Legislature(1993 - 1994)

01/26/1994 01:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        January 26, 1994                                       
                            1:15 p.m.                                          
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Rep. Brian Porter, Chairman                                                  
  Rep. Pete Kott                                                               
  Rep. Gail Phillips                                                           
  Rep. Joe Green                                                               
  Rep. Cliff Davidson                                                          
  Rep. Jim Nordlund                                                            
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
  Rep. Jeannette James, Vice Chair                                             
                                                                               
  OTHER LEGISLATORS PRESENT                                                    
                                                                               
  Rep. Ed Willis                                                               
  Rep. Bettye Davis                                                            
  Rep. Al Vezey                                                                
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
  SCR 4:    Relating to the Alaska Supreme Court's                             
            interpretation of Alaska Rule of Civil Procedure                   
            82 and requesting that the court modify its                        
            interpretation of that rule."                                      
                                                                               
            MOVED OUT OF COMMITTEE                                             
                                                                               
  HB 162:   "An Act authorizing capital punishment,                            
            classifying murder in the first degree as a                        
            capital felony, and establishing sentencing                        
            procedures for capital felonies; authorizing an                    
            advisory vote on instituting capital punishment;                   
            and providing for an effective date."                              
                                                                               
            HEARD AND HELD                                                     
                                                                               
  WITNESS REGISTER                                                             
                                                                               
  KEVIN SULLIVAN, Legislative Aide                                             
  Senator Robin Taylor                                                         
  Alaska State Legislature                                                     
  State Capitol, Room 30                                                       
  Juneau, Alaska  99801-1182                                                   
  Phone:  465-3873                                                             
  POSITION STATEMENT:  Testified on behalf of Senator Robin                    
                       Taylor, Prime Sponsor of SCR 4.                         
                                                                               
  RUSSELL HEATH, Executive Director                                            
  Alaska Environmental Lobby                                                   
  P.O. Box 22151                                                               
  Juneau, Alaska  99802                                                        
  Phone:  463-3366                                                             
  POSITION STATEMENT:  Testified against SCR 4.                                
                                                                               
  TROY REINHART                                                                
  Alaska Forest Association                                                    
  111 Steadman, #200                                                           
  Ketchikan, Alaska  99901                                                     
  Phone:  225-6114                                                             
  POSITION STATEMENT:  Testified in favor of SCR 4.                            
                                                                               
  EMILY BARNETT                                                                
  Trustees for Alaska                                                          
  725 Christensen Dr.                                                          
  Anchorage, Alaska                                                            
  Phone:  276-4244                                                             
  POSITION STATEMENT:  Testified against SCR 4.                                
                                                                               
  MARY A. NORDALE, President                                                   
  Alaska Miners Association                                                    
  P.O. Box 21211                                                               
  Juneau, Alaska  99802                                                        
  Phone:  586-3340                                                             
  POSITION STATEMENT:  Testified in favor of SCR 4                             
                                                                               
  REP. JERRY SANDERS                                                           
  Alaska State Legislature                                                     
  State Capitol, Room 13                                                       
  Juneau, Alaska  99811                                                        
  Phone:  465-4945                                                             
  POSITION STATEMENT:  Prime Sponsor of HB 162                                 
                                                                               
  JERRY LUCKHAUPT                                                              
  Legislative Legal Counsel                                                    
  Legislative Affairs Agency                                                   
  130 Seward Street                                                            
  Juneau, Alaska  99801                                                        
  Phone:  465-2450                                                             
  POSITION STATEMENT:  Drafted HB 162 and the Sponsor                          
  Substitute                                                                   
                                                                               
  DEAN GUANELI                                                                 
  Assistant Attorney General                                                   
  Criminal Division                                                            
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska  99811-0300                                                   
  Phone:  465-3428                                                             
  POSITION STATEMENT:  Available to answer questions                           
                                                                               
  BISHOP MICHAEL KENNY                                                         
  Catholic Diocese of Juneau                                                   
  419 Sixth Street                                                             
  Juneau, Alaska  99801                                                        
  Phone:  586-2227                                                             
  POSITION STATEMENT:  Testified against HB 162                                
                                                                               
  TERRY BURRELL                                                                
  P.O. Box 8                                                                   
  Anchorage, Alaska  99510                                                     
  Phone:  563-4454                                                             
  POSITION STATEMENT:  Testified in favor of HB 162                            
                       (via teleconference)                                    
                                                                               
  MIKE WALLERI, Chief Counsel                                                  
  Tanana Chief's Conference                                                    
  129 - 1st Ave., Suite 600                                                    
  Fairbanks, Alaska  99707                                                     
  POSITION STATEMENT:  Testified against HB 162                                
                       (via teleconference)                                    
                                                                               
  JANICE PRESTON                                                               
  P.O. Box 394                                                                 
  Homer, Alaska  99603                                                         
  POSITION STATEMENT:  Testified in favor of HB 162                            
                       (via teleconference)                                    
                                                                               
  CHARLES CAMPBELL, Former Director                                            
  Department of Corrections                                                    
  3020 Douglas Highway                                                         
  Juneau, Alaska  99801                                                        
  POSITION STATEMENT:  Testified against HB 162                                
                                                                               
  MARY S. SOLTIS                                                               
  615 DeGroff                                                                  
  Sitka, Alaska  99835                                                         
  POSITION STATEMENT:  Testified against HB 162                                
                       (via teleconference)                                    
                                                                               
  RICH CURTNER, Attorney                                                       
  24506 Teal Loop                                                              
  Anchorage, Alaska  99567                                                     
  POSITION STATEMENT:  Testified against HB 162                                
                       (via teleconference)                                    
                                                                               
  PREVIOUS ACTION                                                              
                                                                               
  BILL:  SCR  4                                                                
  SHORT TITLE: REQUEST CHANGE IN RULE 82 FEES                                  
  SPONSOR(S): SENATOR(S) TAYLOR                                                
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  03/29/93       974    (S)   READ THE FIRST TIME/REFERRAL(S)                  
  03/29/93       974    (S)   JUDICIARY                                        
  04/05/93              (S)   JUD AT 01:30 PM BELTZ ROOM 211                   
  04/06/93              (S)   JUD AT 01:30 PM BELTZ ROOM 211                   
  04/12/93              (S)   JUD AT 01:30 PM BELTZ ROOM 211                   
  04/12/93              (S)   MINUTE(JUD)                                      
  04/12/93              (S)   MINUTE(JUD)                                      
  04/13/93      1331    (S)   JUD RPT  3DP 1NR                                 
  04/13/93      1331    (S)   ZERO FISCAL NOTE (S.JUD)                         
  04/14/93              (S)   MINUTE(RLS)                                      
  04/16/93      1440    (S)   RULES RPT  3CAL 1NR   4/16/93                    
  04/16/93      1449    (S)   READ THE SECOND TIME  SCR 4                      
  04/16/93      1449    (S)   PASSED Y11 N9                                    
  04/16/93      1449    (S)   DUNCAN NOTICE OF RECONSIDERATION                 
  04/18/93      1462    (S)   HELD ON RECONSIDERATION TO                       
                              4/19/93                                          
  04/19/93      1554    (S)   RECONSIDERATION TAKEN UP                         
  04/19/93      1554    (S)   PASSED ON RECONSIDERATION Y11 N9                 
  04/19/93      1555    (S)   TRANSMITTED TO (H)                               
  04/20/93      1346    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  04/20/93      1346    (H)   JUDICIARY                                        
  04/23/93              (H)   JUD AT 01:30 PM CAPITOL 120                      
  04/23/93              (H)   MINUTE(JUD)                                      
  01/21/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  01/21/94              (H)   MINUTE(JUD)                                      
  01/26/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
                                                                               
                                                                               
  BILL:  HB 162                                                                
  SHORT TITLE: CAPITAL PUNISHMENT FOR MURDER                                   
  BILL VERSION: SSHB 162                                                       
  SPONSOR(S): REPRESENTATIVE(S)                                                
  SANDERS,Olberg,Bunde,Kott,Vezey, James                                       
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  02/18/93       380    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  02/18/93       380    (H)   JUDICIARY, FINANCE                               
  02/22/93       421    (H)   COSPONSOR(S): BUNDE                              
  02/24/93       445    (H)   COSPONSOR(S): KOTT                               
  03/01/93       495    (H)   COSPONSOR(S): VEZEY                              
  03/02/93       510    (H)   COSPONSOR(S): JAMES                              
  11/16/93              (H)   MINUTE(JUD)                                      
  11/16/93              (S)   MINUTE(JUD)                                      
  01/19/94      2109    (H)   SPONSOR SUBSTITUTE                               
                              INTRODUCED-REFERRALS                             
  01/19/94      2109    (H)   JUDICIARY, FINANCE                               
  01/26/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
                                                                               
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 94-9, SIDE A                                                            
  Number 000                                                                   
                                                                               
  The House Judiciary Standing Committee was called to order                   
  at 1:20 p.m. on January 26, 1994.  A quorum was present.                     
  Chairman Porter announced that the committee would address                   
  SCR 4 first.                                                                 
  SCR 4 - REQUEST CHANGE IN RULE 82 FEES                                       
                                                                               
  Number 053                                                                   
                                                                               
  KEVIN SULLIVAN, legislative aide to Senator Robin Taylor,                    
  Prime Sponsor of SCR 4, testified on behalf of the sponsor.                  
  He read from a prepared sponsor statement, which stated the                  
  purpose of this resolution is to petition the supreme court                  
  to review the special status afforded public interest groups                 
  in the award of attorney fees under Rule 82 of the Alaska                    
  Rules of Civil Procedure.  Mr. Sullivan said that for all                    
  Alaskans, except special interest groups, Rule 82 provides                   
  partial repayment of attorney fees to the prevailing party                   
  by the losing party, and the rule is designed to discourage                  
  frivolous litigation and tends to reduce the judicial                        
  caseload as a result.  He continued, saying the exception to                 
  this rule is public interest litigation; and based on the                    
  supreme court's exception for public interest litigants,                     
  Rule 82 provides an economic incentive to various groups to                  
  sue because full attorney fees are paid to the public                        
  interest group if they prevail, and no attorney fees are                     
  charged if it loses.                                                         
                                                                               
  MR. SULLIVAN explained this raises a number of public policy                 
  issues.  He noted point number one:  What is a public                        
  interest that the court is protecting with this rule 82                      
  exception?  He gave an example and asked if it was really in                 
  the public interest for environmental groups to sue to close                 
  down businesses in Alaska.  He continued with point number                   
  two:  How much of a legal subsidy is realized by these                       
  groups and who pays for it?  His third point asked if it was                 
  good public policy to encourage litigation by groups the                     
  supreme court has decided to favor, and how much does the                    
  supreme court's policy cost the state of Alaska.                             
                                                                               
  MR. SULLIVAN said certain groups are being encouraged to                     
  litigate because the state is compelled by the court to                      
  partially fund those groups with money from other Alaskans,                  
  including appropriated funds from the state.                                 
                                                                               
  MR. SULLIVAN summarized, saying as Rule 82 is currently                      
  interpreted by the court, certain parties are encouraged                     
  with significant economic incentives to bring litigation                     
  against the state.  He asked whether the interest of the                     
  public is truly being served by these public interest                        
  parties, which is also at issue.  He concluded, saying the                   
  state is being directed to subsidize these questionable                      
  public interest litigants at great expense to the public                     
  itself, and SCR 4 encourages the supreme court to review                     
  these issues.                                                                
                                                                               
  Number 137                                                                   
                                                                               
  REP. NORDLUND said that SCR 4, in the resolves, seems to be                  
  targeting those groups that somehow deal with or oppose mass                 
  resource development in the state.  He asked if it was                       
  constitutional to target specific public interest groups.                    
                                                                               
  Number 160                                                                   
                                                                               
  MR. SULLIVAN replied that "targeting" was perhaps a                          
  different way of describing it, and the legislation lists a                  
  name of a group as an example; and from a constitution                       
  perspective it doesn't seem to particularly impact it.                       
                                                                               
  MR. SULLIVAN went on to say that the court, through case                     
  law, has come up with a determination on what is public                      
  interest litigation, and SCR 4 is simply a resolution asking                 
  the supreme court to review Rule 82 as it currently applies                  
  to public interest litigants.                                                
                                                                               
  Number 192                                                                   
                                                                               
  REP. NORDLUND told the committee that it seems ridiculous to                 
  state "groups founded to oppose natural resource                             
  development" and ask if there are any environmental groups                   
  that would state that as their mission.                                      
                                                                               
  Number 199                                                                   
                                                                               
  MR. SULLIVAN said he wasn't in a position to speak for what                  
  environmental groups may say in their mission statements,                    
  but that particular portion of the resolution is speaking to                 
  historically what has been presented in the courts by                        
  parties that were litigating specific situations in terms of                 
  trying to impede or inhibit further resource development.                    
                                                                               
  Number 208                                                                   
                                                                               
  REP. GREEN asked if an amendment might help Rep. Nordlund's                  
  concerns and suggested different wording.                                    
                                                                               
  Number 218                                                                   
                                                                               
  REP. PORTER suggested it would be in the committee's best                    
  interest to hear all the testimony before proposing                          
  amendments.                                                                  
                                                                               
  Number 217                                                                   
                                                                               
  REP. DAVIDSON asked Mr. Sullivan if he could expand on which                 
  litigant groups have gained significantly economic advantage                 
  as a result of bringing public interest litigation.                          
                                                                               
  Number 220                                                                   
                                                                               
  MR. SULLIVAN responded that the significant economic                         
  incentive is the fact that as Rule 82 currently stands,                      
  should the party lose they would not be obligated to pay for                 
  the reasonable attorney costs of the defendant because they                  
  are determined to be public interest litigants, so it is a                   
  net savings in retrospect instead as opposed to up-front.                    
                                                                               
  Number 254                                                                   
                                                                               
  REP. DAVIDSON asked Mr. Sullivan if from his perspective it                  
  is an economic gain for the group.                                           
                                                                               
  Number 255                                                                   
                                                                               
  MR. SULLIVAN stated that should a case be brought, and it's                  
  determined that the case is without merit, under current law                 
  if the plaintiff was not determined to be a public interest                  
  litigant, then that entity would be responsible for a                        
  portion of the reasonable attorney fees of the defendant.                    
  He said by being classified by the court as a public                         
  interest litigant, they are not responsible for the payment                  
  of those fees to the other party.                                            
                                                                               
  Number 279                                                                   
                                                                               
  REP. DAVIDSON said according to Mr. Sullivan's                               
  interpretation, people bring litigation because they know                    
  they can't win, but it will cost the people they are                         
  bringing the litigation against.                                             
                                                                               
  Number 286                                                                   
                                                                               
  MR. SULLIVAN replied no, and said he is not asserting that                   
  any litigant is bringing a claim which they know they can't                  
  win; he's simply saying that public interest litigants, if                   
  they lose, are not responsible for the fees of the other                     
  party; therefore, that would enter into a decision on what                   
  claims to pursue.                                                            
                                                                               
  Number 303                                                                   
                                                                               
  RUSSELL HEATH, Executive Director, Alaska Environmental                      
  Lobby, testified against SCR 4.  He said the Alaska                          
  Environmental Lobby is a coalition of twenty Alaskan                         
  environmental groups, and his organization represents their                  
  interests in the Alaska State Legislature.  Mr. Heath                        
  described the differences between a public interest lawsuit                  
  and a private lawsuit, and said the vast majority of public                  
  interest lawsuits are against state and local governments,                   
  not against private individuals or corporations.  He said                    
  this is because there is no citizen suit provision in Alaska                 
  statutes.                                                                    
                                                                               
  Number 509                                                                   
                                                                               
  TROY REINHART, Executive Director, Alaska Forest Association                 
  (AFA), testified in favor of SCR 4.  He said AFA believes                    
  the current exception to Rule 82, which allows public                        
  interest groups to file litigation without risk of paying                    
  legal bills of those being sued, if they lose, only promotes                 
  frivolous lawsuits.  Mr. Reinhart said the current exception                 
  to Rule 82 is bad public policy and must change, and if Rule                 
  82 was changed, it would level the litigation playing field,                 
  although it would still provide public access to the courts                  
  for those seeking to settle disagreements and would also                     
  ensure that so-called public interest groups cannot file                     
  lawsuits against companies or individuals without at least                   
  being confident of prevailing or being assessed court costs.                 
                                                                               
  REP. DAVIDSON asked Mr. Reinhart if AFA subscribes to the                    
  statement that was made in the sponsor's comments that the                   
  supreme court favors a certain group over another.                           
                                                                               
  Number 550                                                                   
                                                                               
  MR. REINHART answered that his concern is particularly with                  
  environmental litigation that has been filed against his                     
  industry, and AFA believes that the way the current                          
  situation is set up, it's an unlevel playing field where                     
  environmental groups have all of an upside and no downside,                  
  and it actually does promote litigation.                                     
                                                                               
  Number 577                                                                   
                                                                               
  REP. NORDLUND reiterated that most of these lawsuits are                     
  filed against government, and certainly they have an effect                  
  on the timber industry.  He asked Mr. Reinhart if by                         
  supporting this resolution he realized that he is asking the                 
  court to take away this exemption for all public interest                    
  groups, including the League of Women Voters, National Rifle                 
  Association, and so on.                                                      
                                                                               
  Number 591                                                                   
                                                                               
  MR. REINHART responded that his interest in this bill, and                   
  that of his organization, is on the environmental side and                   
  that's why he was there to testify.                                          
                                                                               
  Number 595                                                                   
                                                                               
  EMILY BARNETT, Trustees for Alaska, testified against SCR 4,                 
  saying that the resolution has nothing to do with attorneys                  
  and everything to do with public rights and the integrity of                 
  our nation's democratic processes.                                           
                                                                               
  Number 689                                                                   
                                                                               
  REP. PHILLIPS said it appears that Ms. Barnett questioned                    
  the validity of the statement that the supreme court has                     
  interpreted the Alaska Rule of Civil Procedure to allow                      
  litigation organizations to recover full attorney fees.                      
                                                                               
  Number 696                                                                   
                                                                               
  MS. BARNETT replied that she's not questioning that                          
  statement, she's questioning language that would have you                    
  believe it is solely environmental litigation firms that are                 
  getting this privilege under Rule 82.                                        
                                                                               
  Number 713                                                                   
                                                                               
  MARY A. NORDALE, an attorney in private practice in Juneau                   
  and President of the Alaska Miner's Association, testified                   
  in support of SCR 4, saying SCR 4 requests the Alaska                        
  Supreme Court to grant equity among litigants regardless of                  
  which segment of the economy they represent when the                         
  litigation challenges activities for which the state is                      
  granted permits, that is permanent activities.  Ms. Nordale                  
  continued by saying that at the present time the Alaska                      
  Supreme Court casts a protective cloak over those litigants                  
  representing recreation and fishing interests against                        
  litigants who represent other resource related interests.                    
  Ms. Nordale stressed that this apparent preference of some                   
  users over others is contrary to their concepts of equal                     
  protection.                                                                  
                                                                               
  MS. NORDALE said the Alaska Miner's Association believes                     
  that under Article 8, Section 1, all litigants involved in                   
  the development of the state's resources, supporting or                      
  opposing, have equal and constitutionally protected                          
  interests and they should be treated equally.                                
                                                                               
  Number 755                                                                   
                                                                               
  REP. DAVIDSON asked Ms. Nordale how many companies or                        
  individuals in the mining community have had to suffer those                 
  kinds of losses as a result of being up against this unequal                 
  playing field.                                                               
                                                                               
  Number 765                                                                   
                                                                               
  MS. NORDALE replied that there have been several hundred                     
  miners injured substantially because of litigation.  She                     
  said one thing that is important to remember in a lot of                     
  litigation relating to natural resources is that the law                     
  firms that represent the so-called public interest groups                    
  are law firms that are in the business of litigation and                     
  solicit their own clients, and when they can find an                         
  appropriate target client to act as a plaintiff in the case,                 
  then they move forward with the case.  Ms. Nordale said they                 
  also use any victories they achieve as fundraising                           
  mechanisms.                                                                  
                                                                               
  Number 785                                                                   
                                                                               
  REP. DAVIDSON asked if it was the court that determined if                   
  litigation was public interest litigation.                                   
                                                                               
  Number 792                                                                   
                                                                               
  MS. NORDALE responded yes, and she thinks the court has so                   
  narrowly construed the language public interest that SCR 4                   
  can send a very powerful message to the court that it's time                 
  it looked more broadly at the definition.                                    
                                                                               
  Number 797                                                                   
                                                                               
  REP. DAVIDSON asked Ms. Nordale to expand on "narrowly                       
  construed."                                                                  
                                                                               
  Number 798                                                                   
                                                                               
  MS. NORDALE replied that primarily the groups that the                       
  courts designate as public interest are those primarily                      
  involved in recreation and occasionally fishing.                             
                                                                               
  Number 801                                                                   
                                                                               
  REP. PHILLIPS observed that special interest groups run                      
  massive, nationwide campaigns for membership based on the                    
  sole fact that they are litigating this case against an                      
  entity, and this is a significant financial impact, and this                 
  is a significant judicial point the committee should be                      
  considering.                                                                 
                                                                               
  REP. NORDLUND asked Ms. Nordale to clarify the point she was                 
  making about comparing mining or timber companies, and the                   
  interest of that company versus the interest of recreation                   
  and fishing interests.                                                       
                                                                               
  Number 814                                                                   
                                                                               
  MS. NORDALE said she's hoping she's making the case for                      
  allowing mining, recreation, fishing, timber, and so on, all                 
  to be treated equally as being in the public interest under                  
  our constitution.                                                            
                                                                               
  MS. NORDALE continued, saying often a litigation firm will                   
  find a target plaintiff they can represent, a private entity                 
  that would be put to the expense of defending themselves,                    
  not so much to target that particular entity, but to test a                  
  matter of public policy.                                                     
                                                                               
  Number 830                                                                   
                                                                               
  REP. NORDLUND said that a vast majority of the cases are                     
  environmental firms against the state or federal government.                 
                                                                               
  Number 833                                                                   
                                                                               
  MS. NORDALE responded that it always involves a private                      
  business as well, so it doesn't level the playing field.                     
                                                                               
  Number 842                                                                   
                                                                               
  REP. PORTER asked what was the wish of the committee.                        
                                                                               
  Number 850                                                                   
                                                                               
  REP. PHILLIPS moved to move SCR 4 out of committee with                      
  individual recommendations.                                                  
                                                                               
  Number 850                                                                   
                                                                               
  REP. NORDLUND cited his opposition to the bill, primarily                    
  because of the way it was drafted in the "Whereas's."                        
                                                                               
  Number 866                                                                   
                                                                               
  REP. DAVIDSON cited his opposition to SCR 4, and asked to                    
  hear from the supreme court on this issue.                                   
                                                                               
  TAPE 94-9, SIDE B                                                            
  Number 003                                                                   
                                                                               
  REP. PORTER indicated his support for SCR 4, and said he                     
  believes the resolution is intended to be a reflection of                    
  the result of the supreme court's actions and decisions                      
  they've made.  Rep. Porter said he intends to support the                    
  measure because most of the testimony seems to presume that                  
  the only access the public has is through costly litigation,                 
  and that's just not the case.  He cited several avenues                      
  available to interested parties prior to having to litigate.                 
                                                                               
  REP. PORTER also said he believes the advantage flows to                     
  someone of a particular philosophy over someone else of a                    
  particular philosophy, and equity-wise he doesn't believe                    
  that's fair.  He cited one of the unfairnesses as being that                 
  public litigants do receive full compensation for attorney's                 
  fees if they prevail, as opposed to any other litigant under                 
  Rule 82 that would get something between twenty and thirty                   
  percent.                                                                     
                                                                               
  REP. PORTER concluded by saying that responsible development                 
  is in the public interest and this speaks against it, which                  
  is why he is going to vote for SCR 4.                                        
                                                                               
  REP. PHILLIPS pointed out that not only is responsible                       
  development of our natural resources in the best public                      
  interest, it is also mandated in the constitution.                           
                                                                               
  Number 084                                                                   
                                                                               
  REP. PORTER called for a roll call vote on the motion.                       
                                                                               
  Rep. Green     yes       Rep. Kott      yes                                  
  Rep. Nordlund  no        Rep. Phillips  yes                                  
  Rep. Davidson  no        Rep. Porter    yes                                  
                                                                               
  SCR 4 WAS MOVED FROM COMMITTEE WITH INDIVIDUAL                               
  RECOMMENDATIONS.                                                             
  HB 162 - CAPITAL PUNISHMENT FOR MURDER                                       
                                                                               
  Number 087                                                                   
                                                                               
  CHAIRMAN PORTER brought HB 162 to the table.                                 
                                                                               
  Number 110                                                                   
                                                                               
  REP. JERRY SANDERS, Prime Sponsor of HB 162, asked everyone                  
  listening to testimony on this bill to keep in mind that                     
  there are a few people who are not like those of us in this                  
  room, and that it is hard to imagine these cold-blooded                      
  predators who threatened our lives and our loved ones.  He                   
  said even when these people are in custody, they are a                       
  threat to law enforcement and corrections officials, along                   
  with the possibility they might escape and claim more                        
  innocent victims.                                                            
                                                                               
  Number 177                                                                   
                                                                               
  JERRY LUCKHAUPT, Legal Counsel, Division of Legal Services,                  
  Legislative Affairs Agency, indicated that he was the bill                   
  drafter for HB 162 and the Sponsor Substitute (SS), which is                 
  basically identical to SB 127, the Senate version of HB 162.                 
  He outlined the differences, the first being that the SS                     
  lacks findings and does not ask for an election to seek the                  
  death penalty, making it a permissible sentencing option.                    
  Mr. Luckhaupt said the next difference relates to the                        
  description of the jury finding mitigating or aggravating                    
  factors.  He said the final change is that the SS lacks                      
  flagging Rules of Court, meaning the legislature must have a                 
  two-thirds majority to change court rules, and the SS does                   
  not require that vote.                                                       
                                                                               
  MR. LUCKHAUPT continued by saying the SS is basically no                     
  different in a substantive way than the original bill, and                   
  the sponsor believes a two-thirds vote to change court rules                 
  is not needed.                                                               
                                                                               
  Number 337                                                                   
                                                                               
  REP. NORDLUND referred to the section of HB 162 that asks                    
  the supreme court to expedite appeals, and noted it is not                   
  in the SS.  He added that the legislation is not dealing                     
  with court rule changes up-front.                                            
                                                                               
  Number 369                                                                   
                                                                               
  MR. LUCKHAUPT responded that it is up to the legislature to                  
  decide if they are making changes to court rules, and it                     
  must decide if they are making substantive or procedural                     
  changes.                                                                     
  Number 490                                                                   
                                                                               
  REP. NORDLUND said there seems to be a question of whether                   
  it is constitutional.                                                        
                                                                               
  Number 502                                                                   
                                                                               
  REP. PORTER asked Dean Guaneli from the Department of Law                    
  for his input.                                                               
                                                                               
  Number 510                                                                   
                                                                               
  DEAN GUANELI, Criminal Division, Department of Law, said he                  
  was available to answer questions, and the committee had                     
  heard from Mr. McNally in November when he explained the                     
  administration's position in great detail.                                   
                                                                               
  Number 525                                                                   
                                                                               
  REP. PHILLIPS asked for a summary of the governor's                          
  position.                                                                    
                                                                               
  Number 532                                                                   
                                                                               
  MR. GUANELI replied that rather than try to summarize a                      
  fairly lengthy presentation, he suggested that he would have                 
  the tape of the hearing transcribed and would make it                        
  available for the committee to take a look at.                               
                                                                               
  Number 539                                                                   
                                                                               
  REP. NORDLUND said he couldn't remember all of Mr. McNally's                 
  testimony, but he thinks he mentioned prosecution needing                    
  another tool for law enforcement.  Rep. Nordlund pointed out                 
  that the problem with the death penalty is that it is                        
  inequitable, especially for the poor.                                        
                                                                               
  Number 576                                                                   
                                                                               
  REP. DAVIDSON asked Mr. Guaneli if this issue would be a                     
  monetary-based system, and were there assurances that all                    
  people charged with the death penalty would be given access                  
  to good counsel.                                                             
                                                                               
  Number 590                                                                   
                                                                               
  REP. PORTER said it is his understanding that in federal                     
  death penalty cases, regardless of income, the defendant is                  
  given two attorneys.  He asked if there was anything in HB
  162 similar to federal practice, and asked Mr. Guaneli if he                 
  believes that would be the process in Alaska.                                
                                                                               
  Number 598                                                                   
                                                                               
  MR. GUANELI responded that there is nothing in the bill that                 
  directs that practice; however, something along those lines                  
  would be a likely result in rules provided by the supreme                    
  court.  He directed the question to John Salemi from the                     
  public defender's office.                                                    
                                                                               
  Number 621                                                                   
                                                                               
  REP. BETTYE DAVIS testified against HB 162, expressing                       
  concern about fairness, racism, cost, and possible mistakes                  
  being made.  She urged the committee to study the impact of                  
  the death penalty on minorities.  Rep. Davis concluded that                  
  it would be a grave mistake to enact a death penalty.                        
                                                                               
  Number 818                                                                   
                                                                               
  REP. NORDLUND cited statistics showing that the death                        
  penalty is a racially biased system.                                         
                                                                               
  Number 841                                                                   
                                                                               
  REP. DAVIS also cited various statistics pertaining to the                   
  percentage of minorities in jail, versus white prisoners.                    
                                                                               
  Number 850                                                                   
                                                                               
  The committee and Rep. Davis discussed various statistical                   
  information pertaining to the death penalty.                                 
                                                                               
  TAPE 94-10, SIDE A                                                           
  Number 035                                                                   
                                                                               
  BISHOP MICHAEL KENNY testified against HB 162, and focused                   
  on the practical issues, such as the effect on society in                    
  general.  Bishop Kenny said we need to look at better ways                   
  to ensure public safety.  He opposed the death penalty                       
  because it is the ultimate form of violence done by the                      
  state; it panders to baser instincts in each of us, and it                   
  serves to further alienate and isolate those individuals on                  
  the fringes of our society.  He concluded, saying that the                   
  death penalty creates a false sense of security in society.                  
                                                                               
  Number 169                                                                   
                                                                               
  REP. PORTER asked for testimony from John Creighton in                       
  Bethel and was informed he had left a written statement for                  
  the record.                                                                  
                                                                               
  Number 202                                                                   
                                                                               
  TERRY BURRELL of Anchorage testified in support of HB 162.                   
                                                                               
  Number 320                                                                   
                                                                               
  MIKE WALLERI, Chief Counsel for the Tanana Chief's                           
  Conference, testified against HB 162 and said a                              
  disproportionate number of those killed under the death                      
  penalty would be Natives and other minorities.  He cited                     
  cultural factors that impact Natives, including that Natives                 
  are more willing to confess to crimes.  Mr. Walleri urged                    
  the committee to hold a hearing on the racial impact of the                  
  death penalty.                                                               
                                                                               
  Number 476                                                                   
                                                                               
  JANICE PRESTON of Homer testified in favor of HB 162 and                     
  said that we need more police protection and speedier                        
  adjudications of criminal cases.                                             
                                                                               
  Number 662                                                                   
                                                                               
  CHARLES CAMPBELL, former Director of the Department of                       
  Corrections, testified against HB 162, saying it is a                        
  futile, senseless practice that has no deterrent value, and                  
  is extremely costly.                                                         
                                                                               
  Number 665                                                                   
  MARY S. SOLTIS of Sitka testified against HB 162 and said                    
  the focus should be on life imprisonment without parole.                     
                                                                               
  Number 711                                                                   
                                                                               
  RICH CURTNER, an attorney from Anchorage, testified against                  
  HB 162.  He cited his experience in death penalty cases                      
  while he was practicing law in Ohio, and cited the cost and                  
  emotional toll as reasons to oppose the death penalty.                       
                                                                               
  Number 796                                                                   
                                                                               
  REP. PORTER concluded the hearing on HB 162 and stated his                   
  intention to continue hearing the bill at the next meeting.                  
  ADJOURNMENT                                                                  
                                                                               
  CHAIRMAN PORTER ADJOURNED the meeting at 4:55 p.m.                           

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