Legislature(1993 - 1994)
04/18/1994 01:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 18, 1994 1:00 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice-Chair Rep. Gail Phillips Rep. Pete Kott Rep. Joe Green Rep. Cliff Davidson MEMBERS ABSENT Rep. Jim Nordlund COMMITTEE CALENDAR SB 221: "An Act relating to arrest of a person for illegal possession, consumption or control of alcohol; and providing for an effective date." MOVED OUT OF COMMITTEE HB 523: "An Act amending Alaska Rule of Criminal Procedure 6(r) relating to admissibility of hearsay evidence by peace officers before the grand jury." MOVED OUT OF COMMITTEE SB 286: "An Act relating to special conditions of mandatory parole; relating to conditions of mandatory or discretionary parole; extending the termination date of the Board of Parole; and providing for an effective date." MOVED OUT OF COMMITTEE SB 321: "An Act relating to the taking of a legible set of fingerprints when a person is arrested, upon initial appearance or arraignment, upon the conviction of the person, and when the person is received at a correctional facility, and providing that the set of fingerprints shall be provided to the Department of Public Safety; relating to criminal and crime records and information; requiring the reporting of information concerning homicides and suspected homicides to the Department of Public Safety for analysis; requiring the Department of Public Safety to participate in the Federal Bureau of Investigation, Violent Criminals Apprehension Program." MOVED OUT OF COMMITTEE SB 24: "An Act extending the maximum period of probation after conviction." MOVED OUT OF COMMITTEE SB 220: "An Act amending schedule IA of the schedules of controlled substances applicable to offenses relating to controlled substances to add the drug methcathinone, commonly identified as `cat.'" MOVED OUT OF COMMITTEE SB 322: "An Act repealing the requirement that an oil or gas lease sale be held during the calendar quarter for which scheduled under the leasing program and repealing related allowable delays for certain oil and gas lease sales under the Alaska Land Act; and providing for an effective date." MOVED OUT OF COMMITTEE SB 316: "An Act relating to commercial fishing penalties." HEARD AND HELD SJR 39: Proposing an amendment to the Constitution of the State of Alaska to guarantee, in addition to the right of the people to keep and bear arms as approved by the voters at the time of ratification of the state Constitution, that the individual right to keep and bear arms shall not be denied or infringed by the state or a political subdivision of the state. MOVED OUT OF COMMITTEE WITNESS REGISTER JOE AMBROSE Chief of Staff Senator Robin Taylor's Office Alaska State Legislature State Capitol, Room 30 Juneau, AK 99801-1182 465-3873 Position Statement: Testified on CSSB 286 MICHAEL J. STARK Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811 465-3428 Position Statement: Testified on SB 286 and HB 523 RICH COLLUM Parole Board P.O. Box 112000 Juneau, AK 99811 789-9786 h./465-3384 w. Position Statement: Testified on SB 221 DANIELLA LOPER Committee Aid House Judiciary Committee Alaska State Legislature State Capitol, Room 118 Juneau, AK 99801-1182 465-6841 Position Statement: Gave bill schedule update PREVIOUS ACTION BILL: SB 221 SHORT TITLE: ARREST OF MINORS FOR CONSUMING ALCOHOL SPONSOR(S): SENATOR(S)TAYLOR,Duncan,Miller,Pearce,Kelly, Leman,Little,Frank,Donley,Sharp,Halford,Zharoff; REPRESENTATIVE(S) Ulmer JRN-DATE JRN-PG ACTION 01/03/94 2451 (S) PREFILE RELEASED 1/3/94 01/10/94 2451 (S) READ THE FIRST TIME/REFERRAL(S) 01/10/94 2451 (S) HES, JUD 01/19/94 (S) HES AT 01:30 PM BUTROVICH ROOM 205 01/19/94 (S) MINUTE(HES) 01/24/94 (S) HES AT 01:30 PM BUTROVICH ROOM 205 01/24/94 (S) MINUTE(HES) 01/26/94 2597 (S) HES RPT 4DP 2NR 01/26/94 2597 (S) ZERO FNS PUBLISHED (LAW, DPS, ADM-2) 01/31/94 (S) JUD AT 01:30 PM BELTZ RM 211 02/07/94 (S) JUD AT 01:30 PM BELTZ RM 211 02/07/94 (S) MINUTE(JUD) 02/09/94 2750 (S) JUD RPT 2DP 3NR 02/09/94 2750 (S) ZERO FNS PUBLISHED (COURT, DHSS) 02/09/94 2750 (S) PREVIOUS ZERO FNS (ADM-2,DPS, LAW) 02/09/94 (S) RLS AT 01:00 PM FAHRENKAMP ROOM 203 02/09/94 (S) MINUTE(RLS) 02/11/94 2786 (S) 3 RLS TO CALENDAR 1 NR 2/11/94 02/11/94 2798 (S) READ THE SECOND TIME 02/11/94 2798 (S) ADVANCED TO THIRD READING UNAN CONSENT 02/11/94 2798 (S) READ THE THIRD TIME SB 221 02/11/94 2798 (S) COSPONSOR(S): DUNCAN, MILLER, 02/11/94 2798 (S) PEARCE, KELLY, LEMAN, LITTLE, FRANK, 02/11/94 2798 (S) DONLEY,SHARP,HALFORD,ZHAROFF 02/11/94 2799 (S) PASSED Y19 N- E1 02/11/94 2799 (S) EFFECTIVE DATE SAME AS PASSAGE 02/11/94 2807 (S) TRANSMITTED TO (H) 02/14/94 2367 (H) READ THE FIRST TIME/REFERRAL(S) 02/14/94 2367 (H) HES, JUDICIARY 02/14/94 2389 (H) CROSS SPONSOR(S): ULMER 03/28/94 (H) HES AT 03:00 PM CAPITOL 106 03/28/94 (H) MINUTE(HES) 03/29/94 3045 (H) HES RPT 3DP 3NR 3AM 03/29/94 3045 (H) DP: BUNDE, TOOHEY, OLBERG 03/29/94 3045 (H) NR: G.DAVIS,NICHOLIA,BRICE 03/29/94 3045 (H) AM: KOTT, VEZEY, B.DAVIS 03/29/94 3046 (H) -2 PREVIOUS SEN ZERO FNS (DPS,LAW) 1/26 03/29/94 3046 (H) -2 PREVIOUS SEN ZERO FNS (COURT,DHSS)2/9 03/29/94 3046 (H) -2 PREVIOUS SEN ZERO FNS (ADM) 1/26 04/18/94 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 523 SHORT TITLE: GRAND JURY EVIDENCE BY POLICE OFFICERS SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR JRN-DATE JRN-PG ACTION 03/09/94 2683 (H) READ THE FIRST TIME/REFERRAL(S) 03/09/94 2683 (H) STATE AFFAIRS, JUDICIARY 03/09/94 2684 (H) -4 ZERO FISCAL NOTES (2-ADM,DPS,LAW) 3/9 03/09/94 2684 (H) GOVERNOR'S TRANSMITTAL LETTER 03/26/94 (H) STA AT 08:00 AM CAPITOL 102 03/26/94 (H) MINUTE(STA) 03/29/94 3044 (H) STA RPT 4DP 03/29/94 3044 (H) DP: VEZEY, KOTT, G.DAVIS, B.DAVIS 03/29/94 3044 (H) -4 PREVIOUS ZERO FNS (LAW,DPS,2-ADM) 3/9 04/18/94 (H) JUD AT 01:00 PM CAPITOL 120 BILL: SB 286 SHORT TITLE: CONDITIONS OF PAROLE; EXTEND BD OF PAROLE SPONSOR(S): LABOR & COMMERCE JRN-DATE JRN-PG ACTION 02/09/94 2753 (S) READ THE FIRST TIME/REFERRAL(S) 02/09/94 2754 (S) L&C, JUD 02/15/94 (S) L&C AT 01:30 PM FAHRENKAMP ROOM 203 02/15/94 (S) MINUTE(L&C) 02/18/94 2886 (S) L&C RPT 2DP 2NR 02/18/94 2886 (S) ZERO FISCAL NOTE PUBLISHED (CORR) 03/02/94 (S) JUD AT 01:30 PM BELTZ ROOM 03/02/94 (S) MINUTE(JUD) 03/10/94 3146 (S) JUD RPT CS 3DP NEW TITLE 03/10/94 3147 (S) PREVIOUS ZERO FN APPLIES (CORR) 03/10/94 (S) RLS AT 00:00 AM FAHRENKAMP ROOM 203 03/10/94 (S) MINUTE(RLS) 03/18/94 (S) RLS AT 00:00 AM FAHRENKAMP ROOM 203 03/18/94 (S) MINUTE(RLS) 03/25/94 3372 (S) RULES RPT CS & CAL 2DP 1NR NEW TITLE 03/28/94 3373 (S) PREVIOUS ZERO FN APPLIES (CORR) 03/28/94 3374 (S) READ THE SECOND TIME 03/28/94 3374 (S) RLS CS ADOPTED UNAN CONSENT 03/28/94 3374 (S) ADVANCED TO THIRD READING UNAN CONSENT 03/28/94 3374 (S) READ THE THIRD TIME CSSB 286(RLS) 03/28/94 3375 (S) PASSED Y13 N6 E1 03/28/94 3375 (S) EFFECTIVE DATE PASSED Y19 N- E1 03/28/94 3375 (S) Adams NOTICE OF RECONSID 03/30/94 3413 (S) RECON TAKEN UP - IN THIRD READING 03/30/94 3414 (S) RETURN TO SECOND FOR AM 1 UNAN CONSENT 03/30/94 3414 (S) AM NO 1 MOVED BY LINCOLN 03/30/94 3414 (S) AM NO 1 ADOPTED Y15 N3 E2 03/30/94 3414 (S) AUTOMATICALLY IN THIRD READING 03/30/94 3415 (S) PASSED ON RECONSIDERATION Y18 N- E2 03/30/94 3415 (S) EFFECTIVE DATE SAME AS PASSAGE 03/30/94 3415 (S) TRANSMITTED TO (H) 03/31/94 3102 (H) READ THE FIRST TIME/REFERRAL(S) 03/31/94 3102 (H) JUDICIARY 04/18/94 (H) JUD AT 01:00 PM CAPITOL 120 BILL: SB 321 SHORT TITLE: FINGERPRINTING AND CRIME RECORDS SPONSOR(S): SENATOR(S) HALFORD,Phillips,Kerttula,Taylor, Pearce,Donley,Leman,Little,Miller,Sharp JRN-DATE JRN-PG ACTION 02/14/94 2832 (S) READ THE FIRST TIME/REFERRAL(S) 02/14/94 2832 (S) JUD, FIN 03/02/94 (S) JUD AT 01:30 PM BELTZ ROOM 03/02/94 (S) MINUTE(JUD) 03/07/94 3087 (S) JUD RPT CS 4DP NEW TITLE 03/07/94 3088 (S) ZERO FNS TO SB & CS PUBLISHED (DPS-2) 03/15/94 (S) FIN AT 08:30 AM SENATE FINANCE 03/15/94 (S) MINUTE(FIN) 03/16/94 3240 (S) FIN RPT CS 5DP 1NR NEW TITLE 03/16/94 3241 (S) PREVIOUS ZERO FNS APPLY (DPS-2) 03/16/94 (S) RLS AT 00:00 AM FAHRENKAMP ROOM 203 03/16/94 (S) MINUTE(RLS) 03/16/94 (S) FIN AT 09:00 AM SENATE FINANCE 03/21/94 3293 (S) ZERO FISCAL NOTE PUBLISHED (CORR) 03/22/94 3317 (S) RULES TO CALENDAR 4CAL 1NR 3/22/94 03/22/94 3319 (S) READ THE SECOND TIME 03/22/94 3320 (S) COSPONSOR(S): KERTTULA, TAYLOR, PEARCE, 03/22/94 3320 (S) DONLEY, LEMAN, LITTLE, MILLER, SHARP 03/22/94 3320 (S) FIN CS ADOPTED UNAN CONSENT 03/22/94 3320 (S) ADVANCED TO THIRD READING UNAN CONSENT 03/22/94 3320 (S) READ THE THIRD TIME CSSB 321(FIN) 03/22/94 3321 (S) PASSED Y20 N- 03/22/94 3324 (S) TRANSMITTED TO (H) 03/23/94 2924 (H) READ THE FIRST TIME/REFERRAL(S) 03/23/94 2924 (H) FINANCE 03/25/94 2980 (H) FIN REFERRAL WAIVED 03/25/94 2980 (H) JUD REFERRAL ADDED 03/28/94 (H) JUD AT 01:00 PM CAPITOL 120 04/08/94 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 94-61, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:20 p.m. on April 18, 1994. A quorum was present. CHAIRMAN PORTER announced that the committee would take up SB 221 first, followed by HB 523, SB 286, SB 321, SB 24, SB 220, SB 322, HB 316, and then HCSSJR 39. CHAIRMAN PORTER welcomed JOE AMBROSE from SENATOR TAYLOR's office to begin discussion of SB 221. SB 221 - ARREST OF MINORS FOR CONSUMING ALCOHOL Number 042 JOE AMBROSE, Chief of Staff to Senator Robin Taylor, described SB 221 and said Senator Taylor was the prime sponsor of the bill. The bill was introduced this bill at the request of concerned parents, law enforcement agencies in the first judicial district, and Alaskans for drug free youth. In May of last year state troopers and municipal police departments were directed not to arrest minors under the influence of alcohol (minor consuming statute) unless the arresting officer actually saw the minor consume the alcohol. The directive was issued after two judicial officers ruled that merely being under the influence in the officers' presence was not enough to make an arrest. The District Attorney's directive stated, "Officers who encounter minors under the influence should issue citations rather than make arrests." The court ruling left law enforcement officers in the position of either leaving such a minor on the street, or taking the minor into protective custody. Past practice had been to arrest the minor and turn the youth over to parents or legal guardians. He SB 221 would add minor consuming to the list of crimes that allow for warrantless arrests. While the court ruling currently impacts only the first judicial district, it could be extended to other jurisdictions. Senator Taylor's goal in sponsoring the bill was not to increase the number of arrests for minor consuming; but he does not believe the legislature ever intended for a police officer to simply write a ticket and walk away from a minor who is under the influence. The bill is more about protecting young people than prosecuting them. Number 090 REPRESENTATIVE GAIL PHILLIPS asked how in the world the district attorney could justify a ruling when there is already a law in the book that says it is illegal for someone under the age of 21 to consume alcohol. She expressed absolute amazement. Number 100 CHAIRMAN PORTER stated that the district attorney has to follow the policy of the court, and the court, whether you agree with it or not, is a distinctly different body of government, and they have the ability to make decisions based upon their interpretation of the law. Number 106 REP. PHILLIPS asked how they could refute an existing law that says it is illegal if you are under 21. Number 109 CHAIRMAN PORTER replied that he would not be the one to try to explain the logic of that court decision. That is why he would be in support of the bill. REP. PHILLIPS asked if the law applied to just the first judicial district or if it included everybody. CHAIRMAN PORTER answered that yes, it was intended to include everybody. He thought the first judicial district was the only district that had made this interpretation. He said the bill would not change the application of the law in any other jurisdiction he knew of, except the first, where it is needed. Number 123 MR. AMBROSE pointed out that the officers do have the option of protective custody, which is an expensive proposition at the local level, because you have to take them to a hospital, and then you've got to figure out what you are going to do with them next. Some communities do not have available facilities and the minors often end up riding around in a police car for the rest of the night, effectively taking that officer out of duty. Number 130 CHAIRMAN PORTER said the other option is a citation and release, in which case you have an intoxicated kid on the street, which does not do a lot of good. Number 137 REPRESENTATIVE JEANNETTE JAMES responded, stating that absolutely getting them off of the street is the thing to do, and she thinks we have jumped over the fence to being more concerned, now that we have had many of our teenagers killed in traffic accidents, and so forth. Previously, it was like, "Oh he was just a little kid that had a little flight that night. Let us just take him back to his parents, because then that way it could all be hush hushed, and so forth." That idea is gone forever because alcohol and drugs are the two biggest causes for all of our crime, and all of our accidents, all of the problems that we suffer in the state. Rep. James said she thought that the attitude seems to be switching, and hopefully the court will catch up. Number 163 MR. AMBROSE stated that the sad thing is, in Juneau, after this ruling, kids were actually taunting police officers on the street because they knew that the policemen could not do anything more than write them a ticket. Number 167 CHAIRMAN PORTER asked if there were any other questions to be asked of Mr. Ambrose. There were not, nor were there any more people wishing to give testimony on SB 221. Number 172 REP. JAMES moved to move the bill out with individual recommendations and the attached fiscal note. CHAIRMAN PORTER stated that, with no objection, SB 221 was moved. He then welcomed Michael Stark from the Department of Law, inviting him to testify on HB 523. HB 523 - GRAND JURY EVIDENCE BY POLICE OFFICERS Number 180 MIKE J. STARK, Assistant Attorney General, Criminal Division, Department of Law, testified on HB 523. He said this is not his normal area of expertise, but he was filling in for Dean Guaneli and Margot Knuth, who were both out of town. He summarized from a statement that Margot prepared, describing the bill. He said HB 523 amends criminal rule 6r to create a narrow exception to the rule that in a grand jury, one witness cannot testify about what another witness heard or said. This exception would allow one peace officer, such as an Alaska State Trooper or a police officer, to tell the grand jury what another peace officer heard, said, or did, in the course of a criminal investigation. It is a very narrow exception, because it applies only to peace officers who testify to what their fellow officers saw or heard; e.g., as to the contents of their fellow officers' police reports. Under this bill the grand jury would continue to retain the authority to request the other police officer to testify in person if there is some uncertainty about the facts in the minds of the grand jury. The existing rule is very expensive and does nothing to protect the constitutional rights of Alaskan citizens. All it does is pull dozens of police officers and troopers off of patrol every month to wait in the district attorney's office for their turn to testify about something that one officer could do just as well. He added that the rule this bill would amend, if amended, would be similar to the federal system, which does allow one police officer to testify as to what other police officers saw or heard. Mr. Stark stated he was available for any questions. Number 210 CHAIRMAN PORTER informed the committee that there was a time when a police officer could go to the grand jury and testify to everything, whether it was another police officer's observations, or a witness's observation -- anybody's hearsay. Those were more crooked days, but since then, we have gone the other way, and now we are trying to get back in the middle. Chairman Porter thought this was a pretty reasonable approach. Number 225 REP. JAMES moved to move out HB 523 with individual recommendations and the zero fiscal note. Number 230 CHAIRMAN PORTER called for a vote after REP. NORDLUND objected to the motion. A vote was taken and the bill was moved out with a 5 - 1 majority. Reps. Kott, Phillips, Green, Porter and James voted yes; Rep. Davidson voted no; and Rep. Nordlund was absent. CHAIRMAN PORTER then introduced RICH COLLUM from the Parole Board to explain SB 286, and also noted that MIKE STARK was present if it was necessary to ask questions of the Department of Law. Number 274 RICH COLLUM, Parole Board, said that it was not too long ago that he was before Chairman Porter testifying in favor of House Bill 418 to extend the Parole Board for four years. He said SB 286 began in the Senate with that same provision and had a couple of major sections added. Although the sections are fairly lengthy, what they do is simply take things that the board has done over the last 30 years, that are included in the AAC's (Alaska Administrative Code), and now includes them in statute. MR. COLLUM explained that the first major addition is the ability for a single board member to set conditions of parole on mandatory parolees. He said, if we were to have to use all five board members to set conditions on mandatory court parolees, we would have to ask for an increase in our budget and it would take a great deal of our time in order to do that. We have been using a single board member over the last thirty years. It has been in the Alaska Administrative Code and it has worked very well. He said the other section with major change is that it has taken the regular standard conditions that we have used again, probably over the last thirty years, and that are outlined in the Alaska Administrative Code, and moved them into the Alaska Statutes. Mr. Collum stated that he, or Mike Stark from the Department of Law, would be willing to answer legal questions about either of these section changes, and stated that the Parole Board certainly does support SB 286. CHAIRMAN PORTER asked Mr. Collum about the individual Parole Board members holding hearings and making determinations, and the previously mentioned administrative procedures act that, in effect, causes a member to become a hearing officer. Number 338 MR. STARK answered that they do not hold an in-person hearing when they are setting conditions on mandatory parolees, and explained that what they are trying to avoid is have an in-person hearing. The institutional parole officer sends in a packet of information to the office. One Board Member reviews that information, including the pre- sentence report, and then sets conditions. That is in the case of mandatory parolees. In the case of discretionary parolees, the in-person hearings, the five board members are present before anybody is released on discretionary parole, and all five board members set the conditions. REP. PHILLIPS asked if the mandatory parole method of handling these cases was pretty consistent with other states. MR. STARK guessed that it was consistent, but stated that he could not answer that authoritatively. He said most states that have any type of parole system have some type of mandatory parole where prisoners are supervised for the amount of good time they earn. In our state it is one- third; in some states it is a great deal more. Some have half, and some have even more than that. CHAIRMAN PORTER asked if there were any others wishing to testify on SB 286. MR. STARK explained what a mandatory parolee is: when a person is sentenced to incarceration for a crime, they are awarded good time, as long as they behave themselves while they are incarcerated. Those who do not get into any trouble, earn one-third off of their sentence, so they serve two- thirds and have one-third off. That one-third is then served on mandatory parole. They are released from custody, but they are supervised by a parole officer, and by the parole board who sets conditions for their behavior while they are under supervision. This is where we would like one board member to be allowed to set conditions of parole. If the parolee is unhappy with the conditions the board member sets, the parolee can always appeal to the whole board, and then the whole board would review the case and make a decision. He said he was talking about the initial setting of those conditions. The reason this is so important is when this statute was adopted in 1986, we were not aware that there was a little technical loophole in the statutes which requires all orders of the decisions by the board to be conducted by a quorum of the board. The board has always historically done this through one board member. The statutes do not seem to allow for that. There is now a number of law suits by parolees who got out on parole and then, for violating their conditions, are back in jail and are now saying, "Hold on, court, these conditions were not validly set, because only one board member was involved in the setting of these conditions." The bill will make this allowance retroactive back to the time the statute was first adopted so these law suits will go away, and these people will do their time like they are supposed to. REP. CLIFF DAVIDSON asked Mr. Stark how many of these lawsuits fall into this category. MR. STARK answered that there were about four or five of them pending, but he could say that from having represented the Department of Corrections, Parole Board for many years, there is a copy cat effect, and he expects to see many, many more cases just like this, unless this bill is adopted. REP. PHILLIPS asked Mr. Stark if we were likely to get into trouble with the ACLU (Alaska Civil Liberties Union) on the retroactive effective date. Number 380 MR. STARK answered that he did not think so, because we are not talking about the conditions themselves that were set, just how they were set. We are talking about one board member versus a quorum of the board, which would be three members. He felt sure that they would be challenged, as inmates love to litigate, but he did not think there was any constitutional problem with it. Number 385 CHAIRMAN PORTER asked if there were further questions. Number 388 REP. PETE KOTT asked about page 3, line 21, where it talks about what the circumstances might be prohibiting a prisoner released on parole from possessing a defensive weapon, or a deadly weapon, other than an ordinary pocket knife, with a blade three inches or less in length. He asked if this meant that a person would not be able to carry a hunting or fishing knife, and if we were restricting their movement in that area, or if there would be a provision for an allowance and an exception. Number 400 MR. AMBROSE answered that the conditions Rep. Kott was referring to on page 3 are those that are discretionary on the part of the board. He said they set those conditions on most people, but were particularly concerned to make sure that these were discretionary rather than mandatory, because so many people are involved in commercial fishing, and that sort of thing, possibly hunting. So, in the particular case of a fisherman, the parole officer tells the individual to keep knives, and dangerous weapons, so to speak, on the boat. The parolee cannot carry them off of the boat to carry, or take home when they are not in the process of working. That is why it is set out as a discretionary condition rather than a mandatory one. REP. JAMES said that he was thinking of the person who might just be setting out for the weekend on a hunting or fishing trip, from a private standpoint, not a commercial fisherman, but a sports fisherman. MR. AMBROSE answered that they would have to talk to their parole officer, but he did not believe the parolee would be given permission to have a knife. He thought the parole officer would probably argue that a knife within the regulations would be sufficient to clean the fish. Number 430 REP. JAMES said that she reread the language that says, "...may require the member of the Board, acting for the Board, may require as a condition of mandatory parole these things." It says that they may require that they not possess these things. It is really difficult when we visualize what we are doing on a specific bill, when we look at cases and peoples and places, and so forth, where there might be some rural resident, as an example, for whom hunting is a part of their lifestyle, and she said she would think that providing for the difference of the kind of case they had, and so forth, there might be an allowance where the person may be allowed to go hunting. MR. AMBROSE agreed with Rep. James, and said that there are cases where they would not give a parolee a knife, cases where they had been assaultive with a knife. Number 430 REP. JAMES demonstrated trust in the Parole Board members to make these discretionary conditions, so as not to set people up for defeat. She then motioned to move SB 286. Number 450 CHAIRMAN PORTER announced the bill was moved, after no further discussion was desired. CHAIRMAN PORTER then went on to take up the four bills that were heard previously, beginning with SB 321. He briefly explained that SB 321 had all of the fingerprint provisions of the bill previously passed out of the Judiciary Committee. The bill also adopts the VICAP (Violent Crimes Apprehension Program), allowing the Department of Public Safety to view open homicide cases within the state, and to participate in the national program to see if our cases have any tie-in with any existing outside cases, which would indicate a serial killer. It would be very helpful just to be in the program. REP. PHILLIPS motioned to move the bill with individual recommendations and zero fiscal notes. Number 497 CHAIRMAN PORTER moved SB 321 with no objection. SB 24 - Extend Maximum Period of Probation CHAIRMAN PORTER said that he, REP. JAMES and REP. PHILLIPS heard SB 24 already. He explained that the bill asks that the allowable time for probation be extended from five years to ten years. He asked if there was any discussion among the committee members who did not hear the bill previously. Number 510 REP. PHILLIPS wanted to note for the record that this change was recommended by the Sentencing Commission, and that there was no negative testimony when the bill was previously heard. Number 520 REP. JAMES moved to move SB 24 out with zero fiscal notes and individual recommendations. REP. CLIFF DAVIDSON asked how they could explain a zero fiscal note while engaging the resources of the state for another five years. Number 540 CHAIRMAN PORTER explained that this question had come up in the previous hearing, and noted the extension would not take effect for five years. So for the next five years, as called for on the regular fiscal note, there is no fiscal impact. What is hoped for, and he saw no reason why this hope should not come into play, but the balancing off of the courts having a little more discretion in how long to lay in probation for, might actually decrease the amount of time given in the first place, so the amount of probation occurring from five to ten years would hopefully be more than offset by reduced sentencing in the first place. Having the ability to place someone on probation for a longer period of time might somewhat reduce the amount of sentencing they received in the first place. It costs less to keep a person on probation than to reincarcerate them again. He then asked if there was further discussion on SB 24. Number 560 REP. PHILLIPS made motion to move SB 24 with individual recommendations and zero fiscal notes. The bill was moved. SB 220 - ADD "CAT" TO SCHEDULE IA DRUG LIST Number 565 CHAIRMAN PORTER introduced SB 220, explaining that the bill would add a synthetic drug, presently being abused, to our list of schedule 1A, controlled substances. He asked if there was any discussion on this bill. He noted that our label says "2A" but it is supposed to read "1A." REP. JAMES made the same statement that she had made on Saturday regarding this bill. She wished there was some language put into the statutes making all such drugs illegal when they are dreamed up, instead of the legislature having to come back and put each one on the list individually. She thought they should still be looking for some wording as to the purpose or affects of the drug or something. It seems that as soon as a drug is added to the list, somebody comes up with a new drug, and she would like to see that stop. Number 590 CHAIRMAN PORTER could not disagree with that, and thought there was a law passed stating that if the federal drug list was updated, that ours was automatically updated. He said, while we do not have the lag time we used to have, we still have a little bit of lag time in these kinds of drugs getting up here to Alaska. Number 600 REP. PHILLIPS said that in looking through the bill pack, it appeared that the bill [drug] did make it's debut in Hawaii in 1989 and has been moving around the country since that time. She said this is a preventative measure bill. She asked if we have had instances of law enforcement officers actually finding it ["cat"] being utilized in Alaska. CHAIRMAN PORTER said he believed the testimony to have been that we have not had any known use of this substance in Alaska. It does not mean that it is not here, we just have not heard about it yet. So we may actually be taking a preemptory strike here, rather than a reactive strike. Number 620 REP. GREEN asked if we are presently checking for methcathinone on arrests on people who are acting weird. He asked if there is equipment to check for this, seeing a zero fiscal note. He thought there must be some sort of test they do. Number 625 CHAIRMAN PORTER said they probably would not be testing for consumption, they would be testing the item itself if it were found on the person. The Alaska Forensics Lab has the ability to test for any chemical. Number 627 REP. PHILLIPS pointed out that the second page of the fiscal note from the Department of Law addresses that they do not expect a significant new case load upon the approval of this bill. Although an additional case load is not expected, including the "cat" schedule is important because of danger to users in the public. Number 637 CHAIRMAN PORTER noted that, remarkably, there are many people who are very knowledgeable about what is and what is not against the law in that area, and are guided thereby. Number 640 REP. JAMES made amotion to move SB 220 with individual recommendations and a zero fiscal note. The bill was moved. SB 322 - DELAYS OF OIL AND GAS LEASE SALES Number 650 CHAIRMAN PORTER reminded the committee that this was the elimination of the 90 day rule for the lease sale. He asked if the committee members had any questions about this bill. Number 655 REP. GREEN recommended moving SB 322 out of the committee with individual recommendations and zero fiscal notes. Number 662 REP. PHILLIPS asked what the companion bill number to SB 322 was. Nobody knew for certain right off. Number 670 The bill was moved. SB 316 - FISHING VIOLATIONS Number 675 CHAIRMAN PORTER announced that the next bill for consideration was SB 316. He said that this was a bill that had extensive testimony here in Juneau and on teleconference. He believed it was fair to say that the commercial fishing permit holders around the state thought, perhaps this was not the best bill in the world. He noted that the sponsor of the bill was Senator Halford, whose aide was present and able to answer questions about it. CHAIRMAN PORTER asked what the wish of the committee on CSSB 316 was. Number 685 REP. DAVIDSON and REP. JAMES both wished to keep the bill in committee for a little while. REP. KOTT made the motion to move the CS for SB 316, and Rep. James objected. CHAIRMAN PORTER asked if there was discussion. Number 693 REP. JAMES stated she did not have as big a problem with it in theory as she did in practice. She felt like it was trying to create a solution in the wrong way, and she felt like many, many more people would be hurt than would gain from this effort. Short of rewriting this bill, and getting it another substitute, which we have the right to do, though we are running out of time, she would like to see the department come up with some better solutions by regulation or by the existing law, rather than to pass this bill which she felt would hurt a lot of people. Number 704 REP. PHILLIPS said she believed that the testimony taken from the people the other day showed clearly what the people felt about this bill. One thing came up in the testimony that she thought could be fixed. She said she had offered a judiciary letter of intent, asking the Department of Fish and Game and the Department of Public Safety to research the issue of an actual physical line; the placement of an actual buoy line. She had talked with several commercial fishermen and several other people involved in this fishery to see if it would be possible, and the answer was yes, it would be possible. She said she did talk with people in the Department of Public Safety. It is something that they have had under consideration. Then, if there was an actual physical line, rather than a line that could be so misrepresented by the difference in technical equipment (LORAN) that people have, she thought there would be a far better leg to stand on before any kind of increase in fines was instituted. CHAIRMAN PORTER said he certainly would support that letter of intent. In his discussions after the bill was heard, it would appear that it is the Department of Fish and Game that actually has to adjust their regulations so as to put out the physical line, in place of the LORAN line. But by an enforcement standpoint, to him, it seemed that the LORAN's variation, which is establishable in court, is 600 feet or so; so you could not get a conviction. You could negligently cross the line, but guilt beyond reasonable doubt would need to be proven, so a conviction could not be the result of crossing that 600 foot line. He said, if the tide moved the physical line 40 feet, who cares? Rep. Porter said he did not understand why the Department of Fish and Game was not already doing this. Number 732 REP. DAVIDSON gave an analogy, saying that in the great resource battle scheme of things, it appears that this bill is one in which general law completely bashes private industry and undermines the general economic well being of lots of people in other areas of the state. It seemed to him that if they were going to make specific law and apply it generally, this is not the best way to go. This will create more problems than it solves. He said, it would appear that if we are not going to be committed to spending more on enforcement, as well as resource management, we should at least, before we move forward with haste, be fair to fishers in other areas. He said he knows there is a problem where this law is trying to correct an eager fisherman and even people who are cheating as they take from the resource bank of the fisheries, but he thinks this bill goes too far and is, in fact, unfair in many respects; because, although he is not a fisherman, he knows it is sometimes difficult to be specific out on the fishing grounds. He believes this bill needs more work, but said he could appreciate the intent of the bill. Number 756 REP. JAMES responded to Rep. Phillips' concerns in her letter of intent. With the letter of intent, she did not think they needed the bill. That was her concern about it. She thought they could handle this if they were to take it on responsibly and solve this problem. She said she will not sit there and say that she wants fishermen to get over the line, taking fish they are not entitled to, and all those other kinds of things. She just thought that if you make the rules so they are easy enough to follow, and then you have the "fish cops" out there to do this, and if the line is very visible, it should not be difficult for them to get a conviction. REP. JAMES said there is more to this bill than that. The additional consequences for failure to adhere to the rules is much, much more, and it is a guilty until proven innocent proviso, and she thought that was another thing that seemed to be totally against due process, particularly when the line is so invisible. She said if they were over the line and then forced to prove that they were not, or prove that they had a reason to be there, or it was an accident, or was not meant to be there, it is a difficult situation. They are replying to something that really needs to be addressed, and Fish and Game can really address it, and we should give them an opportunity. If they do not address it, then next year, maybe we should come back with such a bill, but she thought the timing is wrong for this right now. It has served it's purpose; everybody has been heard, and the problem should be solvable without this legislation. Number 780 CHAIRMAN PORTER stated that he did not have the concern expressed in quite a bit of the testimony, that someone in another fishery, where the gross take might be $6,000, would be fined for a violation up to this maximum of $6,000. If this happened in Southeast somewhere he thought the magistrates and the district court judges who hear these cases would apply appropriate levels of fines. Moving the maximum fine up to $6 - $12,000 would only be applied in those fisheries in which that level of fine was significant. One set can bring in a whole bunch of bucks, as opposed to one month's worth of fishing, not bringing in hardly any. The thing that concerns Rep. Porter is the forfeiture of the permit for a second violation, and you can be found guilty of the violation for a nonintentional act. That is kind of tough, he said, especially when we have decided that the method they use to determine how it is you are going to be found negligent leaves quite a bit to be desired. Number 800 REP. JAMES compared this to the timber industry. She said if you cross the line and cut trees you are not supposed to cut, it does not make any difference if you did it accidentally or not. You did it, and you have to pay three times the value of the timber that you benefitted from. She said she did not know why they could not dream up something for fishing that would be the same thing, and then that way, it would always be applied fairly, and this does not. Rep. James said if she were a fisherman and there was the possibility of a $6,000 or $12,000 fine, and that may be more than she would ever make in a season, she would feel uncomfortable having that law in the book. Number 810 CHAIRMAN PORTER said that the one difference between the fisheries and the timber industry is that you have a big green "X" on that tree, and that tree is not going to move, but it is tough to mark those fish. REP. JAMES replied that the point had been made. That is the point. Are they taking fish illegally? Or are they not? And there has to be a sufficient amount of marking to indicate that for sure they are over the line, or they are not. CHAIRMAN PORTER said he understood. He asked if there was any further discussion or any objection to moving the bill. REP. JAMES objected to moving the bill. A roll call vote was taken and SB 316 was voted down 5 - 1. Reps. Phillips, Davidson, Green, Porter and James voted no. Rep. Kott had the only yes vote. Rep. Nordlund was absent. It was asked of Chairman Porter what he decided to do with SB 252. DANIELLA LOPER said SB 252 would be heard on Wednesday. CHAIRMAN PORTER explained that the number one witness who wanted to testify on SB 252 was not available. SJR 39 - RIGHT TO KEEP AND BEAR ARMS HOUSE CS FOR SENATE JOINT RESOLUTION NO. 39(JUD): Proposing amendments to the Constitution of the State of Alaska to guarantee, in addition to the right of the people to keep and bear arms as approved by the voters at the time of ratification of the state Constitution, that the individual right to keep and bear arms shall not be unreasonably denied or infringed by the state or a political subdivision of the state, and establishing that the expanded right to keep and bear arms does not change the level of judicial scrutiny applicable to the review of laws relating to weapons. Number 850 CHAIRMAN PORTER said that where this bill was left, they had received an awful lot of testimony saying that they were not in favor of the committee substitute. He offered it himself. He explained that it basically changes two things: it adds one word to the essence of the constitutional amendment that we would be asking the public to adopt, and that is the word "unreasonable" on page 13 of the draft. It would then say that the individual right to keep and bear arms should not be unreasonably denied or infringed by the state or by a subdivision of the state. It would also add in another section of the constitution if this passed, and then passed to go to the public, the standards of review that the Supreme Court would want to use in assessing questions brought to them around this constitutional amendment would be assessed at a standard that they now use, a sliding scale standard, which is, basically, a middle ground between a compelling interest standard and rational basis standard. That is the essence of the CS, he said. Number 866 REP. JAMES asked if they would keep the same type of review that is now in use. CHAIRMAN PORTER said, "Yes, they would." REP. JAMES then asked if there was any way to tie that language in, and whether that was something that, because this is the date we passed that, they know what they are using on that date. TAPE 94-61, SIDE B Number 000 CHAIRMAN PORTER gave a generalization, and passed out a sponsor statement, saying that there are three general standards of review the court can use when looking at how they want to interpret constitutional amendments. The compelling interest standard, which is, by the way, the standard that the letter of intent that the Senate sent over with this bill asks that we adopt and then would be asking the Supreme Court to use, is a standard of review that basically says the state must show a compelling interest in passing a law if it impacts an individual right, and if, short of a compelling interest, that law will fall. The other end of the scale is a rational basis test which basically says if the state can show any rational basis in protecting the public or whatever, in passing this law, then it will override an individual right. What the Supreme Court now uses is called the sliding scale standard of review, which is basically a standard of review between these two extremes that tries to balance the interest of the state against the interest of the individual and make a rational decision on it. What we would be saying by Section 3 on page 2 is that we would like the Supreme Court to use that standard in their review of this question. He entertained a motion to adopt the CS for SJR 39(JUD). CHAIRMAN PORTER noted that there was an objection (made by Rep. Phillips) and asked if there was any discussion. REP. PHILLIPS said she did not like the Judiciary Committee CS. She did not agree that the people of Alaska would buy into adding the word "unreasonably" or the level of judicial scrutiny as part of our constitutional statement on the right to bear arms. She was opposed to those amendments. Number 075 REP. JAMES said she does not believe the people of Alaska would agree, either, yet she supported the amendment. She said she believes that both sides of this issue are in agreement of the same thing, and the visualization of what they want the rights of the people to be is the same; it is determined then how the wording is. And she understood Rep. Porter's concerns to be that if we say, "It shall not be infringed by the state or by a subdivision of the state," and we know how our courts determine how our constitution reads. If someone were to challenge that because of a denial of the use of a gun, and they challenged it on a constitutional right to bear arms that cannot be infringed by the state or a subdivision, we could have a court decision that says, "That's absolutely right, absolutely everybody can carry a gun." Rep. James said she has a problem with that in the fact that there are a lot of people we do not want to have guns. She said people have tried to convince her that is not the case, and she kind of agrees with them, but that is not the case. That will never happen. However, knowing how word for word our courts, and not having a lot of faith in them either, how they determine the language in the constitutional law leads me to believe that might be the case, and the other reason for being persuaded is that the "unreasonably" that is used under searches and seizures has been doing us fine; and so she thinks that "unreasonable" in this might do us fine as well. So, for that reason, she supported the CS. Number 129 CHAIRMAN PORTER discussed the bill some more. He said he believed that Rep. James was correct. It was his perception that there is no opposition to this bill, in terms of the stated intent, or it's adoption. What there is a difference of opinion on is the effect of the wording of the bill. While he understands the point of view that says if you put "unreasonable" in here, it gives the court the opportunity to do just the opposite, be totally unreasonable about the level to which they would confiscate weapons. He said he has had a lot of experience dealing with the law, and therefore does not have that concern. It is not, by any stretch of the imagination, going to happen in our lifetime, unless the country falls. They would not waive a 4th amendment, which does have the word "unreasonable" in it. He said, you can imagine all of the interpretations that have gone through the courts upholding the individual's right to be protected in their own house against unreasonable searches and seizures. No one is going to walk into a house and obtain your guns or anything else, just because of the provision that has the word "unreasonable" in it. CHAIRMAN PORTER said, we have had, though, in this state, a couple of decisions that caused him the concern he did have. The Raven case and the Glass case that were briefly touched on. The Raven case was the infamous marijuana case that we bring up quite a bit, where the Supreme Court took the state's right to privacy, which is an additional irritant, if you will, to this discussion, because our state has a right to privacy, many other states do not have the right to privacy in their constitution. It is one of those unqualified statements in our constitution like the proposed Senate bill that each individual has the right to privacy. But what does that mean? Is it an absolute right? Well, they came darn close to saying that when the Supreme Court said you can possess marijuana, a federally prohibited contraband item. We do not care about federal Law. You can have marijuana in your home, because of our constitutional right to privacy. What would preclude them from saying, "In your home, a felon could possess a firearm? We do not care if it is against the law, federally. This is a statement of absolute. The individual right to keep and bear arms shall not be denied." That is what the Senate version of this bill says. That is his concern. That is his rationale for this amendment. Additionally, CHAIRMAN PORTER said, the Senate does not want the Supreme Court to use the rational basis or the sliding scale, but wants the court to use the compelling interest standard to review that question, which would, in his mind, give it even more likelihood that we would have one of these unfavorable situations. CHAIRMAN PORTER then asked if there was any further discussion. REP. PHILLIPS stated that today they addressed two bills that dealt with the courts, which, in her mind, made totally unreasonable rulings. One, in violation of the law we have in the books, says that if you are under 21, it is against the law to consume alcohol, and yet a district court official sent down a ruling that said the policeman had to actually see the kid under 21 in possession of the alcohol, or drinking it, before they can be arrested. What a bunch of poppycock, she said. Then the other one we had was on the oil lease, where just very recently, we had a judge send down, in her mind, a very unreasonable ruling on a state law that we have in existence on oil leases. She did not believe it would be good to give the courts any more flexibility, especially for something as precious as this amendment to our constitution. She did not agree with the word "unreasonable" in there a bit. REP. DAVIDSON stated that he can appreciate each point of view, but he does not have the same misgivings about our court system. He said he knows they have a very difficult task and he has not studied law to the extent most people have within the system, so he does not hold the same strong views, but if the forefathers really intended that clause to apply to the individual instead of "people," he thought they would have said "individual" right to keep and bear arms. He thought the CS would strike a happy balance, or a reasonable balance, and that is why he thought to go forward without the CS might end up in a situation where some of those areas that you suggested we may not want to be in. Rather than doing nothing, he thought they should go forward with something, and so that was why he supported the CS. CHAIRMAN PORTER said that the one thing he did not want anybody to misunderstand is that this CS provides the individual right to keep and bear arms. He guessed it to be debatable, but we had testimony and he believe that, absent another court decision or statute or constitutional amendment, the law of the land in this state right now is an old attorney general's opinion that said there is no individual right to keep and bear arms in this state; it is a collective right of a militia. So if it is ultimately passed out of this body and voted on by the public, favorably, we are establishing a right that does not now exist in this state to individually keep and bear arms. The only thing he was asking is that it be made reasonable, not absolute. REP. GREEN shared Rep. Phillips' concern about our courts. HE said, you can add to some of those absurd decisions, some of this reapportionment garbage they went through, but his concern is just the opposite, that, as expressed by the chairman, the courts could be so unreasonable as to go absurdly around and say that this is a conflict now, this is a more recent law, obviously the people's elected officials want felons and everybody else to have the law. He honestly did not believe that would happen, as he remembered back. Rep. Green said that most of the people present would be too young to remember this, but when they came around with gun registration, he was concerned about what might happen. He was not even an NRA (National Rifle Association) member then, but he was concerned, so when he bought his son a weapon under the registration law, he hid all the rest of his weapons, just because he had been led to believe that there would be confiscation. This registration gave them an address, and it gave them the type of weapon, and he stood by, thinking that within ten years, they would have it, and this was 25 years ago. He still has his weapon. So he does not think we are headed down the road for undue oppression of the courts. "Unreasonable," he thinks, is a good word. REP. JAMES responded, saying that she thinks they are moving in that direction, and she thinks she is older than Rep. Green. The reason that she thinks it has not happened is because of the NRA lobby. They have been the ones protecting us, and she thinks it is time for us to take some of our own protection. CHAIRMAN PORTER gave another reason why he does not think this would ever happen. He said that right now there are some suggestions that there should be involuntary searches for firearms in certain federally funded housing projects in Boston and in Chicago. In speaking today with an attorney in Anchorage on another matter this came up. He is an NRA member and an advocate of this legislation, and he agreed that the ACLU will intercede in a heartbeat, and it will never be upheld, based on the 4th amendment, which has "unreasonable" in it. That is just not going to happen. Voluntarily, maybe, but not involuntarily, he said. After an objection, a roll call vote on the adoption of the CS was taken. Reps. Kott and Phillips voted no; Reps. Green, Davidson, James and Porter voted yes; and Rep. Nordlund was absent. REP. JAMES motioned to move the bill. CSSJR 39 was moved. CHAIRMAN PORTER entertained the motion to adopt a House Concurrent Resolution due to a title change in the movement of the bill. Seeing no discussion or objection, the resolution was adopted. The House Judiciary Committee was adjourned at 2:30 p.m.