Legislature(1995 - 1996)

02/08/1995 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                                
 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                   
 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                                                                
 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.                            
 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                
 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                
 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                   
 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            
 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                
 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                                                                    
 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                                                                    
 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                   
 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                 
 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             
 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                   
 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                
 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                                                                    
 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                                                                    
 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                                                                    
 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                                                                    
 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                                                                    
 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                                                                    
 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                
 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                                                                    
 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                                                                    
 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                   
 Hearing no objection, committee substitute for HB 42 passed out of            
 The House Judiciary Committee adjourned at 3 p.m.                             

Document Name Date/Time Subjects