Legislature(1995 - 1996)

03/24/1995 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE JUDICIARY STANDING COMMITTEE                              
                         March 24, 1995                                        
                           1:40 p.m.                                           
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Bettye Davis                                                   
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 Representative Al Vezey                                                       
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 HB 219:  "An Act authorizing special medical parole for terminally            
          ill prisoners."                                                      
                                                                               
          PASSED OUT OF COMMITTEE                                              
                                                                               
 HB 25:   "An Act revising Rule 16, Alaska Rules of Criminal                   
          Procedure, relating to discovery and inspection in                   
          criminal proceedings, to adopt the comparable federal                
          rule."                                                               
                                                                               
          PASSED OUT OF COMMITTEE                                              
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 REPRESENTATIVE ELDON MULDER                                                   
 Alaska State Legislature                                                      
 Alaska State Capitol, Room 411                                                
 Juneau, AK  99811-1182                                                        
 Telephone:  (907) 465-2647                                                    
 POSITION STATEMENT:  Sponsor of HB 219                                        
                                                                               
 DENNIS DEWITT, Legislative Assistant                                          
   to Representative Eldon Mulder                                              
 Alaska State Legislature                                                      
 Capitol Building, Room 411                                                    
 Juneau, AK  99811-1102                                                        
 Telephone:  (907) 465-2647                                                    
 POSITION STATEMENT:  Spoke on CSHB 219                                        
                                                                               
 JERRY SHRINER, Special Assistant                                              
 Office of the Commissioner                                                    
 Department of Corrections                                                     
 240 Main Street, Suite 700                                                    
 Juneau, AK 99801                                                              
 Telephone:  (907) 465-4640                                                    
 POSITION STATEMENT:  Spoke on CSHB 219                                        
                                                                               
 RICHARD VITALE, Administrative Assistant                                      
   to Representative Sean Parnell                                              
 Alaska State Legislature                                                      
 Capitol Building, Room 515                                                    
 Juneau, AK  99811                                                             
 Telephone:  (907) 465-2995                                                    
 POSITION STATEMENT:  Gave sponsor statement for HB 25                         
                                                                               
 DEAN GUANELI, Chief Assistant Attorney General                                
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
 Telephone:  (907) 465-3428                                                    
 POSITION STATEMENT:  Testified on HB 25                                       
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 BILL:  HB 219                                                               
 SHORT TITLE: PAROLE OF TERMINALLY ILL PRISONERS                               
 SPONSOR(S): REPRESENTATIVE(S) MULDER, Foster                                  
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 03/01/95       531    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 03/01/95       531    (H)   JUDICIARY, FINANCE                                
 03/22/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/24/95              (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                       
 02/08/95              (H)   MINUTE(JUD)                                       
 02/13/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/13/95              (H)   MINUTE(JUD)                                       
 02/15/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/17/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/22/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/22/95              (H)   MINUTE(JUD)                                       
 02/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/10/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/10/95              (H)   MINUTE(JUD)                                       
 03/15/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/15/95              (H)   MINUTE(JUD)                                       
 03/20/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/24/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 95-35, SIDE A                                                            
                                                                               
                                                                               
 The House Judiciary Standing Committee was called to order at 1:40            
 p.m. on Friday, March 24, 1995, by CHAIRMAN BRIAN PORTER.  A quorum           
 was present.  CHAIRMAN PORTER announced HB 219 and HB 25 would be             
 heard.  He noted that there were two people on teleconference.                
                                                                               
 HB 219 - PAROLE OF TERMINALLY ILL PRISONERS                                 
                                                                               
 CHAIRMAN PORTER introduced Representative Eldon Mulder, sponsor of            
 HB 219, and invited him speak about the bill.                                 
                                                                               
 Number 140                                                                    
                                                                               
 REPRESENTATIVE ELDON MULDER, Prime Sponsor of HB 219, came before             
 the committee to speak on HB 219.  He explained HB 219 allows for             
 the transport for terminally ill.  He said the issue was looked at            
 last year at which time the bill was smaller, and a little more               
 concise.                                                                      
                                                                               
 REPRESENTATIVE MULDER related that special medical parole is a tool           
 which the Sentencing Commission recommended, and the Department of            
 Administration gave support to as well, in relation to taking                 
 advantage of paroling individuals to defer medical costs.  He                 
 stated it is a tool the Parole Board can use to help control some             
 of the spiraling costs incurring in correctional institutions.                
 Representative Mulder also stated that when an inmate is                      
 incarcerated and in a medical facility, the state is responsible              
 for 100 percent of their medical costs.  If the inmate is released            
 on medical parole, then the individual is eligible for at least               
 half coverage by Medicaid and the state would be able to save some            
 of the cost.                                                                  
                                                                               
 REPRESENTATIVE MULDER gave an example of costs incurred.  He said             
 last year, there was a case of an AIDS victim who spent the last              
 two months of his life in a hospital.  He was an inmate and his               
 care was part of the supplemental budget request, with those two              
 months costing the state $567,000.  Representative Mulder stated              
 that had there been this provision, some of the costs could have              
 been awarded.                                                                 
                                                                               
 REPRESENTATIVE MULDER went on to say, he felt the changes that                
 occur relate, in part, to added security and definition of                    
 terminally ill.  He said it is important to note there is no                  
 intention to have this ever be a risk to the community at large, as           
 these individuals pose no risk to society.  They are simply ready             
 for their time to die.  The inclusions of the changes made were to            
 make the bill more constrictive than in the past and is not as                
 flexible.  Representative Mulder said this gives the Board of                 
 Parole more direction and definition as to what is meant.  He                 
 called attention to the proposed draft committee substitute (CS)              
 and a proposed amendment to that CS.  He said this was a product of           
 consultation with the Department of Law, the Parole Board, the                
 Department of Corrections and his office.                                     
                                                                               
 CHAIRMAN PORTER stated there were two people on teleconference                
 wanting to testify as well as people in attendance to answer                  
 questions.  He then called on Representative Finkelstein.                     
                                                                               
 Number 140                                                                    
                                                                               
 REPRESENTATIVE DAVID FINKELSTEIN asked for additional information             
 (indisc.).                                                                    
                                                                               
 Number 145                                                                    
                                                                               
 REPRESENTATIVE MULDER described the new sections as adding a small            
 change to inmates for medical care, as a way for Corrections to let           
 inmates know that there is a cost for prescription drugs and                  
 medical relief.  There is a small incremental amount to see a                 
 doctor, if necessary.  The whole thing is to make certain there is            
 a need for a doctor so they know it costs to see a doctor.                    
 Representative Mulder referred to Section 2, where drug testing is            
 discussed and said it requires the prisoner to reimburse the                  
 Department of Corrections.  He said it is important to note that it           
 is only to the extent that the person can pay.  Representative                
 Mulder stated Section 13 makes other insurance coverage available             
 to prisoners, primarily to the Department of Corrections.  In other           
 words, if the inmate has any coverage, his coverage is primary and            
 will be charged before the state will pick up some of the costs.              
 He said Section 14 requires the commissioner of the Department of             
 Public Safety to implement a program requiring other coverage to              
 pay for health care provided in community jails.                              
                                                                               
 CHAIRMAN PORTER asked if there were questions of Representative               
 Mulder.                                                                       
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY referred to the wording, "special               
 medical or medical referral," and asked if there would be those who           
 are dying?                                                                    
                                                                               
 REPRESENTATIVE MULDER answered that this has been a problem in                
 trying to define "terminally ill," and the answer is basically,               
 yes.  The restrictions and constraints are very restrictive.  He              
 said the Department of Law could speak to that.                               
                                                                               
 REPRESENTATIVE TOOHEY then referred to page 5, line 5, and asked if           
 people wouldn't be released dying but are still able to work.                 
                                                                               
 REPRESENTATIVE MULDER said that is current statute.                           
                                                                               
 REPRESENTATIVE TOOHEY said to spend $500,000 on a terminally ill              
 patient is horrible.  She would like to have backup on that so it             
 can be investigated.                                                          
                                                                               
 REPRESENTATIVE MULDER responded that the patient was in the                   
 intensive care unit for most of the time, and she is right.  It was           
 outlandish.                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN complimented Representative Mulder for             
 taking on this subject, which is not very appealing or rewarding.             
 He said the emphasis on public condemnation makes it hard to see              
 how it fits into the criteria listed in the bill.  He said the                
 criteria relates to cost savings.                                             
                                                                               
 REPRESENTATIVE PORTER said his understanding is the emphasis is on            
 protecting the public when making this kind of consideration.                 
                                                                               
 REPRESENTATIVE FINKELSTEIN feels it is a philosophical                        
 consideration as there is a big prison population with various                
 categories of crimes against society.  He asked who do we let out             
 early?  He said he is not trying to be inhumane about this, but               
 whatever conditions originally applied to the person, the need to             
 protect society, the need to punish them for their violations,                
 still exist.  He said there may be less of a threat if they are               
 going to die, but you can have a terminal disease and still be a              
 threat to society.  Representative Finkelstein said he feels it is            
 obvious it is not a clear cut thing in that these requirements are            
 being met.                                                                    
                                                                               
 Number 320                                                                    
                                                                               
 DENNIS DEWITT, Legislative Assistant to Representative Eldon                  
 Mulder, explained that the bill requires that there be a change in            
 the person's status.  This bill is trying to get to where someone             
 has come into the system, their status changed, and they no longer            
 present a danger to society.  He said this bill does not give                 
 anyone a parole by simply meeting the criteria of being terminally            
 ill.  The Parole Board still has the discretion to make a                     
 determination whether or not they are a danger to society.  The               
 purpose of the bill is to give the Parole Board a little more                 
 flexibility in areas where not only is it less costly to provide              
 care, but it would be possible to pick up other third party                   
 coverage to help pay for the care.  He also stated that most                  
 prisons are not the appropriate place to provide for the care, so             
 there is some humane economic to it.                                          
                                                                               
 Number 350                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN referred to page 8, lines 27 through 29,           
 regarding having prisoners pay part of, or all of the costs.  He              
 said he feels prisoners and money is a big issue, and what they               
 should be paying for.  He suggested that something be added that              
 prisoners shall reimburse the department for drug testing.                    
                                                                               
 MR. DEWITT said they had looked at health care costs in general and           
 this was somewhat within that rubric.  He gave an example of                  
 someone who is in a halfway house and earning wages, then it was              
 felt it was a reasonable expectation they help pay for the                    
 requirements of being back in society.  Mr. DeWitt said he feels it           
 is a reasonable way to possibly recapture some costs for the                  
 department as they are driven by the activity of the individual.              
                                                                               
 REPRESENTATIVE MULDER responded there are numerous instances where            
 friends or cohorts of the inmates smuggle contraband into the                 
 institutions such as injecting a tennis ball with whatever, throw             
 it over the fence and it is picked up by the cohort on the inside.            
 He stated this effort is modeled by some other states to try and              
 recoup some of the medical costs being experienced here.                      
                                                                               
 Number 400                                                                    
                                                                               
 REPRESENTATIVE CON BUNDE asked what the practical cost was.  He               
 stated he wouldn't look at it to really recapture much money, and             
 the net result might be by the time the paperwork is done, there is           
 no money return.  He asked what will the net gain be in charging              
 these fees?                                                                   
                                                                               
 REPRESENTATIVE MULDER replied that there was no definite price                
 established and he doubts the Department of Corrections could give            
 a range.  He said he realizes it will not defray the entire cost of           
 the program, but every little bit helps.  This is one of those                
 areas where they are trying to do a little bit of cost prevention.            
                                                                               
 Number 440                                                                    
                                                                               
 REPRESENTATIVE TOOHEY felt drug testing would be a good way to                
 start, to see if it will help.                                                
                                                                               
 REPRESENTATIVE BETTYE DAVIS wanted to follow up on the subject                
 Representative Bunde was speaking about regarding the amount of               
 money prisoners would pay.  How much money do prisoners receive and           
 where does it come from?                                                      
                                                                               
 JERRY SHRINER, Special Assistant, Office of the Commissioner                  
 Department of Corrections, answered that while they are                       
 institutionalized, the amount of money they would have would be               
 very limited.  Those who work can generally expect to make about $1           
 per hour and there are a number of personal items they are required           
 to buy out of that.  He continued that those out on the street, in            
 halfway houses, or on probation, have routine drug testing at                 
 specified intervals.  Those people generally have some income and             
 probably are capable of paying for their drug testing.  Mr. Shriner           
 said on the inside, it would be much more difficult to have them              
 pay.                                                                          
                                                                               
 Number 500                                                                    
                                                                               
 CHAIRMAN PORTER said he hoped the routine drug testing is not so              
 routine as to be predictable.                                                 
                                                                               
 REPRESENTATIVE DAVIS indicated she still wants an answer to her               
 question.  She said is still not clear about the people who are               
 incarcerated and their money.                                                 
                                                                               
 MR. SHRINER responded that people inside the prison have jobs in              
 the kitchen, maintenance, laundries and various areas.  They are              
 paid for that work.  Not all of the prisoners have work.  There are           
 not enough jobs or money to pay everyone, but some do have jobs               
 and, on rare occasions, some have income that is available from               
 outside sources, i.e., relatives, trust funds, businesses, but                
 there is not a lot of that.  He said basically, it is that buck an            
 hour they get for jobs inside the prisons.                                    
                                                                               
 REPRESENTATIVE DAVIS asked if those who did not have any money                
 would still have their medical needs taken care of.                           
                                                                               
 MR. SHRINER affirmed that their medical needs would be taken care             
 of.                                                                           
                                                                               
 CHAIRMAN PORTER referred to Section 12 and asked if he was correct            
 in the assumption that to be released with this provision, the                
 inmate must be in a condition wherein he/she is confined to a bed             
 throughout the entire period, or is confined to bed and likely to             
 die from the condition, or is a quadriplegic?  He asked if those              
 were the three reasons.                                                       
                                                                               
 MR. DEWITT answered yes, that is the way it was crafted.                      
                                                                               
 CHAIRMAN PORTER said he appreciated the victim's rights language in           
 the bill, but wonders if it is necessary.  He asked if the victims            
 rights are already in the statute in terms of the victim having the           
 right to be notified of parole hearings that might result in the              
 release of their perpetrator?                                                 
                                                                               
 MR. DEWITT stated they were trying to differentiate between special           
 medical parole and discretionary parole, the concern being to make            
 sure someone later on doesn't suggest the victim's right is not               
 included in special medical parole.                                           
                                                                               
 CHAIRMAN PORTER interjected that the victim's right is not a                  
 constitutional right, and the statute says that any release,                  
 determination, or consideration will be determined at the time.               
                                                                               
 MR. DEWITT agreed it may be overkill, but felt that was better than           
 leaving an open question.                                                     
                                                                               
 REPRESENTATIVE MULDER responded he had attempted to be as cautious            
 and conservative as possible when it was approached last time, but            
 he doesn't want to be accused of being soft on crime any more than            
 anyone else does.  He said there is still a level of fear raised by           
 certain elements.                                                             
                                                                               
 CHAIRMAN PORTER asked if there were other questions of the sponsor            
 or agency people.  There being none, he entertained a motion to               
 adopt the proposed CS.                                                        
                                                                               
 REPRESENTATIVE BUNDE moved to adopt CSHB 219(JUD), Version G, dated           
 3/23/95.                                                                      
                                                                               
 CHAIRMAN PORTER referred to the proposed amendment by the                     
 Department of Law.  He asked if Mr. DeWitt would like to speak to             
 it.                                                                           
                                                                               
 MR. DEWITT referred to the CS and said the drafters suggested it be           
 included as an amendment to the CS rather than rewriting the entire           
 CS for today's meeting.                                                       
                                                                               
 CHAIRMAN PORTER asked Mr. DeWitt to explain the amendment.                    
                                                                               
 MR. DEWITT stated it adds the word "quadriplegic" on page 1, line             
 3, following the word "disabled".  The word "quadriplegic" would              
 also be added following the word "disabled" on page 3, lines 8 and            
 10.                                                                           
                                                                               
 CHAIRMAN PORTER called the amendment, "amendment number one."                 
                                                                               
 CHAIRMAN PORTER said there was a motion to move amendment number              
 one, Version G.1, dated 3/25/95.  He asked if there was an                    
 objection.  Hearing none, amendment number one was adopted.                   
                                                                               
 Number 570                                                                    
                                                                               
 REPRESENTATIVE BUNDE said, "I just want to observe that, you know             
 as I read this, and I want it very clear on the record, that                  
 anybody would be eligible for this medical parole because of their            
 physical condition, would no longer be very likely (indisc.),                 
 they'd have to think evil thoughts, mostly.  And then, while I                
 don't object to the paying, and even if it's only a dollar, and I             
 would guess the average inmate probably makes $120 a month, they              
 have to have a $25 urine test once, twice, three times a month, and           
 they had to pay a full boat, it'd be pretty spendy.  Some of them             
 most likely (indisc.) their prorated obligation would be pretty               
 small.  And noting, in my mind, that that's simply a token payment            
 so that they're reminded of their cooperation in their                        
 rehabilitation or whatever.  Also noting that it's not going make             
 any money necessarily for the Department of Corrections.  So I                
 don't oppose it, I just want to make sure that we understand we're            
 not making a fiscal impact while we do this."                                 
                                                                               
 REPRESENTATIVE JOE GREEN asked how many people fall into these                
 three categories.                                                             
                                                                               
 REPRESENTATIVE MULDER responded it was probably between five and              
 ten.                                                                          
                                                                               
 REPRESENTATIVE GREEN said at potentially a half million dollars               
 each.                                                                         
                                                                               
 REPRESENTATIVE MULDER agreed.                                                 
                                                                               
 REPRESENTATIVE BUNDE made a motion to move CSHB 219(JUD) as                   
 amended.                                                                      
                                                                               
 CHAIRMAN PORTER said there is a motion to move the bill with                  
 individual recommendations and attached fiscal notes.  He asked if            
 there was an objection.  Hearing none, CSHB 219(JUD) was passed out           
 of the House Judiciary Committee.                                             
                                                                               
 HB 25 - CRIMINAL DISCOVERY RULES                                            
                                                                               
 CHAIRMAN PORTER said the next order of business would be HB 25,               
 which has been before the committee previously.  There were areas             
 of concern, but he believes they have been addressed in the new CS.           
 He asked the sponsor to introduce the new CS and explain it.                  
                                                                               
 Number 630                                                                    
                                                                               
 RICHARD VITALE, Administrative Assistant to Representative Sean               
 Parnell, sponsor of House Bill 25, came before the committee.  He             
 noted Representative Parnell was at another committee meeting.                
 Mr. Vitale called the committee's attention to Draft H of the bill,           
 which is a departure from the last version which was an opt-in                
 version to discovery.  Mr. Vitale stated that Draft H attempts to             
 go about it in a slightly different way, which the American Bar               
 Association has endorsed, and many states have been going in this             
 direction.  It is full and open reciprocal discovery exempting only           
 defendant statements, which protects their rights to self-                    
 incrimination.  He asked that Mr. Dean Guaneli of the Department of           
 Law speak to direct questions about the bill and what it does.  Mr.           
 Vitale said he wouldn't give a history or explanation as this                 
 information is included in the committee packets.                             
                                                                               
 CHAIRMAN PORTER stated there were people to testify, two of them on           
 the teleconference network.                                                   
                                                                               
 MR. VITALE referred to working with other parties and said he has             
 worked with counsel, prosecutors and public defenders.  Ninety-nine           
 percent of the bill reflects that everybody is pretty much on line.           
 He noted John Salemi with the Public Defender's Office still had              
 one concern but he felt it could be dealt with in another                     
 committee.  There was no logical solution to everybody's concerns,            
 but he was comfortable with the bill being passed out as it is now.           
 An unidentified speaker asked to hear about Sections 2, 3, and 4.             
                                                                               
 Number 690                                                                    
                                                                               
 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division,            
 Department of Law, said he would summarize where the bill has been            
 changed and perhaps help the committee understand why the                     
 provisions are needed.  He stated the initial version of the bill             
 was essentially the federal rule on discovery, which appears to               
 give information to both sides but doesn't.  You exchange names of            
 experts and then nobody gets anything until the middle of trial.              
 That, the department felt was inappropriate so they tried to do the           
 next best thing which was to adopt a rule that comported with the             
 Alaska Supreme Court's constitutional decision in this area, and              
 which tried to legally circumvent that decision by having the                 
 defendant waive his right to self-incrimination.  In other words,             
 agree to opt into this discovery process and the prosecution and              
 defense both turned over information.                                         
                                                                               
 MR. GUANELI said that turned out to be a cumbersome process.  After           
 thinking about this, it was decided perhaps the best way to address           
 this issue was to focus on the Supreme Court's opinion that had               
 caused all the problems - the Scott decision which is over 20 years         
 old - and take it on directly.  In other words, to propose a                  
 statute that would say the prosecution gives over information, the            
 defense gives over information.  He said that flies directly in the           
 face of the Supreme Court Scott decision.  Mr. Guaneli said this            
 bill, on its face, if that decision is still good law, is                     
 unconstitutional, but it is hoped the Supreme Court will change its           
 mind.  When there is a case brought up to it, it will reverse the             
 Scott decision and it will uphold this bill.  The department thinks         
 that will be the case because Alaska has the most liberal discovery           
 rules in the country.  The Scott decision is the only Supreme Court           
 decision out there that rules in that way, by saying there are                
 Fifth Amendment rights to witness lists.                                      
                                                                               
 MR. GUANELI said given that that's the case, and given that the               
 American Bar Association (ABA) has come out with a new edition of             
 its discovery rule, which is largely adopted in this bill, he                 
 thinks the Supreme Court is going to go in that direction.  Mr.               
 Guaneli said this discovery rule was based on the 1970 ABA                    
 standards and the department thinks there is a good reason to                 
 believe the court will go along with the 1994 ABA standards.                  
                                                                               
 MR. GUANELI then referred to the last three sections, which are               
 proposed in the amendment.  He stated that in the process of coming           
 up with the new version of the bill, the sponsor's office and his             
 office both worked closely with the Public Defender Agency.  They             
 had a number of comments about the first draft.  He said their                
 concerns have been met on all but one minor point, and in doing so            
 there were some compromises.  In other words, the department                  
 expanded what they have to give the defense.  He said they are                
 giving them a little more or a little earlier discovery of certain            
 matters not requiring that they request it, but just automatically            
 turning them over which are things that they don't have to                    
 currently do.                                                                 
                                                                               
 MR. GUANELI referred to Section 2 and said it provides that the               
 bill is not severable.  In other words, if the court is going to              
 strike down part of it such as the defense obligation to turn over,           
 there is no reason to that they should be stuck with some                     
 additional obligations, so they go back to the current rule.  The             
 bill requires a non-severability clause because of an Alaska                  
 statute that says, "If the legislation is silent, it means it is              
 severable."  In other words, if one part is stricken down the other           
 part stays.                                                                   
                                                                               
 MR. GUANELI referred to Section 3, which says this applies to                 
 essentially all criminal cases that are going on right now.  If it            
 didn't fade out, there would be at least an ambiguity about whether           
 the rule applied to criminal cases that are going on in the system            
 at the time the bill took effect.  Mr. Guaneli said they want the             
 rule to apply to all criminal cases that are going on in the                  
 system.  He stated there is no reason to have two separate                    
 discovery rules applying to pre-July 15 cases and after July 15               
 cases.  If you don't specifically say it, there is a presumption              
 that a bill is not retroactive.                                               
                                                                               
 MR. GUANELI referred to Section 4, which says the Act takes effect            
 July 15, 1995.  That coincides with the effective date of the                 
 changes the Supreme Court made in their rule last month.  This says           
 that it specifically supersedes those changes, so at the time the             
 Supreme Court's rule changes would have taken effect, this new rule           
 would take effect, so you don't have three versions of the rule               
 going on, you've got just one.                                                
                                                                               
 REPRESENTATIVE TOOHEY asked if this would incur a whole bunch of              
 court cases that are going to turn supplemental.                              
                                                                               
 MR. GUANELI answered the department doesn't anticipate that any               
 kind of supplemental would be required.  They would anticipate that           
 litigation is going to be required to get the Supreme Court to                
 overrule the Scott decision.  Mr. Guaneli said the Criminal Rules           
 Committee that looks at these rules, and that had made the                    
 recommendations for the rules adopted last month by the Supreme               
 Court, many of the people on that committee are of the opinion that           
 the Supreme Court cannot change its rule in a way that is contrary            
 to one of its existing case law decisions.  It has to have a case             
 in front of it where there are arguments on both sides, pro and               
 con, in order for the court to do that.                                       
                                                                               
 CHAIRMAN PORTER asked if there were more questions about amendment            
 number one.                                                                   
                                                                               
 REPRESENTATIVE BUNDE moved amendment one.                                     
                                                                               
 CHAIRMAN PORTER indicated amendment one addresses Sections 2, 3 and           
 4.  He asked if there was discussion or objections.  Hearing none,            
 Amendment number one is adopted.  Chairman Porter said the                    
 committee needs to adopt the CS.                                              
                                                                               
 REPRESENTATIVE TOOHEY moved to adopt the CS for House Bill 25, work           
 draft H, dated 3/23/95.                                                       
                                                                               
 CHAIRMAN PORTER stated there was a motion to adopt the CS as                  
 described.  He asked if there was an objection.  Hearing none, the            
 CS for HB 25 was adopted.  Chairman Porter said he would entertain            
 another motion to adopt amendment number one.                                 
                                                                               
 REPRESENTATIVE BUNDE moved to adopt the amendment to the CS.                  
                                                                               
 CHAIRMAN PORTER asked if there was an objection.  Hearing none,               
 amendment number one was adopted.                                             
                                                                               
 REPRESENTATIVE BUNDE moved that committee substitute for House Bill           
 25, as amended, pass from the House Judiciary Committee with                  
 individual recommendations and attached fiscal notes.                         
                                                                               
 Number 800                                                                    
                                                                               
 CHAIRMAN PORTER asked if there was an objection.  Hearing none,               
 CSHB 25(JUD) was passed out of the House Judiciary Committee.                 
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 The House Judiciary Committee meeting was adjourned at 3 p.m.                 
                                                                               

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