if next year we decide to cut the
budget by $100 million because we found some real
savings that are temporary - ... for example, for some
reason fewer people get sick and we need to spend less
money on Medicaid, or for some reason we have a
temporary plummet in the number of students but the
following year they go up - the way the spending cap
works is, if we economize by cutting costs in response
to real cost-saving possibilities that we have one
year, but they're only temporary cost savings and we
have to go back to the same level again the following
year, we can't do that. It says that if you economize
one year as a legislature and cut the heck out of
things because you found some one-time opportunities
to do that, then you're stuck at that level the next
year.
REPRESENTATIVE GARA continued:
Number 1837
That's the problem we have in Anchorage; it is a huge
problem in Anchorage. In Anchorage, we gave away
property tax relief one year and we couldn't go back
to the prior year's appropriation level, adjusted for
inflation, again. It's hampered the city of Anchorage
very much to have this kind of provision in here that
doesn't reflect reality. So I think you should have a
[base] year and you should live within your means
based on that base year's appropriations adjusted for
inflation. But if you're smart one year or able to
find temporary cost savings but not able to do it the
next year, the [proposed] ... spending cap doesn't
allow you to deal with the reality of the following
year. It says you're stuck at the level of spending
that you engaged in, in the year that you found the
temporary savings. ... Again, running government by a
formula instead of by logic, I think, is a problem.
But if we're going to do it, I think we need to get
rid of that glitch in the spending cap.
REPRESENTATIVE HOLM said:
I'm getting [a] little upset by the constant talk of a
fiscal plan ... when no one knows what it means, nor
does no one propose one. And so to argue that we
don't have a fiscal plan, when no one has one and no
other state has one, I know that my personal fiscal
plan is that my expenditures meet my revenue. The
state of Alaska, in the reverse, says we need to match
our revenue to our expenditures. And because of that,
I think it's very inappropriate for us to pass
[Conceptual Amendment 3], so ... that's my reality
check.
Number 1943
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Conceptual Amendment 3. Representatives
Samuels, Anderson, Ogg, Holm, and McGuire voted against it.
Therefore, Conceptual Amendment 3 failed by a vote of 2-5.
Number 1954
REPRESENTATIVE GARA made a motion to adopt Amendment 4, a
handwritten amendment that read [original punctuation provided]:
Insert@ p.2 line 28
"(12) an amount that exceeds the prior years budget
needed to reduce kindergarten through 12th Grade class
sizes."
Number 1960
CHAIR McGUIRE objected.
Representative GARA, in explanation of Amendment 4, said:
[Amendment 4] is designed to protect our ability to
educate our children in a proper way. Across the
state we've heard school districts say that they've
got to fire teachers [and] that class sizes have to
[increase], and I see no end in sight in this trend.
[Amendment 4] says that if you need to add an
appropriation to help reduce class sizes, you can do
that outside of the spending cap. National
organizations, ... from the federal government on
down, have recognized that kids really thrive in small
class sizes, especially in lower grades, between 15 to
18 kids. We can't do that in Anchorage anymore at
today's budget amount, and in many places across the
state, we can't do that. And, instead of actually
getting closer to the 15-to-18-student-per-class class
limit, we're getting further away from it.
On top of that, I know [Chair McGuire] and other
members of this legislature did statewide education
hearings a number of years ago, and what they also
heard is that we're having a hard time attracting new
teachers to the state because our salaries are
starting to lag. That's a problem we can't even begin
to address. Of the other problems we're dealing with
[regarding] education, that's one that is so far off
our radar screen, our ability to address at this
point, it seems like it will never be addressed. So,
... I don't like the trend in education funding in the
state, I don't like the fact that it's been going
down, and if we're ever going to reverse that trend
and ever going to give children equal opportunities to
succeed in life, we're going to have to give small
class sizes at some point. We can't do that the way
the spending cap is written, and so I urge passage of
[Amendment 4].
Number 2022
REPRESENTATIVE ANDERSON relayed that he is very supportive of
lower classroom sizes, but remarked that he did not think that
Amendment 4 would accomplish what its sponsor intends and would
instead debilitate the resolution. He offered his belief that
Amendment 4 is ambiguous in terms of the way money is spent for
education. Representative Anderson surmised that Representative
Stoltze has indicated that classroom and education funding can
still be elevated using the equation laid out in HJR 9 without
Amendment 4.
REPRESENTATIVE STOLTZE pointed out that education funding is a
formula, and surmised that reductions have occurred, not because
the legislature hasn't put extra money in the education budget,
but because it is a population/enrollment derived formula. He
said that he supports education and believes in prioritizing.
Historically, he suggested, the legislature has prioritized
education funding even when oil revenues were low, and said he
couldn't imagine the legislature ever not having a commitment to
addressing education [funding] "balanced higher than all other
needs." He went on to say that he is not sure that Amendment 4
does what the sponsor intends as artfully as it could.
CHAIR McGUIRE remarked that one of the frustrations of serving
in state government is that when constituents complain about the
lack of money going into the classroom, in point of fact, the
legislature does not get to choose how funds are spent; funding
is based on a formula and monies are dispersed by the school
districts - by the school boards themselves. She noted that the
legislature has instituted a requirement that at least 70
percent of funds must go to the classroom. After expressing
agreement with the sentiment behind Amendment 4, she pointed out
that it ends up being ambiguous because it is really difficult
to determine what monies will reduce classroom size, especially
given that the legislature cannot micromanage where those monies
actually go. Noting that some would argue that a certain amount
of money must go toward school administrative costs and that it
would be difficult to separate those funds from others, she
suggested that this, too, contributes to Amendment 4's
ambiguity.
Number 2199
CHAIR McGUIRE predicted that many suggestions for reducing
classroom size will be made without any proof that those ideas
will actually accomplish that goal. Because education funding
is done by formula, she remarked, perhaps members' efforts would
be better spent in attempting to modify that formula -
established by the 20th legislature's SB 36 - adding that she
and many others think that it is a flawed formula [because] it
is based on population. Thus, she mentioned, although it
appears that school funding has been reduced by $7.8 million,
according to the formula, this merely reflects a reduction in
population. In conclusion, she said she felt that Amendment 4
is flawed, suggested that members' votes on it are not a
reflection of their feelings regarding classroom sizes, and
posited that all House Judiciary Standing Committee members
would like to reduce classroom sizes K-12.
REPRESENTATIVE GARA opined that Amendment 4 is not vague;
rather, it gives the legislature the opportunity to direct more
money toward teachers so that classroom size can be reduced. It
says that the legislature shall have the discretion to
appropriate an amount that exceeds the prior year's budget if
that money goes to reducing classroom size, and that, he
predicted, would be accomplished by hiring more teachers or
teacher aids. Education is not funded by formula, he opined,
adding that although the law is a formula law, ultimately the
legislature is responsible for deciding whether to fund it.
According to a Legislative Legal and Research Services
memorandum, he explained, of the roughly $7 million reduction in
education funding proposed by the governor this year, only $2
million is related to decreased student enrollment and the other
$5 million is not.
Number 2279
REPRESENTATIVE GARA went on to say:
We know from the [Legislative Legal and Research
Services] report that since 1998, school funding - in
real dollars adjusted for inflation - has gone down by
about $45 million. That doesn't reflect $45 million
worth of fewer students ...; most of it is other
factors apart from declining student enrollment.
Since 1992, if you take into account inflation and
adjustments for inflation, according to the
[Legislative Legal and Research Services] report,
education has fallen by $30 million; again, that
doesn't reflect a $30 million decrease in student
enrollment, [though] some of it does - ... most of it
is a decrease in funding just generally, in real
dollars. So I guess I cannot accept the [sponsor's]
view [of], "Don't worry about education, we'll always
fund it just right." I mean, even without this ...
constitutional amendment that we have here, we've just
let education funding fall behind inflation. We just
have; it's just not arguable.
REPRESENTATIVE GARA indicated that he agrees with Chair
McGuire's point that it is frustrating to not be able to control
what school districts do with education funding after it is
appropriated. Additionally, aside from the aforementioned 70
percent requirement, he predicted that there is probably not a
lot more the legislature could do in that regard. "The bottom
line is," he concluded, "if we appropriate less money in real
dollars every single year, class sizes are going to go up;
that's all there is to it." He asked members to support
Amendment 4.
REPRESENTATIVE OGG noted that vagueness is in the eye of the
beholder, and offered his belief that if one is going to craft
something for placement in the Alaska State Constitution, one
needs to be very careful and precise with the wording. He
opined that Amendment 4 could be read a couple of ways, and he
surmised that the legislature did not want to be handing
citizens and future legislatures an argument as to exactly what
such a provision would mean. He said he would be opposing
Amendment 4.
REPRESENTATIVE HOLM said he agrees with Representative Ogg's
comments.
TAPE 04-9, SIDE B
Number 2391
REPRESENTATIVE HOLM concurred that the current system does not
allow the legislature to dictate to school districts how to
spend their money. Instead, money goes to a city or borough
government, which in turn distributes that money to its school
districts based on their budgets and, therefore, it is the
school districts themselves that determine classroom size. He
went on to say:
We, as a society, have done a lot of things to stop
classroom sizes from being small. We have added ADA
[Americans with Disabilities Act] programs, which
completely dictate how monies are spent in different
areas. We've added a lack of discipline in
classrooms, which really dictate how carefully people
can learn; sometimes they can't learn at all because
one or two students in the room take the teacher's
time 100 percent, and so the ones who are going to
produce something in society, many times, are the ones
that are the most hurt. So, a lot of the things that
we do in our zeal to protect our education system
sometimes, I might argue, really work in the reverse.
But as a practical matter, ... we can't make those
specifications as to the number of children that are
in classrooms in the [Alaska State] Constitution, nor
should we.
MS. FRASCA, in the issue of education funding, said:
We tend to look at what we're getting for the $722
million that we are investing as opposed to what we're
not getting for the $40 million that we're not
spending. But I'd also like to point out that the
formula is written so that communities, those that
could afford it, participate in the cost of education.
And under the existing formula, Anchorage ..., for
example, ... could be, under the state law,
contributing [$12.5 million] more than it currently
is. Juneau [and] Kenai are currently ... just about
up to the max that they could contribute. So, for
those with a community that education [is] of such a
high priority, they might look to see what they're
capable of doing, as well. Thank you.
CHAIR McGUIRE said, "Point taken."
REPRESENTATIVE GARA relayed that if members are in opposition to
Amendment 4 because of its current wording, then he would be
willing to accept an amendment to Amendment 4 for the purpose of
clarifying the language. If, however, members have
"substantive" opposition, then he understands. He, too,
acknowledged Ms. Frasca's point, and asked whether she is
suggesting that Anchorage should increase its taxes.
MS. FRASCA said no; rather, she is simply pointing out that the
current education funding formula recognizes local community
contributions.
REPRESENTATIVE SAMUELS, turning to the issue of the requirement
that 70 percent of the funds that school districts receive must
go into the classroom, remarked that some of the same school
districts consistently ask for a waiver from the state, and the
state keeps granting those waivers. "So we can't kid ourselves;
we passed a law that we're very proud of, and then we had a
waiver and everybody's percentage stays the same," he added.
Number 2233
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 4. Representatives Anderson, Ogg,
Holm, Samuels, and McGuire voted against it. Therefore,
Amendment 4 failed by a vote of 2-5.
Number 2217
REPRESENTATIVE ANDERSON moved to report the proposed CS for HJR
9, Version 23-LS0435\B, Cook, 1/27/04 [as amended] out of
committee with individual recommendations and the accompanying
fiscal notes.
Number 2199
REPRESENTATIVE OGG objected for the purpose of discussion. He
went on to say:
It's tough. It's tough to put a limit on
appropriations, and it is very hard for me, given the
history of America: that we fought very hard that
decisions would be made by the majority. And when ...
our Founding Fathers did that, they said ...
appropriation power: 51 percent, ... or one past
half. And I think the [founders] of the Alaska
[State] Constitution did exactly the same thing, and
the first section in the taxing power says that there
shall now [be] no limits on taxing in this state by
the legislature's power to do that. And I think
that's an important power that the people have given
to us, the legislature; that's a responsibility.
Unfortunately, in the past, when we had an overflow of
oil money, some of the legislators felt the pressure
that we're spending too much and put in an
appropriation limit ... that does put a limit, however
ineffective as it is. But it was the legislature that
tied their own hands at that point, not trusting their
ability to make decisions that the public and the
people who voted in our constitution said, "This is
your responsibility." My concern ... is that when we
set appropriation limits, we do not give ourselves, as
a legislature representing the people of this state,
the ability to respond to events as they occur. And I
think that that's what our [Alaska State] Constitution
has been set up for, is to give us that ability, and
we are the representatives of the people - we're a
republican form of government - and it is our duty.
And should we do our duty wrong, [then] every two
years - at least the House members - we're subject to
the vote of the people. And if we spend too much,
then the folks will say your doing that, and they will
take you out of office and somebody else who's a
little more fiscally responsible will be elected. I
think that's the power that I recognize, when we move
this through committee, we're giving up; we're giving
up that responsibility to the voters. I have real
problems with [proposed Section 16(b)], which shifts
it to ... three-fourths of the members of each house.
Number 2109
REPRESENTATIVE OGG continued:
It can be viewed a couple ways. It can be viewed that
some folks in a majority feel that their viewpoint
isn't getting across, and so in order to tie the hands
of the majority, you increase that power a little
higher in order to vote yourself the ability to
respond to circumstances. That's one edge of the
sword. The other edge of the sword is that with the
Constitutional Budget Reserve, we are actually
empowering a minority, and all we have to do is look
south to California - they have a two-thirds
requirement to pass their annual budget - and look at
the state of their financial affairs if you give up to
the minority. And so when you put this three-quarter
vote in here, you're asking for "Christmas trees."
It's very difficult. I can see doing this for a
period of time, and I think that the ... sponsor does
address that [in] six years, but to put it in the
hands of the public and not in the hands of the
legislature, to renew this, seems to be giving up our
authority again on taxing and appropriation. And I'd
much prefer to see something that says in here that
this would be good for six years and then the
legislature would have to decide on their own whether
they wanted to reenact this. This is called sort of a
hard date and not a soft date; this just happens over
time. I won't be making those amendments here, but I
want it to be clear on the record that these are
problems for me, and I think they should be problems
for the legislature.
When we change the [Alaska State] Constitution I think
we need to be very careful [because] you start to
shift the relationship between the legislature and the
people of this state and our form of government, and I
have great concerns that this goes down a road that
says, "We the legislature don't trust ourselves; we
need to handcuff ourselves because we have all this
money." ... It seems the big problem is that [when] we
have excess oil monies, we've put it into a permanent
fund and we're wrestling with how to fund state
government out of that, and perhaps a way to do this
is to narrow this to appropriations from that fund and
[thereby] not impact our ability to tax.
Number 2014
REPRESENTATIVE OGG concluded:
I don't think there's any question about our ability
to tax. You tax too much, they'll have somebody else
in your seat .... So that balance is in the [Alaska
State] Constitution. But the only thing that's out of
balance is this permanent fund; we have such excess of
money. So as this thing goes through, I certainly
hope that that issue will be addressed ... Perhaps we
can just narrow this to the permanent fund itself and
not to the whole spectrum of our powers of taxation
and appropriation.
CHAIR McGUIRE offered her belief that all of the committee
members have struggled with the very concerns raised by
Representative Ogg. The power to appropriate is the
legislature's one power, and if the constitutional amendment
proposed by HJR 9 is adopted by the voters, then that power
would be eliminated, at least in part. She said she hopes that
more improvements will be made to the resolution as it goes
through the process. Alaska is one of the few states that has
continued to reduce government spending over the last decade,
she remarked, and relayed that her concern centers around the
possibility that a future legislature will reverse that trend;
thus HJR 9 is just a small measure towards, yes, tying the hands
of future legislatures.
CHAIR McGUIRE mentioned her approval for the provision requiring
voter reauthorization every six years. She opined that "this
whole sweep with the CBR [Constitutional Budget Reserve]" is not
working as intended, "where we're bribing votes and ... pushing
the budget up beyond what we thought it would be and certain
people who give those votes get a little bit more in their
community for capital projects, and I think it's appalling." "I
know for sure that's not how it was intended," she added. She
mentioned that she could envision the three-quarter vote
requirement of HJR 9 engendering the same sort of situations
that are occurring with the CBR, thereby rendering the
resolution ineffectual.
CHAIR McGUIRE relayed that her constituency simply does not
trust the legislature to not spend more money than it needs to.
She noted that when oil revenues were high in 1980s, the
legislature spent money on ridiculous things; so now, when the
legislature is trying to do worthwhile things like reduce
classroom size, the public doesn't trust the legislature.
Should a gas pipeline be built or the Arctic National Wildlife
Refuge (ANWR) be opened, she predicted, in order to get to a
percentage of market value or to a consideration of a broad-
based tax, the concept embodied in HJR 9 will have to be in
place.
Number 1821
REPRESENTATIVE GRUENBERG remarked:
People talk about wanting to have a legislature, but
yet they tie the legislature's hands. But if you were
to say, "Let's not have a legislature," people would
be really upset about that. So the question is, when
is it enough, when is it too much. And I think that
we have to trust the wisdom of the system of
government [that] we have - that's a representative
democracy; we obviously all do because we're all here,
and if we didn't like it, we'd live out in the woods
and wouldn't care and wouldn't live under anybody's
law. ... People do vote, more or less, and I think we
have to trust their good judgment, and trust our good
judgment in the future, and trust the people who
served in the past - I was here in the middle of the
'80s and, sure, there were some mistakes made, but we
did some good things too - and trust the fact that
[future legislatures] need to have the ability to make
these decisions.
And if we take their ability away from them, that not
only mistrusts them but it mistrusts the people who
vote for them, because it says, "You don't have the
sense to elect good people ... and your kids won't
have the good sense to elect good people; we know
more, not only than you do now," if we pass this out,
"but we know more than you'll ever know because we
won't let you ever do it - ever, ever do it." And
I've got real problems with this kind of a thing. To
paraphrase Patrick Henry, "I may disagree with how
they vote, but I will defend to the death their right
to vote."
CHAIR McGUIRE remarked that the good news about HJR 9 is that
[if it is passed by the legislature] it will go before the
voters; perhaps they will decide that what it proposes is
unnecessary.
Number 1704
REPRESENTATIVE GARA said:
The frustrating thing today is the same frustration
each of us share during the course of the legislative
session. It's that good policy, what's right for the
community, doesn't fit into a two-sentence sound bite.
Unfortunately, the media says that we have to explain
our policy in a sound bite. Campaigns say that we
have to explain our policy [on] a little card, and ...
people who train people how to run say, "Two
sentences, anything more and nobody is going to read
it." And at some point I think as leaders we have to
stand up and say, "We have to do what's right even if
we can't explain it in two sentences, even if we can't
explain it on Channel 2 news or Channel 11 news or
Channel 13 news if they don't have enough time to give
us more than two sentences."
So ... the sound bite, "Cut government" or "leave
spending the same" ... will generally resonate. And
it's generally, frankly, what this body has done over
the last number of years. If you don't duck your head
in the sand, and take a look at spending compared to
inflation - so real dollars spending - it really
hasn't been out of whack this last decade. But we're
playing to the sound bite .... It's so hard to say,
"Spending hasn't been out of whack in these last
number of years," and it's so easy to say, "Let's
impose a spending limit" - that sounds so good.
Here are some of the real problems, though. As
leaders, we have to recognize there are going to be
years where insurance costs skyrocket, and in order to
deal with that, under a spending cap, you're probably
going to have to find some cuts in some very unpopular
areas. You're going to have to deal with time when
pension costs skyrocket, ... to no fault of anybody's,
and that's happening this year; municipalities, for
example, are facing an extra $35 million, roughly, in
pension costs that they have to cover under the
[Teachers' Retirement System (TRS)] and [Public
Employees' Retirement System (PERS)]. They didn't ask
for it; it's a stock market thing. You can't write a
spending cap that deals with unforeseeable
consequences without making the spending cap useless.
And so I guess I do agree that our job is to lead, and
our job is to take flack if we've done it wrong. But
our job is not to come up with only those policies
that we can sell in a two-second sound bite. And
because the realities are much more complex than the
factors that are addressed in this version of the
spending cap, I can't support it. And frankly, if a
spending cap were written properly, which essentially
would say, "Leave the legislature the discretion to
deal with unforeseen circumstances," it wouldn't mean
anything. I guess you'd be left at a place where the
legislature makes those decisions. I don't see that
as a bad thing; I see that as democracy. And I agree
with Representative Ogg, that if my constituents
decide that I've done this irresponsibly, they'll
throw me out of office.
Number 1565
REPRESENTATIVE OGG withdrew his objection to the motion to
report the proposed CS for HJR 9, Version 23-LS0435\B, Cook,
1/27/04 [as amended] out of committee.
Number 1559
CHAIR McGUIRE asked whether there were further objections.
There being none, CSHJR 9(JUD) was reported from the House
Judiciary Standing Committee.
HB 342 - INCREASE DRIVING UNDER INFLUENCE PENALTY
Number 1531
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 342, "An Act relating to driving while
intoxicated; and providing for an effective date."
Number 1517
REPRESENTATIVE CARL GATTO, Alaska State Legislature, sponsor of
HB 342, explained that [through this legislation] he hopes to
"delineate" the person who drinks and drives. Representative
Gatto related that about 50 percent of the crashes involving
fatalities also involve [an individual with] a blood alcohol
concentration (BAC) of 0.15 and greater. Furthermore, he
related that most accidents are single-vehicle crashes and if an
individual has a BAC of 0.15 or higher, that individual is 385
times more likely to be involved in a single vehicle crash. He
pointed out that often, these single vehicles have additional
passengers. Representative Gatto highlighted that there is no
fiscal note for HB 342. However, if there are serious injuries
as a result of these accidents, one must realize that millions
of dollars of medical and life costs are incurred. Therefore,
the increase in fines proposed by HB 342 may save the state
money.
REPRESENTATIVE HOLM asked if there is some methodology other
than using a "breathalyzer" to determine one's BAC. He related
his understanding that a "blood draw" would provide a more
reliable BAC than a "breathalyzer."
[Note to the reader: Since July 2003, law enforcement agencies
in Alaska have been using the DataMaster cdm (compact
datamaster); this and similar units are often referred to by the
generic name of "breathalyzer."]
REPRESENTATIVE GATTO posited that when there are accidents, a
blood draw is usually done, which would result in an exact BAC.
However, he stressed that [DataMaster] tests are fairly accurate
when compared to blood draws.
REPRESENTATIVE HOLM related that he was fairly familiar with a
recent case in Fairbanks in which the breathalyzer test result
was quite a bit off. Therefore, he expressed the need to be
sure to gauge [the BAC] in the most reliable way possible.
REPRESENTATIVE GATTO said doing so made sense to him.
Number 1268
CODY RICE, Staff to Representative Carl Gatto, Alaska State
Legislature, sponsor, informed the committee that as a former
employee of Community Services Patrol in Anchorage, he has had
the opportunity to administer a [DataMaster] test and compare it
with a blood draw from the same individual. Although sometimes
there was a slight discrepancy, when [DataMasters] are
calibrated regularly their readings are very accurate. In
response to Chair McGuire, Mr. Rice related his experience that
the [DataMaster] test result is lower than the blood draw
result.
CHAIR McGUIRE said that is important because this is an
increased penalty for those who have a BAC level that is higher.
Therefore, if there is an error in the test that would lower the
individual's BAC level and the subsequent penalty, then she said
she wasn't as concerned about any possible discrepancy.
REPRESENTATIVE GARA asked if the reference to the testing a
person's breath is referring to use of a [DataMaster] or use of
a portable breath tester (PBT), [the results of] which even
cause law enforcement concern. He further asked if the fine
increase would be based on the PBT too.
MR. RICE replied yes, adding that although he believes "law
enforcement would tend to disagree," he can't speak for law
enforcement because "that is the case and it is still legal for
them to use [PBTs]."
REPRESENTATIVE GARA noted that the courts rely on [DataMaster]
results, which he agreed can be very accurate when calibrated.
Representative Gara said he didn't worry about requiring that
the [BAC level] be determined by a blood draw because that would
cost the state; moreover, defendants do have the right to
request a blood draw when given a [DataMaster] test.
Representative Gara said he didn't see why the PBT would be
allowed since law enforcement doesn't rely on it for a
conviction. In reading the language of the legislation itself,
he said he has difficulty determining exactly what the increase
in fines would be.
Number 1037
MR. RICE specified that the sole purpose of HB 342 is to double
fines associated with [driving under the influence (DUI)]
convictions. On page 4, paragraph (1) specifies that if the
trier of fact determines that the BAC was 0.16 to 0.24, then the
fines will be doubled. Paragraph (2) on page 4 specifies that
if the BAC was 0.24 or greater, the fines will be quadrupled.
In response to Representative Samuels, Mr. Rice noted his
agreement that this legislation merely means that if one's BAC
is higher, that individual pays more.
REPRESENTATIVE GARA, in response to Representative Samuels,
explained that law enforcement carries around a PBT and if law
enforcement suspects the individual is drunk, then a
[DataMaster] test is also administered. He noted that the
[DataMaster] results are relied upon for a conviction.
CHAIR McGUIRE suggested that the above distinction should be
clarified.
REPRESENTATIVE GATTO noted that many people attempt to delay
testing in the hope that their BAC levels will drop.
CHAIR McGUIRE requested that a law enforcement representative be
available at the bill's next hearing to explain how it would
work in real life.
MR. RICE pointed out that HB 342 doesn't make any changes with
regard to the legality of using PBTs, [DataMasters], or blood
draws. The legislation only changes the fines.
Number 0858
REPRESENTATIVE OGG indicated the need to clarify the term
"chemical test" on page 4, line 2. Also on page 4, line 4
refers to "0.16", whereas other language in the legislation
refers to "greater than 0.15", which suggests inconsistency.
With regard to the fines and sentencing provisions,
Representative Ogg opined that there needs to be some fine-
tuning between Section 1, subsection (b)(1), and Section 2,
subsection (n)(1), which currently appear to conflict with each
other.
CHAIR McGUIRE said that one could envision a case in which a
judge attempts to thwart the intent behind the legislation and
deliberately sets the fine lower and then doubles that.
REPRESENTATIVE GATTO offered his hope that some discretion is
given to the judges. He offered his belief that all the
legislation does is double [the fines].
REPRESENTATIVE OGG reiterated that there should still be more
clarity regarding Sections 1 and 2.
CHAIR McGUIRE suggested that an opinion from the drafter would
be appropriate on this matter. She noted her agreement with
Representative Gatto that some judicial discretion should be
preserved.
REPRESENTATIVE GARA said that he certainly supports increasing
the fine for those with higher BAC levels, but he wasn't sure
that there is a mandatory minimum for a misdemeanor DUI charge.
He remarked that quadrupling a $10,000 fine seems to be
excessive.
REPRESENTATIVE GATTO pointed out that it takes an excessive
amount of exposure to previous fines in order to reach that
[$40,000] fine [and thus these would be] repeat, chronic
offenders.
REPRESENTATIVE GARA said he agreed with the concept of making
the fines stiffer in order to reflect the society's interest in
this matter. However, he requested that Representative Gatto
consider whether the DUI fine should be increased from $10,000
to $40,000. He mentioned that it's a small minority of people
who are repeat offenders. He posed a situation in which [a
repeat offender] doesn't understand that he or she needs alcohol
treatment until the second, third, or fourth DUI, and by
increasing the fine to $40,000, the individual will never go to
alcohol treatment. Therefore, he said he wasn't sure that
society was being made better by increasing a fine that will
probably never be paid and, if it was paid, it might come from
funds that would've been used to attend a treatment facility.
REPRESENTATIVE GATTO suggested that some people could be
deterred when they realize there is a considerable penalty
attached to a repeat DUI conviction, though he acknowledged that
there are simply people who don't care, and hence raising the
fines simply won't reach those people.
Number 0274
REPRESENTATIVE ANDERSON acknowledged the difficulty in this
matter and noted his support in limiting DUI incidents. He
highlighted the importance of looking to other states with
regard to how many states have a tiered fine system similar to
that proposed in HB 342. Representative Anderson indicated his
agreement with Representative Gara in regard to the notion that
there needs to be a balance between the penalties and the group
of individuals who will face the penalties. He mentioned the
need to encourage proactive measures as well. Although
Representative Anderson said he understands MADD's punitive
position, he feels that sometimes MADD doesn't look at
alternative measures, which are also helpful to review.
REPRESENTATIVE GATTO informed the committee that 31 states plus
Washington, D.C., and American Samoa have legislation [that
increases the fines for DUIs].
TAPE 04-10, SIDE A
Number 0126
REPRESENTATIVE HOLM recalled a newspaper article in which a
gentleman was picked up at a bar for sleeping in his car.
Representative Holm noted his agreement with Representative
Anderson in that one must look at things with respect to the
damage to the person committing [the crime] as well as the
threat to society. He said that he has never understood how
someone warming up his or her car could be considered driving,
especially in Alaska's cold climate. Representative Holm noted
his appreciation of Representative Gatto's idea that there
should be consequences for one's actions, adding that too often
the legislature legislates such that people don't pay the
consequences for their actions.
Number 0285
CINDY CASHEN, Executive Director, Juneau Chapter, Mothers
Against Drunk Driving (MADD), began by informing the committee
that today she is representing the MADD chapters from Anchorage,
Fairbanks, Matanuska-Susitna ("Mat-Su") valley, and Juneau. She
noted that she is also a victim of drunk driving. Ms. Cashen
announced that MADD supports HB 342. She mentioned that MADD
views [the legislature] as being more punitive. She pointed
out, however, that the proponents of treatment claim that MADD
is punitive, while the proponents of jail time claim that MADD
is treatment friendly. This legislation is just one part of the
puzzle, she remarked.
MS. CASHEN said that any legislation with a fiscal note isn't
going to pass this session, and therefore MADD can't request
that a treatment provision be added to HB 342. Fortunately,
most of the treatment agencies in Alaska and Washington use a
sliding scale; thus, if an individual is charged with fines, he
or she won't be prevented from treatment. She explained that
MADD supports HB 342 because it has seen so much damage from
high risk and chronic drunk drivers. In order to deal with the
aforementioned, the state must have a practical operational
definition based on objective measures growing out of the drunk-
driving enforcement and criminal justice processes. She
stressed that the definition can't be left to the screening
process that involves subjective elements such as self-reports
and professional assessments, even when provided by licensed
alcohol treatment specialists. The sanctions need to be in the
courtroom.
Number 0419
CHAIR McGUIRE recalled HB 4, legislation from the Twenty-Second
Alaska State Legislature, that at one point tied funding of
wellness courts to the newly imposed fines. Chair McGuire said
that there is no question that the wellness courts are working,
and therefore she asked whether MADD would support tying the
newly generated funding from HB 342 to support wellness courts.
MS. CASHEN replied yes and noted that MADD was on record as
supporting that part of HB 4. Furthermore, MADD has also gone
on record in support of the wellness court and therapeutic court
legislation. She said that MADD has seen the success of
[wellness and therapeutic courts] in other states as well as in
Alaska. She informed the committee that she was the [first]
wellness court case manager in Juneau and thus she has witnessed
its success when administered properly and with a sufficient
amount of funds.
REPRESENTATIVE GARA surmised that the average person on the
street would agree that the fines for DUI and repeat DUIs should
be increased. However, at some point he wondered when the
increases should stop. Representative Gara announced his
support for increasing the misdemeanor fines and adding some to
the felony fines. He pointed out that in Alaska, $40,000 is two
years worth of income for some people, and suggested that he is
uncomfortable with that high a fine.
MS. CASHEN recalled that about three years ago, when she started
with MADD, Alaska was number one in the nation for the number of
drunk driving fatalities per capita. Since that time, three new
chapters of MADD have formed, and the focus [of all the Alaska
chapters] is education. Because of groups such as MADD and
legislation such as HB 4, Alaska now ranks 26th [in the number
of drunk driving fatalities per capita]. She highlighted that
the aforementioned change has occurred over the last three
years.
MS. CASHEN informed the committee that she is a recovering
alcoholic with over seven-and-a-half years of sobriety. In
order for an alcoholic who is also a chronic drunk driver to
finally realize he or she has an issue, that person has to reach
the bottom, which is at a different spot for each individual.
She related that many of the alcoholics with which she has
spoken have said that they reached the bottom due to financial
sanctions such as those proposed today.
REPRESENTATIVE GARA agreed that reaching the bottom is personal,
as is the appropriate sentence for an individual person. He
suggested that a $40,000 fine against someone who makes $90,000
a year makes more sense than a $40,000 fine on someone who makes
$10,000 a year and has a family to care for. Representative
Gara opined that justice should be individualized. He pointed
out that MADD has done a good job convincing people that
sentences have been too light in the past. He suggested that
perhaps the fines don't need to be reviewed [and increased] so
severely if the jail time has increased, which might bring
someone to the bottom more quickly than a $40,000 fine.
MS. CASHEN said that it has been some time since there was an
increase in the jail time due to the cost the state's
correctional system. She explained that MADD is trying to look
at a comprehensive program for the high-risk driver, and what is
being reviewed is sanctions, which serve as a deterrent. If
[fines] deter someone from drinking and driving and killing
someone, then the state will save hundreds of thousands of
dollars.
MS. CASHEN, in response to Representative Anderson, reiterated
her belief that fines will deter individuals from driving drunk.
Number 1019
CHAIR McGUIRE mentioned that even with other sections of the
criminal code, the deterrent argument is always raised, but
another aspect of sentencing is that it is also punitive. She
remarked that she believes the suggestion of a sliding scale is
a good one and has been done in other states.
REPRESENTATIVE GRUENBERG opined that the problem of drunk
driving will never cease. This legislation is one, but not the
only, approach to solving this problem. Although the criminal
system is used as a means of enforcement and it offers some
recompense to society, with the civil system there's a lower
standard of proof and the injured victim receives recompense.
Representative Gruenberg recommended that one should consider
various ways of solving the problem [in order to get to] the
best solution.
Number 1178
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration (DOA), related that public
defenders recognize that DUI is a serious problem in Alaska.
She acknowledged all the efforts by the legislature to make some
changes in this area. She pointed out that the statutes in this
legislation have been changed numerous times over the past few
years. Currently, a first-time offender receives a mandatory
jail sentence of three days and a mandatory minimum fine of
$1,500 and the individual's license is revoked for 90 days.
Furthermore, those in prison face a surcharge, which can't be
higher than $10,000, for the cost of imprisonment. Moreover,
there is a conviction surcharge of $75 and the individual may
very well lose his/her permanent fund dividend. The individual
will have to do some alcohol treatment. This particular
legislation raises some concerns because it will likely cause
there to be more trials if people are disputing the BAC levels.
Page 4 of the legislation says that the [BAC] level will be
determined by the trier of fact. In some cases, the BAC level
won't be addressed if it's over .08 because the higher level may
not matter and the issue may then be with regard to whether the
individual is driving or not. Therefore, she predicted that
there would be more effort put into establishing or contesting
the BAC level when an individual is in the "fringe" area.
MS. WILSON remarked that there is a possibility that this
legislation will be challenged on an equal protection basis.
For example, if it's a second misdemeanor offense, the current
mandatory minimum fine is $3,000 and quadrupling that would
result in a mandatory fine of $12,000. The amount of $12,000 is
over the maximum fine allowable for a class A misdemeanor and
thus the convicted individual will be pulled out of the class in
which he or she is convicted and be treated differently than
others in that class of offense.
MS. WILSON turned to the benefits of putting money toward
treatment versus imposing more penalties. With all the recent
changes related to DUIs, she suggested that it would be helpful
to wait and see what the benefits would be before drastically
raising fines. She reminded the committee that the PDA
basically represent the poor. When the fines are doubled or
quadrupled in an offense that is already experiencing heightened
penalties, people may not seek treatment because of a lack of
funds. Ms. Wilson suggested that perhaps the committee could
review making more incentives for people to obtain treatment
rather than imposing more penalties.
CHAIR McGUIRE reiterated her earlier comments regarding using
some of the funds from fines to fund wellness courts.
Number 1433
REPRESENTATIVE SAMUELS remarked that he believes that one
wouldn't see the same fatalities when the BAC is .08 versus when
the BAC is .28. He acknowledged that he didn't know whether
fining someone $40,000 would help. However, he expressed
concern that there are still those individuals who have been in
rehabilitation six times and jail didn't work.
REPRESENTATIVE GARA agreed, adding that that is why he mentioned
individualized justice points. Representative Gara asked if Ms.
Wilson would be able to provide the committee with a summary of
the changes in the fines over the last five years.
MS. WILSON agreed to do so.
[HB 342 was held over.]
ADJOURNMENT
Number 1523
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:15 p.m.
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