01/22/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB69 | |
| HB76 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 7 | TELECONFERENCED | |
| *+ | HB 69 | TELECONFERENCED | |
| *+ | HB 76 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 22, 2007
1:10 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Berta Gardner
COMMITTEE CALENDAR
HOUSE BILL NO. 69
"An Act relating to executive clemency."
- HEARD AND HELD
HOUSE BILL NO. 76
"An Act relating to the creation of a civil legal services
fund."
- HEARD AND HELD
HOUSE BILL NO. 7
"An Act relating to false caller identification."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 69
SHORT TITLE: NOTIFY CRIME VICTIM OF EXECUTIVE CLEMENCY
SPONSOR(S): REPRESENTATIVE(S) SAMUELS
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) JUD
01/22/07 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 76
SHORT TITLE: CIVIL LEGAL SERVICES FUND
SPONSOR(S): REPRESENTATIVE(S) RAMRAS, LEDOUX
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) JUD, FIN
01/22/07 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
LAWRENCE JONES, Executive Director
State Board of Parole
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 69 and
responded to questions.
MARY ANNE HENRY, Deputy Attorney General
Criminal Division
Office of the Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 69.
KATHERINE HANSEN, Interim Director
Associate Victims' Rights Advocate
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 69 and responded
to questions.
SUSAN SULLIVAN, Executive Director
Victims for Justice (VFJ)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 69 and asked
questions of the sponsor.
MERCEDES ANGERMAN
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 69, provided
comments and urged the committee to support the bill.
EMILY STANCLIFF, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 76 on behalf of Representative
Ramras, one of the bill's prime sponsors.
ANDY HARRINGTON, Executive Director
Alaska Legal Services Corporation (ALSC)
(No address provided)
POSITION STATEMENT: Testified in support of HB 76, and
responded to questions.
KARA NYQUIST, Executive Director
Alaska Pro Bono Program, Inc (APBP)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to a
question during discussion of HB 76.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:10:35 PM. Representatives Dahlstrom,
Coghill, Samuels, Lynn, Holmes, Gruenberg, and Ramras were
present at the call to order. Representative Gardner was also
in attendance.
HB 69 - NOTIFY CRIME VICTIM OF EXECUTIVE CLEMENCY
1:12:00 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 69, "An Act relating to executive clemency."
1:12:39 PM
REPRESENTATIVE SAMUELS, sponsor of HB 69, explained that the
bill will ensure that a victim is notified when a perpetrator is
granted a pardon by [the governor], and offered his belief that
the bill will not interfere with Article III, Section 21, of the
Alaska State Constitution which states in part:
Subject to procedure prescribed by law, the governor
may grant pardons, commutations, and reprieves, and
may suspend and remit fines and forfeitures. This
power shall not extend to impeachment. A parole
system shall be provided by law.
REPRESENTATIVE SAMUELS also noted that Article I, Section 24, of
the Alaska State Constitution says in part:
Crime victims, as defined by law, shall have the
following rights as provided by law: ... the right to
be treated with dignity, respect, and fairness during
all phases of the criminal and juvenile justice
process; ... the right to obtain information about and
be allowed to be present at all criminal or juvenile
proceedings where the accused has the right to be
present; the right to be allowed to be heard, upon
request, at sentencing, before or after conviction or
juvenile adjudication, and at any proceeding where the
accused's release from custody is considered; ...
REPRESENTATIVE SAMUELS suggested that honoring the
constitutional rights of crime victims mitigates any potential
conflict caused by "tightening down" the governor's
constitutional right to grant a pardon.
1:15:43 PM
LAWRENCE JONES, Executive Director, State Board of Parole,
Department of Corrections (DOC), relayed that there is very
little statutory language, and no regulatory language,
pertaining to the governor's broad constitutional authority to
grant a pardon. He offered his understanding that HB 69,
primarily by changing "may" to "shall", will require victims to
be notified of applications for executive clemency. He noted
that a person can access the State Board of Parole web site and
obtain information about clemency as outlined in what he
referred to as the "clemency handbook"; touched on portions of
the process that a potential applicant must go through; and made
reference to the Executive Clemency Advisory Committee (ECAC),
which has historically consisted of three members - the
lieutenant governor, a representative from the DOL, and a member
of the public.
MR. JONES remarked, however, that although the ECAC prepares a
summary and recommendation to the governor regarding each
application, the governor is under no obligation to abide by
that recommendation. Mr. Jones also mentioned that although the
duty of the State Board of Parole and the ECAC is to consider
applications for clemency, pardons have been granted as part of
a totally internal function of the Office of the Governor; when
such has occurred, he has been unaware of it until he reads
about it in the newspaper.
MR. JONES characterized HB 69 as a bill that is perhaps mostly
of interest to the governor's office. He also relayed that the
vast majority of people calling his office requesting
information about pardons are instead really interested in
finding out how to expunge their criminal records - primarily
for purposes of employment; however, Alaska currently doesn't
have a mechanism in place for expunging records, and even with a
pardon, one's record of a criminal offense remains in place. He
went on to explain that the term "executive clemency" is
actually an umbrella term that can refer to a pardon, the
commutation of a sentence, the remission of a fine or
forfeiture, or the granting of amnesty.
MR. JONES, in response to a question, offered his understanding
that in the situation which occurred recently, the governor's
pardon did result in the defendant not having to pay restitution
to the victim, and noted that generally the remission of a fine
or forfeiture is narrowly focused and does not result in the
person being pardoned from the offense.
REPRESENTATIVE SAMUELS asked whether a victim who receives
restitution would have to give that money back to a defendant if
the defendant is subsequently pardoned.
1:30:21 PM
MARY ANNE HENRY, Deputy Attorney General, Criminal Division,
Office of the Attorney General, Department of Law (DOL),
explained that when someone is pardoned, although he/she no
longer has to pay any fines or restitution, the victim doesn't
have to return any restitution thus far received. In response
to a further question, she confirmed that the bill could be
amended so as to prohibit the governor from negating a
defendant's duty to pay restitution to the victim.
MR. JONES offered that paying restitution to the victim and
victims' rights are relatively new concepts and so perhaps were
not considered at all when the original [executive clemency]
statute was enacted.
REPRESENTATIVE GRUENBERG, noting that Article III, Section 21,
also uses the term "reprieve", asked what that term means.
MR. JONES suggested that "reprieve" and "pardon" mean the same
thing and are thus interchangeable terms.
MS. HENRY offered her understanding that the term "reprieve" is
only mentioned in the Alaska State Constitution and not in
statute.
REPRESENTATIVE GRUENBERG pointed out, however, that AS 33.20.070
uses both the terms "pardons" and "reprieves", so presumably
they originally meant something different given that those two
terms were also used together in the territorial statutes
[Section 5-1-2 ACLA 1949].
MR. JONES said he would research that issue further.
MS. HENRY said she would also research that issue further.
REPRESENTATIVE GRUENBERG raised the issue of possibly providing
a mechanism that would allow one to have his/her record
expunged.
MR. JONES said there could potentially be a good reason to
explore that issue further, and noted that 43 states do have a
process by which one can get his/her record expunged, though in
those states that process is undertaken by the court system
rather than the executive branch.
1:39:00 PM
MS. HENRY turned attention to some proposed amendments in
members' packets, and asked Mr. Jones whether it would be
practical to [require the board to investigate an application]
within 60 days.
MR. JONES said it would not be practical, adding that even the
clemency handbook warns potential applicants that it can take up
to one year to complete the investigation process. He suggested
that a minimum timeframe of 180 days [for investigating an
application] would be much more viable.
REPRESENTATIVE SAMUELS surmised that currently under the bill,
the governor could not pardon someone within 60 days of the end
of his/her term of office because the language on page 1, lines
5-6, says that 60 days must elapse from the time notice is
provided before the governor can act on an application
[requesting a pardon].
MS. HENRY posited that even if that timeframe were changed to
180 days, it shouldn't cause a constitutional problem because
the Alaska State Constitution says that the governor shall
follow procedure as set forth in statute.
MR. JONES suggested that proposed AS 33.20.080(a) be changed to
say that the governor "may not act to grant a pardon unless 60
days have elapsed". Under such a change, the governor could
still act sooner to deny an application requesting a pardon.
REPRESENTATIVE SAMUELS indicated that there is a proposed
amendment to that effect.
MR. JONES remarked that such a change would be positive from his
perspective.
1:44:41 PM
MS. HENRY referred to language on page 1, lines 13-15, which
says in part, "If requested by the victim of a crime against a
person, a crime involving domestic violence, or arson in the
first degree, the board shall send notice", and said that this
language puts the onus of notification on the victim. She
suggested that instead the onus should be on the [State Board of
Parole] to notify the victim.
REPRESENTATIVE SAMUELS asked how much time would be spent by the
State Board of Parole looking for the victim in order to notify
him/her, and whether a victim who wanted only to put his/her
experience behind him/her would be notified.
MS. HENRY explained that if a victim doesn't wish to be
notified, he/she can make that known, and offered her belief
that the State Board of Parole should make a "reasonable effort"
to contact a victim. She further suggested that even if a
victim moves out of state or gets married and changes names, it
could still be possible to locate that person within a day.
REPRESENTATIVE SAMUELS asked whether the phrase, "reasonable
effort" ought to be included in statute.
MS. HENRY suggested that it would simply be common sense [for
the State Board of Parole to make "a reasonable effort" to
notify the victim]. In response to a question, she explained
that under the Victim Information and Notification Everyday
(VINE) program, a victim can sign up and get notified when the
perpetrator is being released from jail. From her own
experience, she recounted that under the VINE program, the
[Victim Service Unit (VSU)] will call the victim and will keep
calling until he/she calls back and acknowledges that he/she has
received the message. However, the VINE program would not have
been helpful in any of the situations wherein Governor Murkowski
granted a pardon because none of those defendants were actually
in jail, she observed.
1:49:25 PM
REPRESENTATIVE GRUENBERG, with regard to Ms. Henry's comment
that the onus for notification should fall on the State Board of
Parole, suggested that that could be accomplished by replacing -
on page 1, lines 13-15 - the words, "If requested by the victim
of a crime against a person, a crime involving domestic
violence, or arson in the first degree" with the words, "Unless
the victim [asks not to be notified]".
MS. HENRY surmised, then, that the bill would then apply to the
victim of [any crime] if the perpetrator submits an application
for executive clemency.
REPRESENTATIVE GRUENBERG concurred. He also suggested adding
language to page 2 which would stipulate that notification shall
be sent to the victim's last known address, remarking that he
would prefer that the amount of effort being taken to notify a
victim should be outlined in statute so as to provide guidance
to the State Board of Parole.
MS. HENRY opined that [such a limited effort] probably wouldn't
be effective because people move around quite a bit,
particularly if many years have passed since the crime
originally occurred. In response to a question, she explained
that deleting the aforementioned language would not result in
the victim not being notified at all; furthermore, since the DOL
and the Office of Victim' Rights (OVR) will be notified, both of
those entities might also make an effort to notify the victim.
The suggestion to delete the words, "If requested by the victim
of a crime against a person, a crime involving domestic
violence, or arson in the first degree" will simply put the onus
on the board to notify the victim. With regard to the DOL and
the OVR possibly notifying the victim, however, she acknowledged
that those entities might not keep the appropriate file on hand
once the case is resolved and so wouldn't necessarily have
access to the victim's address.
REPRESENTATIVE COGHILL expressed concern regarding the possible
unintended consequences of relying on the DOL to notify the
victim.
REPRESENTATIVE SAMUELS suggested changing page 1, lines 13-15,
such that it would read in part: "office of victims' rights,
and the victim if the victim has been a victim of a crime
against a person, a crime involving domestic violence, or arson
in the first degree, the board shall send notice of an
application". Such a change would ensure that the State Board
of Parole would notify the victim; then, internally, the State
Board of Parole can institute an internal procedure for those
that don't wish to be notified. He said he would trust the
[State Board of Parole] to use its best judgment with regard to
doing as much as it can to contact the victim, and pointed out
that there are just not that many cases that result in a pardon,
and thus there won't be a big onus on the [State Board of
Parole]. He opined, however, that the bill should be limited to
those victims currently listed in the bill - victims of a crime
against a person, a crime involving domestic violence, or arson
in the first degree - and not victims of just any crime.
MS. HENRY mentioned, also, that there is a chance that the OVR
won't have had a particular victim as one of its clients and
thus couldn't take any action to notify the victim.
REPRESENTATIVE SAMUELS expressed an interest in offering a
conceptual amendment that would [satisfy members' concerns].
REPRESENTATIVE GRUENBERG referred to [Article I, Section 24, of
the Alaska State Constitution], and offered his belief that
victims also have the right to request a hearing prior to the
governor making a determination regarding whether to grant
executive clemency.
1:56:44 PM
KATHERINE HANSEN, Interim Director, Associate Victims' Rights
Advocate, Office of Victims' Rights (OVR), Alaska State
Legislature, relayed that she would be testifying in support of
HB 69. The bill, she remarked, does three things: it gives
victims advance notice of proposed clemency; it creates uniform
procedures for clemency applications; and it ensures that the
[governor] has the information needed to make an informed
clemency decision. She relayed that in her experience, as both
a prosecutor and a victims' rights advocate, she has often
witnessed the devastating emotional, financial, and even
physical consequences that crime victims face. Often the only
closure or peace that victims are able to receive comes from the
finality of judgment. In victim impact statements, victims have
recounted that although necessary for a successful sentencing
procedure, it is very difficult for them to have to relive and
rethink about the crime and relay the experience to others -
often strangers, and often in a public forum.
MS. HANSEN said that when the process is interrupted - either by
an appeal, a discretionary parole application, or any type of
post conviction relief requested by the defendant - it can often
have devastating effects on the victim involved because it
reopens emotional wounds and can create a situation in which a
victim is at risk of losing hope that the criminal justice
system is fair and functioning. House Bill 69, she remarked,
would set forth the procedures which would allow the
constitutional right of victims to be treated with dignity,
respect, and fairness - throughout the process - to be
fulfilled. She said she supports the bill, and has reviewed the
original bill and proposed amendments, adding that she would
support amendments that would provide notice directly to the
victim; that would state a time limit - within receipt of the
application - that notification go to the victim; that would
remove the requirement that the victim affirmatively request
notice; and that would provide victims of all crimes notice of
any clemency applications.
MS. HANSEN asked that the two references to the OVR be removed
from the [bill] and be replaced with the term, "the victim";
such a change would mean that there would be one less layer that
the notification would have to go through. The OVR has the
authority to represent crime victims, but only if the victim
affirmatively contacts the OVR and requests assistance in
writing. In response to a question, she pointed out that by
keeping references to the OVR in the bill, the OVR would be
receiving notice of clemency applications regardless of whether
the victim was actually a client, and the OVR might then be put
in the position of soliciting business. She also noted that
various provisions of statute already stipulate that victims
shall maintain a current, valid mailing address on file with the
[State Board of Parole], adding that she supports "reasonable
requirements to notify the victim - something that would go to
the victim's last known address" - but requiring a victim to
affirmatively request to be notified could effectively thwart
the notification process.
MS. HANSEN, in response to an earlier point of discussion, noted
that according to Black's Law Dictionary, the term "reprieve" is
different from other types of clemency in that it is a temporary
relief from or postponement of execution of criminal punishment
or sentence.
2:01:25 PM
SUSAN SULLIVAN, Executive Director, Victims for Justice (VFJ),
relayed that the VFJ supports HB 69. She then pointed out that
although proposed AS 33.20.080(a) uses the phrase, "notice
required under (b) of this section has been provided", proposed
AS 33.20.080(b) actually references two different types of
notice. She suggested that it be clarified which type of notice
is being referenced in subsection (a) - which type of notice
will actually trigger the requirement in subsection (a). On the
issue of notifying victims, she asked which statutory definition
of "victim" the bill is referencing and whether the bill itself
should contain a definition of "victim". She also expressed
concern with the phrase "If requested by the victim", and urged
that all reasonable efforts be made to find a victim in order to
give him/her notice, adding that the VINE network could be
helpful in that regard and so perhaps the bill or accompanying
regulations could specifically reference the VINE program.
2:04:21 PM
MERCEDES ANGERMAN said she wishes that this type of dialog could
have occurred when the pardon was being considered [by Governor
Murkowski], adding that the pardons, particularly that which
pertained to Gary Stone, made her feel like a victim because her
brother, too, was killed in an accident involving Whitewater
Engineering Corporation, though in that situation there was not
a criminal conviction and so even had the proposed bill been in
place, she would not have been notified of the pardon.
Nevertheless, she remarked, the death of her brother was just as
hard on her family as was the death of Mr. Stone on his family,
and the conviction of Whitewater Engineering Corporation felt
like justice had been done for her family as well as for Mr.
Stone's family.
MS. ANGERMAN went on to say:
When I heard of what Governor Murkowski did with the
stroke of a pen, it was devastating, and I'm sure
devastating to the family of Gary Stone as well as the
Angerman family in Wrangell. I totally support having
the victims be notified and having the [State Board of
Parole] try to locate the victims. With the small
number of these pardons that occur I think that it's
reasonable to find somebody, [particularly] with the
Internet and all the technology we have today. ... I
also just want to add that this type of dialog exposes
a lot of other things that go beyond the first victim
... of a crime, and it exposes all of the other people
and communities that were really touched and involved
in this, such as my family, the Angermans in Wrangell,
and that entire community - they'd lost a member of
their community and an Alaskan.
And I want to move on and I want to stop being angry,
and we can't change what Governor Murkowski did, ...
and I want to thank ... Representative Samuels and the
other co-sponsors of House Bill 69 for moving [in] a
positive direction to make positive change so that no
other families have to have their only justice
stripped from them by a stroke of a pen for whatever
reason the governor felt that that was needed. ... We
were really blindsided by this, and if there was a
notification system in place, at least people wouldn't
be blindsided and devastated by a newspaper article
without having an opportunity to speak on behalf of
victims and victims' families.
MS. ANGERMAN sought clarification that HB 69 would ensure that a
deceased victim's family be notified. In conclusion, she urged
[members'] support of HB 69.
2:08:39 PM
REPRESENTATIVE SAMUELS offered his understanding that in
situations involving murder, one member of the victim's family
is designated by the court system or by the VINE program to be
the main contact for the family. He then paraphrased from the
definition of "victim" [as outlined in AS 12.55.185]:
(19) "victim" means
(A) a person against whom an offense has been
perpetrated;
(B) one of the following, not the perpetrator, if
the person specified in (A) of this paragraph is a
minor, incompetent, or incapacitated:
(i) an individual living in a spousal
relationship with the person specified in (A) of this
paragraph; or
(ii) a parent, adult child, guardian, or
custodian of the person;
(C) one of the following, not the perpetrator, if
the person specified in (A) of this paragraph is dead:
(i) a person living in a spousal
relationship with the deceased before the deceased
died;
(ii) an adult child, parent, brother,
sister, grandparent, or grandchild of the deceased; or
(iii) any other interested person, as may be
designated by a person having authority in law to do
so.
MS. HENRY, in response to questions, said that there is not a
rule in the Alaska Rules of Appellate procedure that pertains to
executive clemency, and that although the Alaska State
Constitution doesn't give a victim the right to request or
participate in a hearing involving a potential pardon, the bill
[and current law] does provide that the victim may comment in
writing to the State Board of Parole regarding an application
for executive clemency. She added her belief that that
provision as well as the notification provision proposed by the
bill ought to address any concerns regarding the victim's
rights.
2:16:49 PM
REPRESENTATIVE SAMUELS, in response to a question, said that
he'd not done any research into what other states do with regard
to victim notification because he was basing the bill on the
provisions currently in the Alaska State Constitution.
MS. HANSEN said that the OVR had not done any research with
regard to what other states do either. She mentioned that one
might argue the point that a victim does have a constitutional
right to be heard in matters pertaining to executive clemency,
though not if the defendant is not going to be present, because
a victim may only be present in situations where the defendant
is also present.
CHAIR RAMRAS relayed that the committee would set HB 69 aside
and address proposed amendments to it [at the bill's next
hearing].
HB 76 - CIVIL LEGAL SERVICES FUND
2:18:45 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 76, "An Act relating to the creation of a civil
legal services fund."
REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee
substitute (CS) for HB 76, Version 25-LS0349\C, Bailey, 1/17/07,
as the work draft. There being no objection, Version C was
before the committee.
CHAIR RAMRAS noted that similar legislation had been considered
by the previous legislature but had not made it completely
through the process.
2:20:14 PM
EMILY STANCLIFF, Staff to Representative Jay Ramras, Alaska
State Legislature, on behalf of Representative Ramras, one of
the bill's prime sponsors, explained that HB 76 would establish
a civil legal services fund into which the Legislature can
appropriate the state's share of punitive damage awards -
current statute stipulates that 50 percent of punitive damage
awards are to be deposited into the state's general fund (GF);
would allow the legislature to appropriate money from the civil
legal services fund and give it to organizations that provide
civil legal services for low-income Alaskans; and would define
low income as equal to or less than 125 percent of the most
recent federal poverty guidelines for Alaska set by the U.S.
Department of Health and Human Services (DHHS).
MS. STANCLIFF offered that HB 76 will give low-income Alaskans
greater access to legal services; will address the current
inadequate funding of organizations that provide legal services;
will provide funding for those legal services using punitive
damage awards for egregious offenses rather than draining other
sources of funding; and will aid in making the Alaska Court
System (ACS) more efficient. She elaborated on the latter point
by noting that when individuals resort to representing
themselves in court it can have the effect of slowing down the
judicial process because judges then have to take more time
explaining procedure and assisting such individuals with the
technical aspects of a court case. She concluded by indicating
that it is [the sponsors'] hope that HB 76 will help provide
legal services to low-income Alaskans by providing funding for
those services.
2:22:19 PM
ANDY HARRINGTON, Executive Director, Alaska Legal Services
Corporation (ALSC), offered examples of the types of people who
might be seeking assistance from the ALSC, adding that they are
all people who will not have been charged with a crime and thus
won't be appointed an attorney by the courts. Remarking that
the ALSC is still inadequately staffed, he characterized those
who do work for the ALSC as dedicated, skilled, and woefully
underpaid, adding that ALSC staff speak to potential clients,
analyze whether what has happened to them is legally
justifiable, and, if it isn't, take the necessary steps to try
to get the wrong rectified. Also among his staff, he relayed,
is a pro bono coordinator who specializes in convincing private
attorneys to represent indigent clients once a year on a
volunteer basis.
MR. HARRINGTON expressed a desire to do something about the fact
that his staff is underpaid, and recounted that about 25 years
ago the state was appropriating approximately $1.2 million for
the ALSC - allowing the ALSC to have about twice as many staff
as it now has, and to maintain additional offices in other parts
of the state than are maintained now - but the ALSC hasn't
received an appropriation from the legislature since 2004
because Governor Murkowski line-item vetoed the fiscal year 2005
(FY 05) proposed legislative appropriation. Furthermore,
certain funding previously received from the Legal Services
Corporation (LSC) has been eliminated; funding from the Alaska
Bar Foundation's Interest on Lawyer Trust Accounts ("IOLTA
funds") has decreased; and statutory changes now prohibit ALSC
attorneys from receiving attorney fees.
MR. HARRINGTON said that when the ALSC is able to represent
someone who would otherwise be unrepresented, the ACS is able to
do its job more efficiently because judges won't have to spend
time explaining procedure and points of law to unrepresented
litigants. And although the vast majority of cases the ALSC
undertakes involve representing people in state court, federal
funding for the ALSC far outweighs state funding. He went on to
say:
This bill uses high-stakes civil cases to help ...
low-income Alaskans who have what may seem like low-
stakes case. Although when it's your own paycheck, or
when it's you own family shelter, or when it's your
own child who's been taken, or when it's your own
right to be free from domestic violence and abuse, the
stakes don't seem that low. ... This bill is needed
because some things that are happening to constituents
in your districts and other districts are illegal,
things that ... have a legal remedy that they could
use to rectify if they knew what that was, and if you
give us the tools, we can help with that. Needless to
say, I'm in support of the bill, and I appreciate the
committee's time and consideration.
2:27:42 PM
REPRESENTATIVE GRUENBERG, commenting on similar legislation
offered during the previous legislature, asked why the words, ",
less the costs of collection, if any, incurred by the state"
have been removed in Version C of HB 76.
MR. HARRINGTON offered that although during the previous
legislature then-Acting Attorney General Nordstrand had said -
with regard to that similar legislation - that he didn't want
the DOL to lose money because of its efforts to track punitive
damage awards, Legislative Legal and Research Services has since
outlined in a memorandum dated 12/28/06 why such language might
not be needed.
REPRESENTATIVE GRUENBERG noted that AS 09.17.020(j) - which is
referenced in Section 2 of Version C - says: "(j) If a person
receives an award of punitive damages, the court shall require
that 50 percent of the award be deposited into the general fund
of the state. This subsection does not grant the state the
right to file or join a civil action to recover punitive
damages." He said he is concerned with the language in that
provision which says that the State has no right to intervene in
the punitive damage phase of a case; that prohibition seems
unfair given that the State will be getting 50 percent of any
punitive damage award - the State should have a right to
intervene on that point. He pondered whether AS 09.17.020(j)
ought to be amended to allow the State to intervene, or, if the
money is to go to the ALSC, be amended to allow the ALSC to
intervene.
MR. HARRINGTON surmised that the prohibition outlined in AS
09.17.020(j) was meant to ensure that intervening in the
punitive damage phase of a case does not become a profit-making
venture for the State. He offered his belief that under current
practice, once a punitive damage award has been entered, the
State does take a role in ensuring that the State's share of
that award "gets recognized." He mentioned that because AS
09.17.020(j) does not specifically preclude the ALSC from
intervening in the punitive damage phase of a case, the ALSC
might to be able follow up on Representative Gruenberg's
suggestion without there being a change in statute.
2:34:23 PM
REPRESENTATIVE SAMUELS noted that HB 76 merely creates an
account in the GF - an account which may or may not be funded -
and has nothing to do with tort reform.
CHAIR RAMRAS agreed, and pointed out that any funds which might
be appropriated to the proposed civil legal services fund can't
be dedicated and thus there is no actual nexus between those
funds and the ALSC.
MR. HARRINGTON concurred.
REPRESENTATIVE DAHLSTROM sought assurance that any monies which
might be appropriated from the proposed civil legal services
fund won't be used to defend [alleged] guilty parties, and asked
whether the establishment of the fund and the making of
appropriations from it will raise questions of entitlement
should the legislature either stop making, or decrease the
amount of, such appropriations. She also asked whether the ALSC
would continue operating even if no monies from the fund were
forthcoming.
MR. HARRINGTON reiterated that the ALSC doesn't represent people
who've been charged with a crime, people who are incarcerated,
or people whose cases have no merit. With regard to the
question of the state's obligation once the civil legal services
fund is established, he said that the ALSC "is not an
entitlement program," and explained that the ALSC receives most
of its funding from the LSC, and that the ALSC has an ethical
responsibility to follow through on all of its ongoing cases.
MR. HARRINGTON mentioned that he and the ALSC board of directors
understand that the amount of possible appropriations from the
proposed fund is apt to fluctuate, and so will not be counting
on punitive damages in any given year being a certain amount,
particularly given that future legislatures cannot be bound with
regard to what appropriation decisions to make. Should there
ever be a punitive damage award that results in the State
receiving millions of dollars, he would be surprised, he
remarked, if the legislature were to give the ALSC all of it;
although HB 76 is a vehicle that could be used to provide the
ALSC with funding, it is one that the legislature has discretion
over from year to year.
2:41:16 PM
MR. HARRINGTON, in response to questions, reiterated his
understanding that HB 67 won't create an entitlement; said that
although the ALSC is allowed to give legal advice to someone who
is incarcerated, it is not allowed to actually represent or file
a lawsuit for such a person; and explained that the ALSC is a
501(c)(3) nonprofit corporation, and receives funds from the
federal government, from some local municipality grants, from
some local regional Native nonprofit organizations, and from a
private fund raising campaign called the [Robert Hickerson
Partners in Justice Campaign].
REPRESENTATIVE COGHILL expressed concern with the language on
page 1, lines 8-9, that says, "may appropriate to the fund the
amount deposited into the general fund of the state under AS
09.17.020(j)" because that language could be interpreted to mean
all of that amount.
MR. HARRINGTON concurred with that interpretation, but again
pointed out that the legislature has the discretion to
appropriate less than that amount should it so choose.
REPRESENTATIVE COGHILL suggested altering the aforementioned
language to say something along the lines of, "may appropriate
to the fund from the amount deposited into the general fund of
the state under AS 09.17.020(j)". Such a change would clarify
that the legislature does not have to appropriate to the
proposed civil legal services fund all of the amount that the
State receives from punitive damage awards, particularly given
that there might be other entities aside from the ALSC that feel
they should receive such funds as well.
MR. HARRINGTON, in response to a question, relayed that the ALSC
currently has offices in Anchorage, Fairbanks, Juneau, Bethel,
Dillingham, Ketchikan, Nome, and Kotzebue.
2:45:58 PM
KARA NYQUIST, Executive Director, Alaska Pro Bono Program, Inc
(APBP), noted that there are only a few organizations in the
state that provide legal services to low-income Alaskans, that
there are federal restrictions regarding how LSC monies can be
spent, and that the APBP was started in 2000 and was able to
serve just under 100 individuals last year on a budget of only
$50,000; thus there should be no question of how effective
monies from the proposed civil legal services fund could be -
regardless of how much or how little that funding turned out to
be. Last year the APBP served "some of the overflow" from the
ALSC as well as some individuals whom the ALSC could not
represent; the APBP locates attorneys who are willing to donate
their time to handle cases, and money that [the APBP receives]
is used to pay for filing fees, court reporter fees, and other
such costs.
MS. NYQUIST relayed that the pro bono attorneys in the APBP
"place" and monitor the cases, and that the APBP, filing jointly
with the ALSC, seeks IOLTA funds. The first year the APBP
received over $200,000 of IOLTA funds but that amount is now
down to approximately $26,000; additional funds have sometimes
also come from attorneys and attorney fees awards. The judicial
system is not patient, she remarked, particularly with non-
English speaking individuals, and went on to recount some of the
situations that have arisen for such individuals and how
attorneys in the APBP have aided them. Such individuals, she
added, can end up costing "the system" more money if they are
not given the legal assistance they need.
MR. HARRINGTON, in response to a question, relayed that the
Alaska Bar Association (ABA) set up the Alaska Bar Foundation
(ABF) which in turn administers the IOLTA.
MS. NYQUIST, in response to a question, indicated that the APBP
has handled some immigration cases in the past, though now the
APBP simply assists immigrants with their civil legal issues
such as landlord-tenant issues or family law issues or
protective order issues.
2:51:56 PM
MR. HARRINGTON offered his understanding that although there are
other programs that offer legal aid, most of them don't set
income limits on eligibility; HB 76 is designed to focus on just
those organizations that set "income and asset ceilings" beneath
which people have to fall in order to qualify for
representation.
CHAIR RAMRAS, in response to questions and comments regarding
the definition of "low-income individual", said that as one of
the prime sponsors of HB 76, he would prefer to use the
definition currently in Version C, that definition being: "an
individual with an income equal to or less than 125 percent of
the most recent federal poverty guidelines for Alaska set by the
United States Department of Health and Human Services".
MR. HARRINGTON, in response to a question, relayed that the ALSC
handles between 1,700 and 2,000 cases per year, and that those
cases are likely to involve domestic violence situations;
landlord-tenant disputes; consumer protection issues; federal
benefit and Native allotment disputes; issues involving wills,
probates, and estates; and bankruptcy and debt collection
issues. He added that in each of the aforementioned cases,
there could be several people in each household, and thus the
ALSC has probably helped between 5,000 and 10,000 people in
years when it has undertaken 2,000 cases, for example. If the
ALSC were better staffed, he concluded, it could help even more
people.
CHAIR RAMRAS, in response to a question, opined that the
language which has been deleted from Version C - ", less the
costs of collection, if any, incurred by the state" - is no
longer relevant because "it's very discretionary, what the
legislature is going to allocate, if anything, out of punitive
damage awards."
REPRESENTATIVE GRUENBERG asked whether the [deleted] phrase,
"costs of collection" applied only to what he termed "post-
judgment collection."
MR. HARRINGTON offered his belief that the [deleted phrase]
referred to the costs of collection incurred by the State in
following up on the State's claim, not the costs incurred by the
plaintiff's attorney in either obtaining the award in the first
place or in taking collection actions on that award.
CHAIR RAMRAS indicated that HB 76 [Version C] would be held
over.
ADJOURNMENT
3:00:24 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:00 p.m.
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