Legislature(1993 - 1994)
01/31/1994 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE January 31, 1994 1:15 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice-Chair Rep. Pete Kott Rep. Gail Phillips (arrived at 1:35 p.m.) Rep. Joe Green Rep. Cliff Davidson Rep. Jim Nordlund MEMBERS ABSENT None COMMITTEE CALENDAR 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." FAILED TO MOVE OUT OF COMMITTEE BY A VOTE OF 4-3 HB 49: "An Act relating to facsimile absentee ballot application and facsimile absentee voting." CSHB 49(JUD) PASSED OUT OF COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS AND A FISCAL NOTE HB 315: "An Act relating to the unauthorized use of or unauthorized interference with transmission and delivery of subscription cable services; and amending the definition of the offense of theft of services and the penalties for its violation." CSHB 315(JUD) PASSED OUT OF COMMITTEE WITH NO OBJECTIONS *HB 313: "An Act relating to suspended imposition of criminal sentences and to the period in which suspension of the imposition of sentence for conviction of the crime of disorderly conduct may be authorized." CSHB 313(JUD) PASSED OUT OF COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS WITNESS REGISTER REP. JERRY SANDERS Alaska State Legislature Capitol, Room 13 Juneau, Alaska 99801-1182 Phone: 465-4945 POSITION STATEMENT: Prime Sponsor of HB 162. JERRY LAUKPAUT Legal Services Legislative Affairs Agency 130 Seward Street Juneau, Alaska 99801 Phone: 465-2450 POSITION STATEMENT: Drafter of HB 162 and Rep. Nordlund's amendment. TOM ANDERSON Legislative Aide Rep. Terry Martin Alaska State Legislature Capital Building, Room 411 Phone: 465-3783 POSITION STATEMENT: Testified on behalf of Rep. Martin, Prime Sponsor of HB 49. JOHN GAGUINE Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811 Phone: 465-2127 POSITION STATEMENT: Available to answer questions on HB 49. ERIC MUSSER Legislative Aide Rep. Brian Porter Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99811 Phone: 465-4930 POSITION STATEMENT: Testified on behalf of Rep. Porter, Prime Sponsor of HB 315. REP. PETE KOTT Alaska State Legislature Capitol Building, Room 409 Juneau, Alaska 99811 Phone: 465-3743 POSITION STATEMENT: Prime Sponsor of HB 313. MARGO KNUTH Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811 Phone: 465-3428 POSITION STATEMENT: Answered questions regarding HB 315. PREVIOUS ACTION 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 01/26/94 (H) MINUTE(JUD) 01/28/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: HB 49 SHORT TITLE: ABSENTEE BALLOTING BY FAX BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) MARTIN,Brice JRN-DATE JRN-PG ACTION 01/13/93 52 (H) READ THE FIRST TIME/REFERRAL(S) 01/13/93 53 (H) STATE AFFAIRS,JUDICIARY,FINANCE 01/20/93 117 (H) COSPONSOR(S): BRICE 01/28/93 (H) STA AT 08:00 AM CAPITOL 102 01/28/93 (H) MINUTE(STA) 01/30/93 (H) STA AT 08:00 AM CAPITOL 102 01/30/93 (H) MINUTE(STA) 02/09/93 (H) STA AT 08:00 AM CAPITOL 102 02/11/93 (H) STA AT 08:00 AM CAPITOL 102 02/11/93 (H) MINUTE(STA) 02/13/93 (H) STA AT 08:00 AM CAPITOL 102 02/18/93 (H) STA AT 08:00 AM CAPITOL 102 02/18/93 (H) MINUTE(STA) 03/02/93 (H) STA AT 08:00 AM CAPITOL 102 03/02/93 (H) MINUTE(STA) 03/04/93 (H) STA AT 08:00 AM CAPITOL 102 03/04/93 (H) MINUTE(STA) 03/05/93 541 (H) STA RPT CS(STA) NEW TITLE 1DP 1DNP 5NR 03/05/93 541 (H) DP: VEZEY 03/05/93 541 (H) DNP: ULMER 03/05/93 541 (H) NR: B.DAVIS,OLBERG, G.DAVIS, SANDERS,KOTT 03/05/93 541 (H) -FISCAL NOTE (GOV) 3/5/93 04/21/93 (H) JUD AT 01:00 PM CAPITOL 120 01/19/94 (H) JUD AT 01:15 PM CAPITOL 120 01/19/94 (H) MINUTE(JUD) 01/21/94 (H) MINUTE(JUD) 01/31/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: HB 315 SHORT TITLE: THEFT OF SUBSCRIPTION TV SERVICES SPONSOR(S): REPRESENTATIVE(S) PORTER,Green,Toohey JRN-DATE JRN-PG ACTION 01/03/94 2009 (H) PREFILE RELEASED 01/10/94 2009 (H) READ THE FIRST TIME/REFERRAL(S) 01/10/94 2009 (H) JUDICIARY, FINANCE 01/24/94 2139 (H) COSPONSOR(S): GREEN, TOOHEY 01/24/94 (H) JUD AT 01:15 PM CAPITOL 120 01/24/94 (H) MINUTE(JUD) 01/31/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: HB 313 SHORT TITLE: SUSPENDED SENTENCES:DISORDERLY CONDUCT SPONSOR(S): REPRESENTATIVE(S) KOTT JRN-DATE JRN-PG ACTION 01/03/94 2009 (H) PREFILE RLEASED 01/10/94 2009 (H) READ THE FIRST TIME/REFERRAL(S) 01/10/94 2009 (H) JUDICIARY, FINANCE 01/31/94 (H) JUD AT 01:15 PM CAPITOL 120 ACTION NARRATIVE TAPE 94-13, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:30 p.m. on January 31, 1994. A quorum was present. Chairman Porter announced that the first order of business was HB 162, and that the prime sponsor, Rep. Jerry Sanders, was on teleconference from Anchorage. HB 162 - CAPITAL PUNISHMENT FOR MURDER Number 025 REP. PORTER said that the public hearing on HB 162 had been concluded after a hearing in Anchorage during the interim and two teleconferences in Juneau, and requested amendments. Number 046 REP. NORDLUND said he had an amendment that would basically strip the entire bill and substitute life without parole in lieu of the death penalty, and moved the amendment. Number 090 REP. KOTT objected for the purpose of discussion. Number 114 JERRY LAUKPAUT, Legal Services, Legislative Affairs Agency, drafter of HB 162, the Sponsor Substitute, and the Nordlund amendment (E3), explained the amendment to the committee. Mr. Laukpaut explained that Rep. Nordlund had him take the basic aggravating factors in the bill and change the penalty from death to life without possibility of parole. Number 183 The committee discussed the amendment, including the possibility of furlough, good time, escape, threat to correctional officials, and whether it was constitutional. The committee also discussed if there would be a need for additional facilities to house life-time offenders. Number 741 REP. PORTER called for a roll call vote on the amendment: Rep. Kott no Rep. Nordlund yes Rep. Phillips no Rep. Davidson yes Rep. Green yes Rep. James no Rep. Porter no THE MOTION TO AMEND FAILED. Number 750 REP. PORTER said the committee had in front of it HB 162 as originally presented. He reminded the committee of the concern of Jack Chenoweth of the Attorney General's Office, which is the crime of first degree murder, with a range of sentence from 20 years to 99 years. Rep. Porter indicated there is a concern that this range would give rise to an equal protection constitutional challenge, and there is no doubt that should HB 162 become law, everything in it would be challenged in some form, but this is something the committee might want to consider. Number 766 REP. JAMES indicated she would feel a lot more comfortable with HB 162 if the committee had an overall view of the bill, and even though she supports in concept capital punishment, she would like to also have the possibility of mandatory incarceration without parole. Rep. James suggested a working group to look at the whole range of sentencing options and come up with something for the committee to look at. Number 782 REP. PORTER said that if there were, for example, 100 challenges to this bill, he was sure that 99 of them would meet the challenge, albeit years from now after hundreds of thousands of dollars have been spent, but they would meet the challenge, from his understanding of the U.S. Supreme Court's position on capital punishment and the cases they have decided and guidelines they have written. He added that he thought HB 162 meets all the requirements with the one exception of possibility of sentencing disparity, and he thought it was worth thinking about. Number 796 REP. PHILLIPS told the committee she had a lot of thoughts on this bill and was not anywhere near ready to pass the bill out. She said she thought the testimony was stacked with attorneys and did not reflect current public opinion favoring the death penalty. Number 808 REP. PORTER responded that the committee had three public hearings, one in Anchorage with the Joint Judiciary Committees, and to his knowledge the companion bill was not moving in the Senate, so this was just the first of potentially three or four committee hearings on the legislation. Rep. Porter said he was being told by those who favor it to move it out of committee, and he was being told by those who don't want it to sit on it. He added that he didn't particularly want it, but he didn't particularly want to sit on it either. Number 820 REP. PHILLIPS reiterated that she felt very uncomfortable that the committee hadn't done its work on the legislation, and that the committee hadn't taken enough public testimony. Rep. Phillips added that she felt the testimony had been totally slanted, and that she knows there's another side out there. Number 830 The committee discussed Rep. Phillips' concerns, with a number of members indicating they shared her concerns. TAPE 94-13, SIDE B Number 012 REP. PORTER said it was his intention to vote HB 162 up or down. Number 018 REP. JAMES supported Rep. Porter's intention to vote to move the bill out of committee, and suggested it would probably die in House Finance because of the cost, and that it was time to let another committee deal with it. Number 020 REP. PORTER asked if the committee's comments about not hearing enough public testimony was an indication that members didn't believe that public support for HB 162 was as vehement as thought. Discussion on Rep. Porter's comments and Rep. Phillips' concerns ensued. Number 091 REP. PORTER told the committee he felt holding chairmanship of the Judiciary Committee had two roles: one, the general public policy, "represent my district" kind of role that each legislator shares; and second, he would not let the committee pass a bill that he had any concern about being constitutionally flawed. Rep. Porter said that is the committee's professional requirement, and added that his vote to move HB 162 out of committee was going to be a reflection of the professional requirement of this committee, making it a lawful piece of legislature should it pass. He added, however, that he did not support the bill and would not vote for it if it came to the floor of the House, but if a piece of legislation came across reflecting Rep. Nordlund's amendment, he would probably support it. Number 130 REP. KOTT pointed out that this latest round of testimony dealt with a different bill in that the committee was no longer dealing with court rules, so it could pass with a simple majority. He said the committee should have perhaps dug into that a little deeper, but if Rep. Porter was satisfied with the constitutionality of the bill, then he would go along with the recommendation to move HB 162 out, and would in fact support HB 162, having had a mandate of almost 82 percent of his constituents supporting it. Number 161 REP. NORDLUND offered another amendment stripping Section 13 out of the bill, which was the section pertaining to putting the issue on the ballot for a public vote. He moved Amendment No. 2. Number 188 Discussion ensued on Amendment No. 2. Number 256 REP. PORTER called for a vote on Amendment No. 2: Rep. Phillips yes Rep. Davidson yes Rep. Green yes Rep. Kott no Rep. Nordlund yes Rep. James no Rep. Porter yes AMENDMENT NO. 2 PASSED AND HB 162 WAS BEFORE THE COMMITTEE. Number 264 A discussion on HB 162 ensued. Number 633 REP. JAMES MADE A MOTION TO MOVE HB 162 OUT OF COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS. REP. PORTER called for a roll call vote: Rep. Davidson no Rep. Green no Rep. Kott yes Rep. Nordlund no Rep. Phillips no Rep. James yes Rep. Phillips yes. THE MOTION TO MOVE HB 162 OUT OF COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS FAILED. Number 651 REP. PORTER said the next order of business was HB 49. CSHB 49(JUD) - "An Act relating to absentee voting, to electronic transmission of absentee ballot applications, and to delivery of ballots to absentee ballot applicants by electronic transmission." Number 660 TOM ANDERSON, Legislative Aide to Rep. Terry Martin, Prime Sponsor of HB 49, testified that he followed up on the question relating to postmarks and also of how HB 49 would affect municipal clerks. Mr. Anderson said Rep. Martin had no problem with changing the wording of the bill to say that an application requesting delivery of an absentee ballot to the applicant must be addressed to the Division of Elections and received in not less than seven days. On the second question, Mr. Anderson referred to a letter from Patty Ann Polly, the Juneau City Clerk, and asked the committee to note that HB 49 only addressed Section 15 of the Statutes, not Section 29, which had to do with municipal elections, so it wouldn't really affect city elections. Number 703 JOHN GAGUINE, Governmental Affairs Section, Attorney General's Office, testified that they saw no problem with secrecy and the right to privacy. Mr. Gaguine said he was confident that the Division of Elections could come up with procedures to deal with the issue of secrecy. He added that the state was not forcing anyone to vote this way; it was a matter of choice. REP. PORTER asked Mr. Gaguine if he was saying you can waive the right to secrecy. Number 733 MR. GAGUINE said no, you cannot waive your right to secrecy. Number 738 REP. PORTER commented that the Division of Elections could not guarantee secrecy. Number 743 MR. GAGUINE concurred. Number 764 REP. PORTER said he would entertain a motion to amend page 3, line 19, change the first two words "and postmarked" to "and received." AMENDMENT NO. 1 WAS MOVED WITHOUT OBJECTION. Number 770 REP. GREEN moved the amended bill out of committee with individual recommendations, with a fiscal note. HEARING NO OBJECTIONS, CSHB 49(JUD) WAS MOVED OUT OF COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS AND A FISCAL NOTE. HB 315 - THEFT OF SUBSCRIPTION TV SERVICES Number 790 REP. PORTER brought the next bill before the committee, HB 315. ERIC MUSSER, Legislative Aide to Rep. Brian Porter, described a draft committee substitute, which simply makes more clear the intent of the legislation. He said during the previous hearing two questions were raised, and on page 3, line 13, of the original bill the question came up to just what "inductively" meant. Mr. Musser also said a question came up as to whether there was a redundancy between the language on page 3, line 13 and line 19. MR. MUSSER said the committee substitute restructures the language to eliminate any redundancy, and included a definition of an unauthorized device. Number 840 REP. PHILLIPS MOVED the JUDICIARY SUBSTITUTE for HB 315. Hearing no objection, it was so moved. CSHB 315(JUD) MOVED OUT OF COMMITTEE. TAPE 94-14, SIDE A Number 000 CSHB 313(JUD) - "An Act relating to suspended imposition of criminal sentences and to the imposition of sentence when a suspended imposition of sentence is revoked." REP. PORTER said the next order of business was HB 313. Number 010 REP. PETE KOTT, Prime Sponsor of HB 313, presented the committee with a committee substitute and testified that the legislation's original intent extended to judges the opportunity to impose the suspended imposition of sentencing to 90 days, but as it currently stands, you can only suspend imposition of sentence up to the amount of time a person would actually be serving. The Committee Substitute (CS) allows for probation to go up to one year. Number 127 REP. PORTER said he intends to support the bill because it provides some options not currently available to the system, and the only correction he would make is changing 5th degree to 3rd degree on weapons misconduct. Number 130 MARGO KNUTH, Criminal Division, Department of Law, explained to the committee that there is now a 5th degree weapons offense and it is a misdemeanor offence and it starts off with higher offenses than the state used to have. Number 160 REP. NORDLUND asked if HB 315 would allow for an SIS to go beyond what an original sentence was. Number 173 REP. KOTT replied yes; under a Class B misdemeanor an individual would get 90 days in jail, so this allows a judge to extend that period of probation up to one year, and it is up to judicial discretion. Number 192 REP. PORTER said it has been pointed out that Anchorage and other urban communities that have problems with criminal behavior is really a result of an inebriate problem, and this would allow a court to sentence an SIS for a lengthy period of treatment as opposed to just disorderly conduct, which often is a drinking problem. Number 199 REP. GREEN asked if the additional extension of probation (inaudible). Number 192 REP. PORTER replied that the judge will issue a suspended imposition of sentence for a certain length of time, and HB 313 allows that time to go up in the judge's opinion if there is a reason for it. Number 252 MS. KNUTH said because it will be applied to new offenses that are committed as long as it is a reasonable time period, and the legislature can set whatever time period it wants, and what is happening is the original sentencing is still there, but it stays at risk for a longer time period. MS. KNUTH continued, saying judges have asked for this amendment because right now they are not granting SIS's for these minor offenses because they don't feel they can trust a person to know if it's taken in 10 or 90 days, so they will impose the sentence which gives them a much longer time period and in effect they feel that they have been harsher than they should be. She said judges would like to be able to grant an SIS, which is a liberal and useful thing to do, but only if there is enough security build into it. Number 324 REP. PHILLIPS MOVED CSHB 313(JUD). Hearing no objection, it was so moved. CSHB 313(JUD) WAS MOVED OUT OF COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS. ADJOURNMENT Chairman Porter adjourned the meeting at 3:30 p.m.