Legislature(1995 - 1996)
02/08/1995 01:05 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE February 8, 1995 1:05 p.m. MEMBERS PRESENT Representative Brian Porter, Chairman Representative Joe Green, Vice Chairman Representative Con Bunde Representative Bettye Davis Representative Al Vezey Representative Cynthia Toohey Representative David Finkelstein MEMBERS ABSENT None COMMITTEE CALENDAR * HB 74:"An Act relating to the assault of children by adults." PASSED OUT OF COMMITTEE HB 25:"An Act revising Rule 16, Alaska Rules of Criminal Procedure, relating to discovery and inspection in criminal proceedings." HEARD AND HELD * HB 120:"An Act relating to public employers defending and indemnifying public employees and former public employees with respect to claims arising out of conduct that is within the scope of employment." PASSED OUT OF COMMITTEE HB 42:"An Act relating to absentee voting, to electronic transmission of absentee ballot applications, and to delivery of ballots to absentee applicants by electronic transmission, and enacting a definition of the term 'state election' for purposes of absentee voting." PASSED OUT OF COMMITTEE (*First public hearing) WITNESS REGISTER JULIE JENSEN ZARR 2606 W. 32nd Anchorage, AK 99517 Telephone: (907) 248-2036 POSITION STATEMENT: Testified in favor of HB 74 SHAUN VIRGIL JENSEN 3550 Taiga Drive Anchorage, AK 99515 Telephone: (907) 345-3939 POSITION STATEMENT: Testified in favor of HB 74 DEAN GUANELI, ASSISTANT ATTORNEY GENERAL Criminal Division, Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Provided Information Supporting HB 74 MICHAEL J. CORKILL, PRESIDENT Alaska Peace Officers Association 1979 Peger Road Fairbanks, AK 99709 Telephone: (907) 451-5316 POSITION STATEMENT: Testified in favor of HB 120 and HB 25 CINDY STROUT, PRIVATE CRIMINAL DEFENSE ATTORNEY 360 K Street Anchorage, AK 99501 Telephone: (907) 276-0367 POSITION STATEMENT: Testified against HB 25 RICHARD VITALE, AIDE Representative Sean Parnell Alaska State Legislature State Capitol, Room 515 Juneau, AK 99801-1182 Telephone: (907) 465-2995 POSITION STATEMENT: Testified in favor of HB 25 SCOTT BRANDT-ERICHSEN, ATTORNEY Municipality of Anchorage 632 West 6th Avenue Anchorage, AK 99501 Telephone: (907) 343-4545 POSITION STATEMENT: Testified in favor of HB 120 DUANE UDLAND, DEPUTY CHIEF Anchorage Police Department 4501 South Bragaw Anchorage, AK 99507 Telephone: (907) 264-4400 POSITION STATEMENT: Testified in favor of HB 120 GAIL VOIGTLANDER, ASSISTANT ATTORNEY GENERAL Special Litigation Section, Civil Division Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, AK 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Provided information on HB 120 KEVIN RITCHIE, DIRECTOR Alaska Municipal League 217 Seward Street Juneau, AK 99801 Telephone: (907) 586-1325 POSITION STATEMENT: Testified in favor of HB 120 BRAD THOMPSON, DIRECTOR Division of Risk Management Department of Administration P.O. Box 110218 Juneau, AK 99811-0218 Telephone: (907) 465-5723 POSITION STATEMENT: Testified in favor of HB 120 TOM ANDERSON, AIDE Representative Terry Martin Alaska State Legislature State Capitol, Room 502 Juneau, AK 99801-1182 Telephone: (907) 465-3783 POSITION STATEMENT: Testified in favor of CSHB 42 DAVID KOIVUNIEMI, ACTING DIRECTOR Division of Elections Office of the Lieutenant Governor P.O. Box 110017 Juneau, AK 99811-0017 Telephone: (907) 465-4611 POSITION STATEMENT: Provided information on CSHB 42 PREVIOUS ACTION BILL: HB 74 SHORT TITLE: ASSAULT BY ADULTS ON CHILDREN SPONSOR(S): REPRESENTATIVE(S) BUNDE,Green,Toohey,Kubina JRN-DATE JRN-PG ACTION 01/06/95 40 (H) PREFILE RELEASED 01/16/95 40 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 40 (H) STATE AFFAIRS, JUDICIARY, FINANCE 01/20/95 106 (H) COSPONSOR(S): GREEN 01/20/95 106 (H) COSPONSOR(S): TOOHEY 01/23/95 119 (H) COSPONSOR(S): KUBINA 01/25/95 136 (H) COSPONSOR(S): B.DAVIS, ROKEBERG 01/31/95 (H) STA AT 08:00 AM CAPITOL 102 01/31/95 (H) MINUTE(STA) 02/01/95 191 (H) STA RPT 7DP 02/01/95 191 (H) DP: JAMES, PORTER, GREEN, IVAN 02/01/95 191 (H) DP: ROBINSON, WILLIS, OGAN 02/01/95 192 (H) ZERO FISCAL NOTE (DOC) 2/1/95 02/01/95 192 (H) REFERRED TO JUDICIARY 02/08/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 25 SHORT TITLE: CRIMINAL DISCOVERY RULES SPONSOR(S): REPRESENTATIVE(S) PARNELL,Porter,Green,Bunde JRN-DATE JRN-PG ACTION 01/06/95 27 (H) PREFILE RELEASED 01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 27 (H) JUDICIARY, FINANCE 01/18/95 75 (H) COSPONSOR(S): GREEN 01/19/95 89 (H) COSPONSOR(S): BUNDE 01/27/95 (H) JUD AT 01:00 PM CAPITOL 120 01/27/95 (H) MINUTE(JUD) 01/30/95 (H) JUD AT 01:00 PM CAPITOL 120 01/30/95 (H) MINUTE(JUD) 02/01/95 (H) FIN AT 01:30 PM HOUSE FINANCE 519 02/06/95 (H) JUD AT 01:00 PM CAPITOL 120 02/06/95 (H) MINUTE(JUD) 02/08/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 120 SHORT TITLE: INDEMNIFICATION OF PUBLIC EMPLOYEES SPONSOR(S): REPRESENTATIVE(S) PORTER,Toohey JRN-DATE JRN-PG ACTION 01/25/95 132 (H) READ THE FIRST TIME - REFERRAL(S) 01/25/95 132 (H) JUDICIARY, FINANCE 02/08/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 42 SHORT TITLE: ABSENTEE VOTING & USE OF FAX SPONSOR(S): REPRESENTATIVE(S) MARTIN JRN-DATE JRN-PG ACTION 01/06/95 31 (H) PREFILE RELEASED 01/16/95 31 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 31 (H) STA, JUD, FIN 01/24/95 (H) STA AT 08:00 AM CAPITOL 102 01/24/95 (H) MINUTE(STA) 01/25/95 126 (H) STA RPT CS(STA) 4DP 2NR 01/25/95 126 (H) DP: PORTER, GREEN, ROBINSON, JAMES 01/25/95 126 (H) NR: IVAN, WILLIS 01/25/95 126 (H) FISCAL NOTE (GOV) 1/25/95 01/25/95 126 (H) REFERRED TO JUDICIARY 02/08/95 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 95-8, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:05 p.m. on Wednesday, February 8, 1995. A quorum was present. CHAIRMAN BRIAN PORTER stated the following bills would be heard: HB 74, HB 25, HB 120, and CSHB 42. Representative Bunde, sponsor of HB 74, was called forward to testify on the bill. HJUD - 02/08/95 HB 74 - ASSAULT BY ADULTS ON CHILDREN Number 048 REPRESENTATIVE CON BUNDE briefly described the reason for the bill. Shaun Jensen, who was present to testify, had been attacked by three adults. The charge brought against those adults was a misdemeanor, and there was general concern of the public that this was inappropriate. They would like to send a much stronger message, that a felony charge should be brought in this type of a case. The law did not allow this to occur, and HB 74 fills that gap by allowing prosecutors the discretion to bring a felony charge where there is the age difference. Current law protects those who are under the age of ten. There is a gap between 10 and 16, and that is what this law addresses. In order to avoid unnecessary felony charges, there is the flexibility for the prosecutor, so they can still charge people with a misdemeanor, as they are under the current statutes, if there are no aggravating circumstances. If the defendant reasonably believes that the victim was 16 or older, this provision would protect those from having an unnecessary felony charge, and certainly would minimize the impact on the state. Number 115 JULIE JENSEN ZARR, AUNT OF THE VICTIM, asked the committee for support in passing HB 74. On November 11, 1994, at 5 a.m. while delivering the Anchorage Daily News, her 14 year old nephew was viciously assaulted by three adult men. They beat him. He lost two permanent teeth. He had neck trauma, and was run over by his own snow machine. The way the law reads now, it was a misdemeanor. She brought pictures to share, before and after the assault. She also started a crime alert program two days after the incident, and distributed over 900 of them on cars, all over Anchorage, by herself. She then contacted Representative Bunde to ask for support of a change in the law. MS. ZARR moved to Anchorage in 1971, and grew up in south Anchorage. Back then it was the most wonderful place to grow up. Back then, the law, as it reads now, probably fit. There were no drive-by shootings, assaults on kids, and other people. Anchorage did not have these kinds of crimes in the 50s, 60s, 70s, or 80s. As the crimes changed, so must the laws change to fit the crimes of 1995 and beyond. This assault brought to light the need to make a difference and to try to turn a negative into a positive; teaching her two children and nephew empowerment instead of victimization. The change in the law will show through hard work, one person can have a positive impact on society. The outcry of support from the people of Anchorage has also had a healing effect on her nephew. She brought over 1,000 signatures from the citizens of Anchorage, and a lot more are coming in, in support of HB 74. SEAN VIRGIL JENSEN, VICTIM OF ASSAULT BY THREE ADULTS, asked for the committee's support on HB 74. While delivering the Anchorage Daily News, he was repeatedly assaulted by three men. He was thrown down, run over by his own snow machine, and this is a misdemeanor. Something obviously needs to be changed if three men can beat up a 14 year old kid and get off with a hand slap. He has serious injuries he has to live with for the rest of his life, because he has two missing permanent teeth that will never grow back, as well as mental injuries. The men who beat him will probably not remember this for very long, but he will. He has been seriously injured, both physically and emotionally. This cowardly action on the part of three adults needs to be at least a felony on the record. He realized the passage of this bill will not help his case. However, he will be satisfied to know that it will help others. DEAN GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, said the Michie Company recently published a book on Alaska Criminal Law. He stated after many years in the criminal justice system, you would think the laws would cover just about everything, and then you run across a case like this, showing there is a loophole in unusual circumstances. This bill plugs that loophole, and it is something that is an appropriate change. He proposed the amendment of adding the word "intentional" before the word "causes" on page 2, line 3. His reason for this suggestion has to do with the effect of alcohol intoxication and how that relates to the mental states used in Alaska Statutes. He felt the change would still make the law usable. All assaults that are going to occur by adults against children are certainly going to be intentional, as most assaults are. He thought the law continued to give prosecutors discretion to use or not to use this more serious offense in certain cases. He did not want to suggest charging every high school senior of 18 years old, who gets into a fight with a freshman who is 15 years old, with a felony. In appropriate cases, it is a tool that prosecutors ought to be able to use. Number 265 REPRESENTATIVE CYNTHIA TOOHEY asked Mr. Guaneli about the alcohol exclusion. If a perpetrator is smashed out of his mind, that does not excuse the assault, does it? Number 280 MR. GUANELI said alcohol intoxication, after reaching a certain level, can allow someone to show that they did not form the intent to do something, so that is an excuse. What he was referring to is, under current law, if someone is driving intoxicated and gets into an accident, and people in the car are injured as a result of this accident, the driver can be charged with an assault. If the person is killed, it is manslaughter. Unless you insert the word, "intentionally", you end up with a situation where someone could get in a car wreck, and if there are children injured, the driver gets charged with a felony; if there are adults injured, the driver gets charged with a misdemeanor. It creates the situation where two people doing essentially the same thing get charged with widely varying crimes. That is the reason for this suggestion which covers all the cases we want to cover, while avoiding some undesirable results. Number 295 CHAIRMAN PORTER clarified this for the committee. As a practical matter, it is a fair statement to say that, except in that situation described, "intentional" is an element of an assault anyway. Number 300 REPRESENTATIVE JOE GREEN was a little concerned with Mr. Guaneli's answer to Representative Toohey's question. If a person is at the .2 or .3 level, or wherever it is when you lose your ability to consciously form an intent, but you still perpetrate this act, does that mean this will not apply, as amended? Number 314 MR. GUANELI said if you can show that you did not intend to do what you were doing because you were so intoxicated; intoxication is a defense to any specific intent crime. It is a defense to kinds of crimes that use the word "intent". Number 320 REPRESENTATIVE GREEN was upset that if he goes out and punches somebody out, it is a tort of intent; but if he drinks enough first, he would be excused from that intent portion. Number 326 MR. GUANELI explained that would be so if the crime was one using the specific element of "intent". Most of our crimes do not. There would still be some crimes that you would be guilty of. Number 332 REPRESENTATIVE GREEN said people will talk about their drinking escapades, and a moody drunk who gets belligerent, wants to go fight. He was so wasted, he did not know he hit "Johnson" right square in the nose. Whoa! Number 340 MR. GUANELI replied proving you did not intend to do something like this raises what is called "diminished capacity." It requires an expert, a psychologist or psychiatrist, saying this person was so drunk he was unable to form the intent to steal the property, to drive the car, or to assault the person. That level of intoxication, that level of proof, very rarely occurs; so it should not make any difference in 99 percent of the cases we would encounter. Number 350 REPRESENTATIVE GREEN said his point was that had these three adults been to that point, then we would not even be here talking about this because they would have had an excuse anyway. Number 358 CHAIRMAN PORTER explained the flip side of this is that "intoxication" is not a defense. It is only grounds for mitigation of sentence, unless that intoxication is at such a level that they had the inability to form the requisite intent to do that. The fact situation of the case we are talking about, is prima facie evidence that that would not have been reached, because they could not have done all of those things having been so intoxicated as to reach this level of inability to form an intent. It is a rare situation, and it sounds like we are creating a big loophole, but this defense has been raised in cases Chairman Porter has handled, and it just does not happen. Number 375 REPRESENTATIVE TOOHEY agreed with Representative Green unless someone has got you and is pouring drinks down you, it is your intent to drink, and your intent to get sloshed. She asked if this would be effective without the word "intentional". Number 383 MR. GUANELI answered without the word "intentional" it would still be effective, there may be rare cases that lead to divergent results that might be unfair. Without the word "intentional" in there, it is still going to be an effective piece of legislation. CHAIRMAN PORTER acknowledged Representative Irene Nicholia's presence in the meeting, and welcomed her. He then asked the wish of the committee as regards the word "intentional". REPRESENTATIVE TOOHEY opposed it. REPRESENTATIVE BETTYE DAVIS asked what type of unfairness could result from adding "intentional". She wanted to weigh that before voting. Number 404 MR. GUANELI felt the unfairness that could occur would be a rare occurrence. That is where someone is driving drunk, they hit a car, injure a child, and under the standard current version, that would be a felony. If they drove drunk, struck a car, injuring an adult, that would be a misdemeanor. So you would have two people essentially doing the same conduct, which is driving a car and striking something else; and one person is charged with a felony, and the other person is charged with a misdemeanor. That situation is corrected by inserting the word "intentional". What we are talking about is a rare occurrence where, in this particular case, the facts fit into a small loophole. We are talking about things that rarely happen. Number 427 CHAIRMAN PORTER asked if the prosecutor would have the ability to charge consistently in that rare occurrence. Number 430 MR. GUANELI said probably so. REPRESENTATIVE GREEN, being a novice in law, asked if there would be any way this could be done, leaving intentionally in there, and at the end, say that alcohol consumption is not a mitigating circumstance, or something to that effect. People have driven across Los Angeles Basin, and they cannot even remember it. So they were capable of negotiating for a long time. MR. GUANELI was not certain the courts would accept that. When you have to prove intent, there are a lot of things that can show you did not intend to do something, and the courts have held intoxication as one of them. We may end up reversing a long line of court opinions. Frankly, this is such a rare occurrence, that if you have it in there, or not, it is not a major problem. Number 450 CHAIRMAN PORTER asked if anyone would like to offer that as an amendment. Number 455 REPRESENTATIVE AL VEZEY made a motion to move the amendment, adding the word "intentionally" on line 3, page 2, between "older" and "causes". It would then read, "...older, intentionally causes...". There was objection to adopting the amendment. CHAIRMAN PORTER asked for a roll call vote. Representatives Finkelstein and Vezey voted yes. Representatives Toohey, Davis, Bunde, Green, and Porter voted no. The amendment failed with a five to two vote. Number 470 REPRESENTATIVE GREEN made a motion to move HB 74 with individual recommendations and attached fiscal notes. There was objection so a roll call vote was taken. Representatives Toohey, Bunde, Davis, Finkelstein, Green and Porter voted yes. Representative Vezey voted no. The bill moved out of committee on a 6 - 1 vote. HJUD -02/08/95 HB 25 - CRIMINAL DISCOVERY RULES CHAIRMAN PORTER announced the hearing on the committee substitute for HB 25, version R, dated 2/3/95, which had not yet been adopted. Number 510 MICHAEL J. CORKILL, PRESIDENT OF THE ALASKA PEACE OFFICER'S ASSOCIATION, representing 1200 peace officers, chose HB 25 as a high priority piece of legislation. He felt the bill would enhance the truth seeking process of criminal trials across the state. Number 530 CINDY STROUT, PRIVATE PRACTICE ATTORNEY IN CRIMINAL DEFENSE, was against many of the revisions suggested in HB 25. As far as the opt in provisions, she thought many clients would choose to opt out, creating a cumbersome situation. The proposed changes are not necessary since the current system, which has a few glitches, generally works very well. She wanted to encourage the committee to think about the costs involved, as well as the potential cumbersomeness of the opt in situation. Number 570 REPRESENTATIVE DAVID FINKELSTEIN asked what the impact would be on a client in a case where the information could not be made available to anybody, including the defendant. On page 9, line 14, the change is made in what information is to be made available. By eliminating "shall be subject to the other terms and conditions the court may provide," all information would now be under that category. Number 606 MS. STROUT thought the intent there was to prevent a criminal defendant from obtaining confidential information regarding witnesses and/or the victim. She did not see that as a major problem. Number 623 REPRESENTATIVE FINKELSTEIN said he may be misunderstanding it, but as it is written currently, it states that confidential materials cannot be provided, including all information. The concern here, especially in the case of the public defender, where they are dealing with large numbers of clients, is the inability to give even the police report with witnesses names removed. He asked Ms. Strout if this had been a problem in her experience. Number 635 MS. STROUT agreed that could be unfair. In her experience, she has had clients who want to read every single word, and other clients who do not. A defendant's expense for attorney time goes far beyond necessary costs if the confidential information can be deleted in a way to protect privacy. Number 660 REPRESENTATIVE TOOHEY made a motion to adopt the committee substitute for HB 25, version R, as the working draft. CHAIRMAN PORTER asked if there was objection or discussion on the motion. REPRESENTATIVE FINKELSTEIN asked if someone could quickly explain the differences from the previous draft, before the version was adopted. He said the committee members had received a very good memo explaining the differences between the committee substitute and existing law, but he had not figured out what the substantial changes were from the previous draft. Number 680 MR. GUANELI said there was a change in provisions for expert witnesses; one of which is on page 4, lines 8 and 9. There is a similar change occurring on page 6, lines 13 and 14. Essentially, what those changes do is to require that, in addition to getting a name and address of the expert, the expert also has to provide a report. This is something the prosecution experts almost always do. Defense experts never do. In fact, defense attorneys will instruct or request the experts not to write a report, so the prosecution does not have anything. He felt Mr. Salemi did not have an objection to this, and he understood Cynthia Strout's testimony to be that it was a good idea to give notice of experts, and copies of their reports. That change is reflected in this draft. In other words, not only will you provide names and addresses of experts, but the expert shall provide a written report of any of the tests conducted and the conclusions reached by the expert. That change was inserted into the bill on pages 4 and 6. MR. GUANELI noted unfortunately, the other language that was in there, that attempted to do something similar, was not taken out. That was the language that follows immediately, on page 4, lines 10 and 11, where it says "...; the prosecutor shall also make available for inspection and copying, any other reports, or witness statements of these experts;" He was not certain exactly what that does, and it could certainly be interpreted as, "any other reports and any other cases the expert has ever done," which is inappropriate. There is something similar on page 6, at lines 15 and 16. That happened when the committee substitute was drafted up. Something was added and something should have been deleted, but was not. Number 730 REPRESENTATIVE TOOHEY made a motion to adopt amendment number 1, which would delete on page 4, line 10, starting with the words "the prosecutor shall", to line 11, "these experts." Remove those. And also, on page 6, line 15, from the words "defendant shall" to "these experts" on line 16. Delete those. Number 744 REPRESENTATIVE FINKELSTEIN noted they needed to get back on track, as there had been a previous motion to accept the committee substitute. Number 750 MR. GUANELI described the last change, so the committee could first decide whether or not to adopt the draft version R, before passing an amendment. The last change appearing at page 2, lines 27 - 29, just added a few words. The statutory reference on line 29 really applies only to the duty of the prosecuting attorney to turn over things to the defense. This particular provision talks about the duty of the defense to turn over things to the prosecutor; so the wording had to be changed to make it so that the duty of the defense attorney is to provide the prosecution with names of witnesses to the same extent and in the same manner as is required of the prosecution. So it is a slight change in wording to make the playing field level, and to impose the same burden on both parties. Number 775 CHAIRMAN PORTER asked if the committee wished to have further discussion on the adoption of the committee substitute, version R. Hearing no objection, the committee substitute was adopted. Number 780 REPRESENTATIVE TOOHEY made a motion to pass amendment number 1, as described above. Seeing no objection, the amendment passed. MR. GUANELI explained the intent of this work draft language on page 2. Lines 13 - 21 requires, as part of mandatory disclosure, that the defense let the prosecution know at least ten days before trial if the defense is going to rely upon an alibi defense or some other defense mentioned in the statutes. If the defendant does not do that, the prosecution either gets a continuance or it can impose a more stringent sanction. This particular provision on these nine lines, was something that was recommended by the Criminal Rules Committee as a change that would be considered by the Supreme Court. He commented that this was one of those changes we thought was a good idea to incorporate into the bill now rather than running the risk of, in a couple of months, having the Supreme Court change its rule and therefore causing confusion over what the legislature intended. This has been suggested by the Criminal Rules Committee to the Supreme Court and has actually been submitted to the Bar Association. Number 825 REPRESENTATIVE FINKELSTEIN had problems with two areas. One, being the major burden occurring when we prohibit giving any of this information to the defendants themselves. He felt that the defendant should have the right to access this information. The way it will occur if this bill passes, is that some employee of the state or employee of the defense attorney will sit down in a jail or whatever setting it is, while the defendant goes through mounds and mounds of material. If the goal is to restrict their access to this information, somehow it is not being served. They can sit and take notes off of it while it is there. There is nothing that prohibits them from getting what they are after anyway. It seems we are just throwing a procedural hurdle into the whole thing. Paperwork, as we know, runs our judicial system and our government. He felt we had protection now for the materials intended to be kept confidential and did not understand why the other information cannot be given to the defendant to read. Besides the logical side of fairness, there is also the practical side. We have a fiscal note that is one-third of a million dollars. He assumed most of that to be attributable to this particular problem. He hoped for some middle ground that would achieve the purpose of the bill without this hurdle. TAPE 95-8, SIDE B Number 000 RICHARD VITALE, AIDE TO REPRESENTATIVE PARNELL said they had spoken with Representative Finkelstein and John Salemi from the Public Defender's Office. They were entertaining some of the suggestions and had something in written form, which he had not seen yet, as it just came out today. He said the sponsor would like to see the bill held, while they work on these suggestions, and then heard in committee again. CHAIRMAN PORTER asked from what view the fiscal note was created. MR. VITALE said that this is due to the opinion that not everybody would opt in. If everybody opted in there would be a zero fiscal note. So the fiscal note here reflects the scenario that some people would not opt in. CHAIRMAN PORTER noted the fiscal note is driven on one side of the issue by the Criminal Rules Committee and by the public defender's assumption that everyone will not opt in. On the other side of the issue, in the only state where there is a track record on this, the facts seem to indicate that they do opt in. These two assumptions conflict. He stated they would hold the bill, awaiting the sponsor's amendments. He asked Dean Guaneli to work with the sponsor on the bill. HJUD - 02/08/95 HB 120 - INDEMNIFICATION OF PUBLIC EMPLOYEES Number 075 CHAIRMAN PORTER, sponsor of HB 120, introduced the bill. It passed the House last year, passed three committees in the Senate, and died in Rules. This bill provides to the rest of the public employees in this state, privileges that are already given to most public employees, either by law or by employee union agreement. It basically allows public employees, not otherwise covered, to be indemnified from damages accrued because of an act or omission occurring as a direct result of their employment. As indicated, in balancing the position, it will allow employees to be indemnified for negligent acts, but not for reckless or intentional acts. These protections are now provided to most of the represented employees of the state and of many municipalities. They are provided by statute to employees of the University of Alaska and all municipal school districts. Number 140 REPRESENTATIVE VEZEY asked if all state employees and all University of Alaska employees are currently indemnified. CHAIRMAN PORTER said all state employees are not indemnified. There will be testimony on how that breaks out. One of the problems is for mid-management, which is often the category that is not covered, because they do not belong to a union nor are they covered by law. They get themselves named in a suit just because they are in the line of responsibility within an organizational chart, and then it stays with the person for years. Chairman Porter said he just got his name off of a lawsuit that he had been on for years; and he retired in 1987. The adverse affect of that is, you can try to get a mortgage on your house, and find you are a bad risk, because you are named in a suit that has a request for $5,000,000 in punitive damages. Number 200 SCOTT BRANDT-ERICHSEN, MUNICIPAL ATTORNEY OF ANCHORAGE, said Anchorage is working on a special legislative program, and while some preferred program is included, it has not been formally approved. The public employer is immune from liability but the employee is liable, if the facts in the case support it. Because of the way it clearly spells out the responsibilities and obligations of the employer and the employee, it prevents conflict between the employer and employee when it comes to lawsuits against public employees in the scope of their duties. Number 260 DUANE UDLAND, DEPUTY CHIEF OF THE ANCHORAGE POLICE DEPARTMENT said for several years, they have tried to get this through the legislature. We are not asking for immunity for our employees, but for protection while doing the work of government, without the fear of someone taking our houses, boats, or cars because of a suit filed against us. He said they are trying to make good faith decisions and there is a tremendous amount of fear out there, when individuals can be held accountable for actions that they take because of their employer. He hoped the bill would pass. Number 310 REPRESENTATIVE BUNDE wanted to clarify that this does not indemnify against gross negligence. Number 318 CHAIRMAN PORTER said it specifically excludes that coverage. Number 320 GAIL VOIGTLANDER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE outlined the legal concept in the bill, as it is currently drafted. Indemnification is defined in the bill as settlements and judgments including the attorney fees and costs entered against the employee; so when we are talking about indemnification, that is the cause that is being dealt with. This bill covers acts and omissions that occur during the course and within the scope of the employee's employment with the public employer. There are several exceptions or clarifications within the bill that delineate where it is intended that there be defense or indemnification of the public employee. The public employee is not obligated to defend or indemnify if the act or omission was a result of gross negligence or misconduct. Another point not covered by the bill is disciplinary or criminal matters brought against the employee. Number 420 MR. CORKILL echoed the testimony given by Duane Udland. Government should be held accountable for its actions. If someone is harmed through a government employee, the employee should be able to make a claim as appropriate. However, public employees should be defended and protected, and the bill sets it out very clearly. On page 2, line 2, where it talks about the acts or omissions which are a result of gross negligence, the public employer would not have the responsibility to protect the one who committed the act. Having been a person who has been subject to lawsuit as a law officer, it is very disconcerting to have your name attached to something like that. Not only can the person pursuing the lawsuit get your personal property, this adversely affects the performance of the law officer. When a law officer has to react very quickly to any emergency at hand, it sometimes causes a hesitancy, because the officer pauses to think about what is or is not allowed. He felt the indemnification bill would help protect this person from these sorts of fears. Number 480 KEVIN RITCHIE, DIRECTOR, ALASKA MUNICIPAL LEAGUE (AML), said they supported the bill last year and this year. As a former city manager he has been on both sides, as an employee and an employer. He felt the language was comprehensive and easy to understand and also balanced, in how it protects the employee, the employer, and the public in a lot of cases. He stated AML supports passage of the bill. Number 545 BRAD THOMPSON, DIRECTOR, DIVISION OF RISK MANAGEMENT, DEPARTMENT OF ADMINISTRATION, testified in favor of the bill. He stated this bill codifies the existing practice the state provides to its employees. The majority of employees are provided this under collective bargaining agreements, defense, commitments, or contractual statements; but not in as clear a form as is presented in this bill. He thought this document had been massaged a lot over the last two years. It is a complex subject, yet it does show to both the employer and the employee, the conditions required and provisions provided. REPRESENTATIVE VEZEY wondered if members of the boards and commissions were covered. MR. THOMPSON said the definition of "employee" in this bill would extend to members of boards and commissions established by the employer. REPRESENTATIVE GREEN made the motion to move HB 120 with individual recommendations and attached fiscal notes. Hearing no objection, HB 120 moved out of committee. HJUD - 02/08/95 CSHB 42 - ABSENTEE VOTING BY FAX Number 600 TOM ANDERSON, AIDE TO REPRESENTATIVE TERRY MARTIN, sponsor of CSHB 42, introduced the bill. He said the bill allows absentee voters who apply within four days of an election, to receive a ballot by fax, and vote, sending it back by fax (electronic transmission). Number 640 REPRESENTATIVE FINKELSTEIN felt the word "or" on page 2, line 16 ought to be "and". Everyone submitting an absentee ballot has to include their address, but the implication with the "or" is that if they send in the absentee ballot, they actually do not have to include the address, just whatever fax number they happen to be using that day. Number 654 REPRESENTATIVE GREEN read it to say you will give the address where you want the ballot sent. MR. ANDERSON thought the reason behind that was an individual may be traveling and not have an address. Number 675 DAVID KOIVUNIEMI, ACTING DIRECTOR, DIVISION OF ELECTIONS, OFFICE OF THE LIEUTENANT GOVERNOR, answered Representative Finkelstein's question about where in law we require the same information on the face of the ballot request and on the ballot jacket, that we do for a fax ballot. He said on an absentee ballot, they have to give the information, including a resident address and things like that. CHAIRMAN PORTER asked him to look at page 2, line 14. He said they are hoping this does not mean that if you vote by fax, you do not have to provide your address on the face of the ballot itself. We presume this means that if you want your absentee ballot mailed to you, you have to give the address to mail it to. If you want it faxed to you, you have to give the fax number in which to fax it to, and that is all that means; it does not change the requirements for providing information on the face of the absentee ballot. Number 725 MR. KOIVUNIEMI was not sure how they were going to do that yet. He presumed they would still require that they give a resident address in order to identify who they are, that they are qualified, and what portion of the ballot would be counted; based upon the address they gave us, and the district they registered at. REPRESENTATIVE FINKELSTEIN noted that it currently states on the absentee ballot that you must include your out of state address. Number 750 MR. KOIVUNIEMI said all this was saying is that if you do request your application by fax, that you also give them a fax number where it is supposed to be transmitted. That is the intent. Number 760 CHAIRMAN PORTER thought there was probably a lot of unnecessary language in the statute. If they ask for fax ballots, you are going to have to have a number to send it to. Number 800 REPRESENTATIVE BUNDE asked what district they would vote in. MR. ANDERSON said they would just vote in the district they last voted in, until they change their residence. REPRESENTATIVE VEZEY mentioned that you have to change your address 30 days before an election in order to vote in the new district. There was some concern about the lack of privacy in a faxed vote. TAPE 95-9, SIDE A Number 000 REPRESENTATIVE TOOHEY said that is a person's right to give up their privacy in how they voted. The ability to vote absentee outweighs the inconvenience of another person seeing your ballot. Number 075 REPRESENTATIVE BUNDE said the Pioneer Homes Advisory Board was concerned about those who had been declared legally incompetent, and therefore represented by others. Number 084 MR. ANDERSON did not know how to prevent someone from being fraudulent in that case. It is no different than someone voting absentee by mail. Number 130 REPRESENTATIVE FINKELSTEIN offered an amendment to delete the portion of the bill that would allow the actual ballot to be faxed back to the Division of Elections. There was objection and a roll call vote was taken. Representatives Davis, Bunde and Finkelstein voted yes. Representatives Toohey, Vezey, Green and Porter voted no. The motion failed four to three. Number 230 REPRESENTATIVE VEZEY made a motion to move the committee substitute for HB 42, with individual recommendations and fiscal notes attached. Hearing no objection, committee substitute for HB 42 passed out of committee. ADJOURNMENT The House Judiciary Committee adjourned at 3 p.m.