Legislature(1995 - 1996)

04/10/1995 01:18 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                         April 10, 1995                                        
                           1:18 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                                                            
 HJR 9:    Requesting the governor to file suit in the United States           
           Supreme Court against the United States government                  
           alleging violations of the civil rights of Americans                
           listed as prisoners of war or missing in action in                  
           Southeast Asia, demanding that documents concerning these           
           individuals be released; and requesting the other states            
           to join in this suit.                                               
           PASSED OUT OF COMMITTEE                                             
 HB 201:   "An Act relating to prisoner litigation, post-conviction            
           relief, sentence appeals, amending Alaska Administrative            
           Rule 10, Alaska Rules of Appellate Procedure 204, 208,              
           209, 215, 521, 603, and 604, and Alaska Rules of Criminal           
           Procedure 11, 33, 35, and 35.1; and providing for an                
           effective date."                                                    
           PASSED OUT OF COMMITTEE                                             
 HB 202:   "An Act relating to the participation and accountability            
           of parents and guardians and the enforcement of                     
           restitution orders entered in juvenile delinquency                  
           proceedings; relating to claims on permanent fund                   
           dividends for certain court-ordered treatment in juvenile           
           delinquency proceedings; changing Alaska Supreme Court              
           Delinquency Rules 3(b) and 8(b); and providing for an               
           effective date."                                                    
           PASSED OUT OF COMMITTEE                                             
 HB 130:   "An Act relating to agency review of public comment on              
           the adoption, amendment, and repeal of regulations;                 
           relating to the examination of proposed regulations,                
           amendments of regulations, and orders repealing                     
           regulations by the Administrative Regulation Review                 
           Committee and the Department of Law; relating to the                
           submission to, and acceptance by, the lieutenant governor           
           of proposed regulations, amendments of regulations, and             
           orders repealing regulations; and requiring agencies to             
           make certain determinations before adopting regulations,            
           amendments of regulations, or orders repealing                      
           PASSED OUT OF COMMITTEE                                             
 WITNESS REGISTER                                                              
 SAM GRISWOLD, Legislative Secretary                                           
 Representative Jeannette James                                                
 State Capitol, Room 102                                                       
 Juneau, AK 99801-1182                                                         
 Telephone:  (907)  465-3743                                                   
 POSITION STATEMENT:  Introduced HJR 9                                         
 NANCY GOURLEY                                                                 
 1802 4th Avenue                                                               
 Kenai, AK 99611                                                               
 Telephone:  (907)  283-2208                                                   
 POSITION STATEMENT:  Testified in favor of HJR 9                              
 LEONARD EFTA                                                                  
 P.O. Box 353                                                                  
 Kenai, AK 99611                                                               
 Telephone:  (907)  283-7670                                                   
 POSITION STATEMENT:  Testified in favor of HJR 9                              
 SUSAN ROSS                                                                    
 P.O. Box 198                                                                  
 Kasilof, AK 99610                                                             
 Telephone:  (907)  262-5479                                                   
 POSITION STATEMENT:  Testified in favor of HJR 9                              
 GARY TYNDALL                                                                  
 P.O. Box 82977                                                                
 Fairbanks, AK 99708                                                           
 Telephone:  (907)  451-2271                                                   
 POSITION STATEMENT:  Testified in favor of HJR 9                              
 JIM MCCOMAS, President                                                        
 Alaskans Against the Death Penalty                                            
 112 West 9th Avenue, Suite 201                                                
 Anchorage, AK 99501                                                           
 Telephone:  (907)  258-0704                                                   
 POSITION STATEMENT:  Opposed HB 201                                           
 MARGI MOCK, Supervisor                                                        
 Appellate Section                                                             
 Public Defender Agency                                                        
 900 West 5th Avenue, Suite 200                                                
 Anchorage, AK 99501                                                           
 Telephone:  (907)  264-4437                                                   
 POSITION STATEMENT:  Testified against HB 201                                 
 LAURIE OTTO, Deputy Attorney General                                          
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
 Telephone;  (907)  465-3428                                                   
 POSITION STATEMENT:  Testified in favor of HB 201 and HB 202                  
 DIANE WORLEY, Director                                                        
 Division of Family and Youth Services                                         
 Department of Health and Services                                             
 P.O. Box 110600                                                               
 Juneau, AK 99811-0600                                                         
 Telephone:  (907)  465-3191                                                   
 POSITION STATEMENT:  Testified in favor of HB 202                             
 REPRESENTATIVE PETE KELLY                                                     
 Alaska State Legislature                                                      
 State Capitol, Room 513                                                       
 Juneau, AK  99801-1182                                                        
 Telephone:  (907)  465-2327                                                   
 POSITION STATEMENT:  Sponsor of HB 130                                        
 DEBORAH BEHR, Regulations Attorney                                            
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
 Telephone:  (907)  465-3600                                                   
 POSITION STATEMENT:  Testified in favor of HB 130                             
 JOHN LINDBACK, Chief of Staff                                                 
 Lieutenant Governor's Office                                                  
 P.O. Box 110015                                                               
 Juneau, AK 99811-0015                                                         
 Telephone:  (907)  465-4081                                                   
 POSITION STATEMENT:   Provided information on HB 130                          
 PAM NEAL, President                                                           
 Alaska State Chamber of Commerce                                              
 217 Second Street, Suite 201                                                  
 Juneau, AK 99801                                                              
 Telephone:  (907)  586-2323                                                   
 POSITION STATEMENT:  Testified in support of HB 130                           
 PREVIOUS ACTION                                                               
 BILL:  HJR  9                                                               
 SHORT TITLE: SUIT RE POWS & MIAS AGAINST U.S. & OTHERS                        
 SPONSOR(S): REPRESENTATIVE(S) JAMES, Kubina, Therriault, Mulder               
 JRN-DATE     JRN-PG               ACTION                                      
 01/16/95        18    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        18    (H)   MLV, STA, JUD                                     
 01/19/95        87    (H)   COSPONSOR(S): KUBINA                              
 03/15/95       757    (H)   COSPONSOR(S): THERRIAULT                          
 03/20/95              (H)   MLV AT 05:00 PM CAPITOL 17                        
 03/20/95              (H)   MINUTE(MLV)                                       
 03/22/95       847    (H)   MLV RPT  CS(MLV) 4DP                              
 03/22/95       847    (H)   DP: IVAN, WILLIS, FOSTER, KOTT                    
 03/22/95       847    (H)   INDETERMINATE FISCAL NOTE (LAW)                   
 03/27/95       946    (H)   COSPONSOR(S): MULDER                              
 03/28/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 03/28/95              (H)   MINUTE(STA)                                       
 03/29/95       973    (H)   STA RPT  CS(MLV) 5DP                              
 03/29/95       974    (H)   DP: OGAN, WILLIS, ROBINSON, GREEN,                
 03/29/95       974    (H)   INDETERMINATE FISCAL NOTE (LAW)                   
 04/10/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB 201                                                                
 SHORT TITLE: PRISONER LITIGATION AND APPEALS                                  
 SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                  
 JRN-DATE     JRN-PG               ACTION                                      
 02/27/95       488    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/27/95       488    (H)   STATE AFFAIRS, JUDICIARY, FINANCE                 
 02/27/95       488    (H)   3 ZERO FISCAL NOTES (LAW,CORR,DPS)                
 02/27/95       488    (H)   2 ZERO FISCAL NOTES (ADM)                         
 02/27/95       488    (H)   GOVERNOR'S TRANSMITTAL LETTER                     
 03/07/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 03/07/95              (H)   MINUTE(STA)                                       
 03/14/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 03/14/95              (H)   MINUTE(STA)                                       
 03/16/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 03/16/95              (H)   MINUTE(STA)                                       
 03/18/95              (H)   STA AT 10:00 AM CAPITOL 102                       
 03/18/95              (H)   MINUTE(STA)                                       
 03/20/95       807    (H)   STA RPT  3DP 1NR                                  
 03/20/95       807    (H)   DP: JAMES, GREEN, ROBINSON                        
 03/20/95       807    (H)   NR: IVAN                                          
 03/20/95       808    (H)   3 ZERO FNS (LAW, CORR, DPS)                       
 03/20/95       808    (H)   2 ZERO FNS (ADM) 2/27/95                          
 03/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/27/95              (H)   MINUTE(JUD)                                       
 03/29/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/29/95              (H)   MINUTE(JUD)                                       
 04/03/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 04/10/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB 202                                                                
 SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                  
 JRN-DATE     JRN-PG               ACTION                                      
 02/27/95       492    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/27/95       492    (H)   HES, JUDICIARY, FINANCE                           
 02/27/95       492    (H)   2 ZERO FISCAL NOTES (ADM)                         
 02/27/95       492    (H)   3 ZERO FISCAL NOTES (HES)                         
 02/27/95       492    (H)   2 ZERO FISCAL NOTES (LAW, REV)                    
 02/27/95       492    (H)   GOVERNOR'S TRANSMITTAL LETTER                     
 03/30/95              (H)   HES AT 02:00 PM CAPITOL 106                       
 03/30/95              (H)   MINUTE(HES)                                       
 04/03/95      1005    (H)   HES RPT  CS(HES) NT 3DP 2NR                       
 04/03/95      1005    (H)   DP: G.DAVIS, TOOHEY, ROBINSON                     
 04/03/95      1005    (H)   NR: BUNDE, BRICE                                  
 04/03/95      1005    (H)   5 ZERO FNS (3-HES, 2-ADM) 2/27/95                 
 04/03/95      1005    (H)   2 ZERO FNS (REV, LAW) 2/27/95                     
 04/10/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB 130                                                                
 SPONSOR(S): REPRESENTATIVE(S) KELLY,James                                     
 JRN-DATE     JRN-PG               ACTION                                      
 01/27/95       157    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/27/95       157    (H)   STA, JUD, FIN                                     
 02/14/95              (H)   STA AT 08:00 AM CAPITOL 519                       
 02/14/95              (H)   MINUTE(STA)                                       
 02/14/95              (H)   ARR AT 12:00 PM BUTROVICH RM 205                  
 02/15/95       396    (H)   COSPONSOR(S): JAMES                               
 02/21/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 02/21/95              (H)   MINUTE(STA)                                       
 02/21/95              (H)   ARR AT 12:00 PM BUTROVICH RM 205                  
 02/22/95              (H)   ARR AT 04:00 PM BELTZ ROOM 211                    
 02/22/95              (H)   MINUTE(ARR)                                       
 02/22/95              (S)   MINUTE(ARR)                                       
 02/23/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 02/23/95              (H)   MINUTE(STA)                                       
 03/09/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 03/16/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 03/16/95              (H)   MINUTE(STA)                                       
 03/18/95              (H)   STA AT 10:00 AM CAPITOL 102                       
 03/18/95              (H)   MINUTE(STA)                                       
 03/20/95       805    (H)   STA RPT  1DP 2NR 1AM                              
 03/20/95       805    (H)   DP: JAMES                                         
 03/20/95       805    (H)   NR: GREEN, IVAN                                   
 03/20/95       805    (H)   AM: ROBINSON                                      
 03/20/95       806    (H)   5 FISCAL NOTES (3-GOV, DHSS, DPS)                 
 03/20/95       806    (H)   INDETERMINATE FISCAL NOTE (LAW)                   
 03/20/95       806    (H)   3 ZERO FISCAL NOTES (ADM,GOV,DNR)                 
 03/22/95       840    (H)   CORRECTED STA RPT CS(STA) NT 2DP                  
                             2NR 1AM                                           
 03/22/95       841    (H)   DP: JAMES, PORTER                                 
 03/22/95       841    (H)   NR: GREEN, IVAN                                   
 03/22/95       841    (H)   AM: ROBINSON                                      
 03/22/95       841    (H)   5 FNS (3-GOV, DHSS, DPS) 3/20/95                  
 03/22/95       841    (H)   INDETERMINATE FISCAL NOTE (LAW)                   
 03/22/95       841    (H)   3 ZERO FNS (ADM,GOV,DNR) 3/20/95                  
 03/31/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 04/05/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 04/10/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 ACTION NARRATIVE                                                              
 TAPE 95-43, SIDE A                                                            
 Number 000                                                                    
 The House Judiciary Standing Committee was called to order at 1:18            
 p.m. on Monday, April 10, 1995.  All members were present.  The               
 meeting was teleconferenced to Kenai, Soldotna and Fairbanks.                 
 CHAIRMAN BRIAN PORTER stated that the following bills would be                
 heard:  CSHJR 9, CSHB 201, CSHB 202, and HB 130.  He called Sam               
 Griswold forward to introduce HJR 9.                                          
 HJR 9 - SUIT RE POWS & MIAS AGAINST U.S & OTHERS                            
 SAM GRISWOLD, Legislative Secretary to Representative Jeannette             
 James, Co-sponsor of HJR 9, gave a brief overview of what the                 
 Resolution proposes.  It requests the state of Alaska to file a               
 suit in the United States Supreme Court, joining other states that            
 have already done so.  Basically we would request that all                    
 documentation pertaining to those people missing in action (MIAs)             
 and prisoners of war (POWs) would be released in order to answer              
 the questions in controversy revolving around that issue.                     
 Number 100                                                                    
 NANCY GOURLEY testified via teleconference from Kenai.  She spoke             
 representing her brother who has been missing in action from Laos             
 since February 18, 1971, and also for her uncle who has been a                
 prisoner of war in Korea since July 5, 1950.  Her family has                  
 exhausted all other efforts to obtain a proper accounting of her              
 brother.  The Department of Defense has proposed their theory on              
 the incidents and the recovery of his remains which consisted of a            
 single tooth.  Her family has exhausted all of their efforts to               
 find out what really happened.  They have never claimed it to be              
 probable that he survived this incident, only that it is possible.            
 The information that has been given to them is very  questionable.            
 Documents have been fabricated.  The Department of Defense will               
 confirm that her family has been lied to.  She can prove that.  All           
 in all they have been treated quite poorly as family members, in              
 that they did not hear anything at all from the Department of                 
 Defense for over 20 years in regard to this incident.  The                    
 treatment they received and the information they were provided is             
 less than adequate for her family to feel assured within their own            
 hearts and minds that he has passed on.  They honestly felt that              
 their family was the exception when it first came up.  She did not            
 really dispel what the government was claiming to be true at first.           
 When they met with a number of other families for the first time,             
 they found they were just a part of the rule, that they were no               
 exception, that it was not just them, but it was family after                 
 family after family that had been provided this contrary                      
 REPRESENTATIVE JOE GREEN asked Ms. Gourley if she had been lied to            
 by the federal government, or by other countries.                             
 MS. GOURLEY answered that she had been lied to by the federal                 
 LEONARD EFTA, an ex-Government Issue (GI), testified via                      
 teleconference from Kenai.  The question that there may be MIAs               
 still living is a little bit more than he can stomach.  He is very            
 glad to see this bill being introduced and hopes it will be                   
 pursued.  He would like to see this issue finished once and for               
 REPRESENTATIVE CYNTHIA TOOHEY asked if there was an investigation             
 conducted about three years ago by the Bush Administration.                   
 MR. EFTA was not sure.                                                        
 MS. GOURLEY answered that there were the Murkowski hearings in                
 1986, in addition to the one that was held three years ago.                   
 REPRESENTATIVE TOOHEY asked if Ms. Gourley knew the results of                
 MS. GOURLEY said that the Murkowski hearings went up in the air               
 with the Challenger disaster.  It was dropped in a pool of water.             
 The one point they could all agree on is that the United States did           
 leave live prisoners of war behind and that their fate is unknown.            
 That was the only undisputed point, however, no action has been               
 taken to pursue that issue.                                                   
 SUSAN ROSS testified via teleconference.  Her father served in                
 World War II, and her brother served in the Vietnam War.  Neither             
 of them became an MIA or a POW, but she has two sons that would be            
 draft age right now, should the draft be reinstated.  Her concern             
 as a patriot is the cynicism on the part of our citizens regarding            
 the treatment of veterans.  This is relative to the cutback of                
 deficits, the experimentation conducted on military personnel which           
 has come to light in the media, and the apparent abandonment of               
 servicemen in various campaigns.  She felt that getting behind a              
 bill like this would certainly put back a lot of confidence in the            
 minds and hearts of the people, not only those who have served, but           
 people such as her sons who might be called upon.  Those people               
 would certainly think twice about whether or not to serve their               
 country when the payoff they will receive is to be abandoned to a             
 hostile country by the people who were chosen to protect them as              
 they were protecting our rights.  She fully supports this bill.               
 GARY TYNDALL testified via teleconference from Fairbanks.  He is in           
 favor of HJR 9.  Similar Resolutions have been passed in 37 states            
 so far.  This one is appropriate for Alaska because of our very               
 large veteran population, because we have a number of POW and MIA             
 family members in Alaska, and because of the high value that we as            
 Alaskans place on freedom.  In 1973, near the close of the war,               
 there were peace talks in which our United States government asked            
 for the return of over 3700 POWs/MIAs by name.  These were not                
 deserters, nor people who just vanished, but they were known or               
 suspected to be in the enemy hands.  We only got back 591.  Three             
 weeks later, the rest of these (over 3100), who we had reason to              
 believe were alive, were declared officially dead.  They were                 
 written off and abandoned.  There was no explanation for this                 
 conclusion or as to why their status had changed.  Now, even more             
 than 22 years later, a report was filed that had never even been              
 opened.  These people were just simply abandoned.  In the last                
 couple of years, some elements of the government have admitted that           
 some Americans were left behind alive.  We have proven electronic             
 and photo intelligence to that effect.  They had defector                     
 debriefings in both the Asian and Eastern European countries.                 
 There have been live sightings by refugees, by Europeans working in           
 Southeast Asia.                                                               
 MR. TYNDALL explained there are also those Vietnamese that know a             
 lot more than they admit.  For instance, they selectively                     
 segregated prisoners, and kept detailed records of captures,                  
 losses, and shoot-downs.  They even went so far as to early                   
 excavate grave sites immediately after the event in order to store            
 American remains.  It is an old practice to use prisoners and                 
 remains as bargaining chips, as they did a long time ago with the             
 French.  The records show pretty clearly that prisoners can survive           
 for many years in captivity.  For example, just a couple of years             
 ago, the Soviets released a bunch of Japanese World War II                    
 prisoners.  Just last year we had the testimony of our own long               
 term POWs that were returned in 1973.  I think all the evidence               
 should be examined before declaring a missing prisoner dead.  This            
 should be established for our own country's future.  The families             
 have a right to examine this evidence.  It is still locked up after           
 20 or more years.  Some of it has even been shredded when asked for           
 by investigators or Senate committees.  This Resolution has the               
 effect of Alaska's willingness to join with other states in                   
 petitioning to reaffirm these basic American rights.  He encouraged           
 the Judiciary Committee's unanimous endorsement.                              
 REPRESENTATIVE TOOHEY made a motion to adopt the committee                    
 substitute version of the Resolution, which clarifies a section on            
 page 3, lines 10 - 14, but does not alter the substance.  Seeing no           
 objection, CSHJR 9, Version K, was adopted.                                   
 Number 350                                                                    
 REPRESENTATIVE TOOHEY made a motion to move CSHJR 9(JUD), Version             
 K, out of committee with individual recommendations and zero fiscal           
 notes.  Seeing no objection, it was so ordered.                               
 CSHB 201 - PRISONER LITIGATION & APPEALS                                    
 Number 360                                                                    
 CHAIRMAN PORTER announced that they would begin taking public                 
 testimony on the committee substitute (CS) for HB 201.                        
 JIM MCCOMAS, president of Alaskans Against the Death Penalty,                 
 testified via teleconference.  He pointed out some ramifications of           
 HB 201 to the committee, in light of the tendency of two bills to             
 reenact capital punishment in Alaska.  The bottom line is that the            
 significant substantive reduction of the post conviction relief               
 that this bill would authorize would have disastrous consequences             
 if Alaska ever did reinstate capital punishment.  Claiming that               
 capital punishment is not the issue before us now is not an                   
 adequate response to this concern.  It is not an adequate response            
 because this committee does not know what the outcome is going to             
 be if the bill gets passed, and if we do not have the votes to stop           
 the death penalty next year.  We certainly do not have the votes to           
 enact an exception to the legislation that this bill proposes                 
 solely for purposes of capital punishment cases.                              
 MR. MCCOMAS said there is a tendency, when we look at bills, to               
 look at them in sort of a piecemeal fashion.  He did not feel that            
 committee members were looking at the consequences of the interplay           
 between this bill and the reenactment of the death penalty.  In               
 this century, there have been at least 1,300 capital convictions              
 set aside, either on appeal or post-conviction relief.  The vast              
 majority of those were not on a direct appeal.  They almost always            
 occurred later at the federal level.  Of course a lot of that has             
 to do with the availability of counsel in the earlier part of the             
 MR. MCCOMAS stated the bottom line is that there are many                     
 substantial legal issues which can be raised and litigated that are           
 not noticed in the early stages of litigation, which may be missed            
 by the lawyers who are handling the cases.  The issue is life or              
 death to a possibly innocent person.  We cannot afford that kind of           
 slip in our system.  If we look at this specific proposal to                  
 curtail post-conviction relief, for example, on page 19, a claim              
 could not be brought for post-conviction relief if it was based on            
 the admission or exclusion of evidence at trial.  Many death                  
 sentences have been set aside because of errors in the admission or           
 exclusion of evidence at trial that were raised on post-conviction            
 MR. MCCOMAS noted, for example, there is a whole line of cases                
 dealing with the inadmissability of psychiatric witnesses for the             
 state.  These cases were undermined by statements obtained from the           
 accused during competency examinations.  This applied to many death           
 cases in post-conviction proceedings.  The fact that a defense                
 lawyer who tries the case makes mistakes, and an appellate lawyer             
 who writes an appeal does not perceive all of the issues in the               
 case, should not lead to the result that a person is put to death             
 in violation of the Constitution or laws of this state.  That is              
 the heart of the objection.  From a practical point of view, the              
 time limitation is totally unrealistic.  The idea is that within              
 one year of a final appeal you ought to be able to find an attorney           
 and/or file.  People call every week trying to find lawyers who               
 will look into ineffectiveness questions concerning their trial               
 counsel.  These are cases that have occurred years and years ago.             
 There are many lawyers who refuse to get involved in such cases               
 because they do not want to be found in the position of making                
 charges against members of their own profession.                              
 MR. MCCOMAS pointed out that an additional exclusion is that if               
 there has been a previous post-conviction relief application, there           
 cannot be another one.  In these cases, people have been convicted            
 wrongfully, and this bill is preventing them from getting relief.             
 Lastly, he pointed out that the theme of this bill is "justice for            
 those who can afford it."                                                     
 REPRESENTATIVE FINKELSTEIN wanted Mr. McComas to understand the               
 problems we have in dealing with things like capital punishment,              
 which is not part of the law now.  He was not personally in support           
 of capital punishment but if that were to occur and if there were             
 actual changes in the way we treat these kinds of issues, then                
 prisoner litigation would be a factor at that time.  It is very               
 hard for us to pass laws under a number of contingencies.  He                 
 considers them in the context of what the current laws are.  We               
 certainly do not build laws around the death penalty.                         
 MR. MCCOMAS understood that, and stated the only point he was                 
 trying to make was that he looks at this session as two years, and            
 we know these death bills are going to be out next year.  He felt             
 it was valid for the legislature to think about the implications of           
 this right now, because if next year we lack the vote to invoke the           
 death penalty, he did not believe we would have the votes to create           
 an exception to a piece of legislation which had already passed.              
 CHAIRMAN PORTER commented that he did not know who "we" included,             
 when Mr. McComas stated that "We know these death bills are coming            
 next year."  He said to take him off the list of "we" because he              
 did not know that those bills were coming up.                                 
 MR. MCCOMAS answered that is the kind of thing he would love to be            
 proved wrong about.                                                           
 REPRESENTATIVE TOOHEY opposed the death penalty because of the cost           
 of it.  She doubted they would see a death penalty bill in the next           
 two or three sessions.                                                        
 Number 575                                                                    
 MARGI MOCK, Supervisor, Appellate Section, Alaska Public Defender             
 Agency, testified via teleconference.  She mentioned that appellate           
 defenders do not like filing frivolous cases.  The court of appeals           
 has said that she has to brief every issue filed even if she feels            
 it has no merit.  She felt this bill was legally flawed and was not           
 going to accomplish the purpose of cutting down on frivolous                  
 litigation.  It will create more work, and will not cut down on               
 court costs.  We all want to cut down on frivolous litigation, but            
 you cannot stop litigants from filing lawsuits.  She guessed you              
 could if you changed the Constitution, and you could also cut off             
 the hands of convicted people.  This bill significantly changes the           
 way post-conviction releases are handled.  Currently, applications            
 for post-conviction releases get filed with the court and then she            
 is appointed to represent the accused.  Her current clients, who              
 are inmates, call and request that she represent them, which she is           
 required to do.  She normally gets about five of those requests a             
 week.  Because she has been doing that for a long time with                   
 clients, she is usually able to dissuade them from filing frivolous           
 actions.  This particular bill skillfully shifts her initial                  
 responsibilities to the courts.  Under this bill, there is not                
 going to be an opportunity to try and dissuade an inmate from                 
 filing.  They have got to be given the opportunity to be heard by             
 someone, but filings are not going to go down, they will go up,               
 because she will lose that opportunity to deal with them first.               
 The judges will have to try to understand the applications, which             
 are written by inmates who are often unsophisticated, uneducated,             
 and sometimes functionally illiterate.  That takes time.  Once the            
 trial judge understands the application, he/she has to do the                 
 research and rule on it.  This is more expensive.  If you do not              
 believe her, take a look at the federal court which has adopted,              
 essentially, some form of assistance.  In the federal court, this             
 work is not done by judges, and state judges are not going to do it           
 either.  She would bet there would be a fiscal note asking that a             
 master be hired, like in the federal system, at $100,000, to do the           
 work.  It does not cut down on bureaucracy or agency costs.                   
 MS. MOCK said there is nothing in this bill that discourages post-            
 conviction relief.  The court of appeals has already decided in               
 (indisc.) v. State, which is a case from two years ago, that you            
 get appointed counsel for post-conviction relief.  So they are                
 going to get counsel because the court understands what the                   
 drafters of this bill cannot seem to grasp no matter how many times           
 you tell them.  That is that the appointment of counsel does not              
 encourage frivolous litigation.  You actually streamline the                  
 process by either discouraging an applicant from filing, or                   
 rewording the claim in a form that can be understood and acted on             
 by the court.  In fact, this bill has the potential for increasing            
 litigation because the real world experience is that inmates who              
 cannot get appointed counsel simply turn to jailhouse lawyers who             
 do not have any training at all and encourage ridiculous claims               
 with no regard for support of a legal authority or even a reliable            
 MS. MOCK said you are not going to want to hear this, but you have            
 to allow inmates one shot to modify their sentence for any reason,            
 including proof of affirmative rehabilitation.  This allowance has            
 to be afforded, because of those who are terminally ill that the              
 Department of Corrections does not have the money to pay for, or              
 for those persons who have demonstrated that they can be trusted in           
 the community.  This gives them hope.  There is considerably less             
 financial cost to the state in doing this.  It would be easier for            
 her to say to an inmate, "Sorry, I cannot help you, but if you wait           
 until you have done X-amount of your sentence and then you give me            
 all of the paperwork to show me what you have done in the jail to             
 rehabilitate yourself," she would simply turn that material into              
 the judge to decide.  That, as opposed to hours of drafting post-             
 conviction relief applications, which she is required to do for               
 people who have (indisc.).                                                    
 MS. MOCK felt the bill had a number of provisions that do not make            
 sense and will not get you anywhere if you pass them.  Section                
 09.19.017 requires initial judicial review of the merits of the               
 civil action before the court (indisc.).  You can expect an                   
 expensive fiscal note from the court on that.  It is going to be              
 time consuming and expensive.  This initial screening is required             
 by law in those cases in which an individual is unable to pay the             
 filing fee, so the distinction as to what claims undergo initial              
 review is based entirely on whether or not you have had a claim.              
 You do not have to have a law degree to see the problem with that.            
 This bill discriminates against two classes of people; one with               
 money and one without.  The law says in order to discriminate,                
 there has to be a connection between the purpose of the litigation            
 and the law, and there is no connection.  Lawyers file as many                
 frivolous lawsuits as people without lawyers.  All of us know it is           
 not rational to decide that a branch of government is dependent               
 upon the size of a person's pocketbook.                                       
 MS. MOCK stated that regarding AS 09.19.019, there is another                 
 problem.  That says if you do not have any money, and you move                
 through the trial court, then the appellate court sends it back to            
 the trial court to decide whether you have merit for appeal.  The             
 judges are going to have a large fiscal note on that, because they            
 are going to have to write a decision.  In addition, the average              
 person can tell you that there are obvious problems with requiring            
 that poor people not be allowed to appeal until the very judge that           
 has decided the case against them has decided on the merits of the            
 MS. MOCK referred to her personal favorite, AS 09.19.030 which                
 simply states that courts cannot order legal injunctions.  That is            
 not a particularly novel concept.  The point is that this bill is             
 "look good" legislation, but it will not stand up to judicial                 
 scrutiny.  Certain parts do not mean anything, and other parts are            
 just not going to cut down on litigation.  She said they have to              
 create a safety valve and this is not going to do it.                         
 Number 720                                                                    
 CHAIRMAN PORTER said sometimes we receive unclear, ambiguous                  
 testimony, but we never have that problem when talking to Margi.              
 There is a bill dealing with terminally ill inmates, but there is             
 not one regarding limb-severing.                                              
 REPRESENTATIVE TOOHEY asked how much the filing fee is.                       
 LAURIE OTTO, Deputy Attorney General, Criminal Division, Department           
 of Law, stated that she did not support the bill that Jim McComas             
 and Margi Mock were talking about, and she does not believe this              
 bill does the things they were talking about.  In answer to                   
 Representative Toohey's question, the filing fee for civil cases is           
 $100, and this bill would require indigent prisoners to pay 20                
 percent of the average monthly balance of their inmate account,               
 over a six month period.  If they had an average monthly balance of           
 $5 over a six month period, they would have to pay a $1 filing fee.           
 If they had a $100 balance, they would have to pay a $20 filing               
 MS. OTTO stated there were some pretty important issues raised                
 which need to be discussed.  Margi Mock's issue about equal                   
 protection and payment of filing fees is exactly right on.  It was            
 raised during the last committee hearing, and that problem was                
 fixed in the proposed CS that is before you now.  Likewise, the               
 proposed CS addressed Representative Finkelstein's concern about              
 having to show due diligence twice under certain circumstances.  We           
 have taken out the language that he was concerned about.                      
 MS. OTTO explained that in regards to the testimony given by Mr.              
 McComas, she has a hard time addressing the death penalty because             
 we do not have the death penalty right now, and therefore cannot              
 accommodate it in this legislation even if we wanted to.  She                 
 personally does not support the death penalty.  Based on her                  
 experience with juries, it is not equitably applied, and therefore            
 she feels it would be wrong for the state to adopt it, cost or no             
 cost.  She knows that the Governor shares that view; however, this            
 bill does not deal with death penalty cases.                                  
 MS. OTTO described the three components of the bill.  One deals               
 with civil cases.  Most of the comments you heard from both Mr.               
 McComas and Ms. Mock did not address the civil litigation part of             
 the bill.  The next component deals with increasing the time limit            
 that is imposed on people before you can file a sentence appeal.              
 The third component deals with post-conviction relief actions.                
 Just to put this into context, not all of them are familiar with              
 the criminal justice system.  There are a whole series of screening           
 mechanisms where cases get weeded out of the system.  Cases are               
 referred to the District Attorney (DA)'s office for initial review.           
 The DA then screens them and decides which cases to file.  Many               
 cases get washed out at that point.  The case then goes to the                
 grand jury who can also wash out cases.  The case then goes to the            
 trial court, who also decides whether or not it should proceed.               
 Then if the case goes to trial, the jury reviews it.  Then there is           
 a direct appeal in the court of appeals, and potentially the                  
 Supreme Court reviews it.  Then you can go back and file a post-              
 conviction relief action that starts again in the trial court, then           
 it goes to the appellate court, then to the Supreme Court.  What              
 this bill says is that at that point, unless there are exceptional            
 circumstances that are spelled out in the bill, you do not get any            
 more post-conviction relief actions in state court.  You can still            
 go to the federal court system, but you cannot continue to litigate           
 and appeal over and over and over again.  There has to be finality            
 at some point.  Many judges in this state interpret the current               
 rule 35.1(h) that way, which says that you should be filing all of            
 your appeals at one time.  We are trying to promote finality in               
 judgment.  Since some judges do not interpret it that way, we are             
 trying to promote uniform application of the rules and say unless             
 something extraordinary happens, you only get one second round of             
 appeals, it is not even the first round of appeals.  That would not           
 take away rights from people, even if we did have the death                   
 penalty.  Even if they did have the death penalty imposed on them,            
 they can still challenge their conviction on direct appeal, and               
 they still get to go back to the trial courts and appellate courts,           
 and then if they are not happy they can go to the federal court               
 system where there is extensive death penalty litigation.                     
 MS. OTTO disagrees on substantive grounds that it is bad to say               
 that at some point you should not be able to appeal over and over             
 and over and over again, that you have to put your issues together            
 in one appeal.  It is appropriate to say that if you are going to             
 file a post-conviction relief action, which again is a second round           
 of appeals to begin with, that you have to do it within two years             
 of the date of the conviction or within one year of the date that             
 your appeal was decided.  The problem with extending this, and Mr.            
 McComas is correct, is that there are people with 1979 convictions            
 who are coming in this year and filing motions for post-conviction            
 relief.  If they prevail on some kind of technical legal issue that           
 results in their conviction being overturned, where are the state's           
 witnesses?  Where are the witnesses who were available during the             
 trial to testify about what occurred and why they were guilty and             
 why they injured the victim?  In all of these cases, you have to              
 balance the rights of the defendant against the rights of the                 
 victim and the rights of society.  We are trying to do that                   
 balancing act in a fair way, which would still give people access             
 to the courts, still give them the second round of appeals in post-           
 conviction relief actions, but put some realistic time limits on              
 it, so that if there is a problem, we are then able to re-litigate            
 it.  If, in fact, somebody has evidence showing that they were                
 innocent, that would be procedures for hearing it under the                   
 provisions of the bill.                                                       
 MS. OTTO mentioned that Mr. McComas said the theme of the bill is             
 "justice for those who can afford it," and that those who cannot              
 afford it live in prison, while those who can afford it, get out of           
 jail.  Again, if that is what the bill did, she would not be here             
 supporting it, because that is just repugnant.  We should not have            
 a criminal justice system that is designed around giving advantages           
 to people who have money, and taking it away from those who do not.           
 This equal rights issue came up last time we heard the bill and               
 there was not a moment's hesitation in saying, "Yep, you are right.           
 That is wrong.  We should change it," and that has been done.  She            
 did not feel that analysis applied to the criminal sections of the            
 MS. OTTO mentioned that Marjorie Mock talked about how you have to            
 give people one motion to modify their sentence just so they can              
 let off steam.  The purpose of the criminal justice system is not             
 to allow people to let off steam, it is designed to be fair.  If              
 people think their sentence was not fair, they can appeal it.  If             
 they think it should be modified under this bill within 60 days of            
 the day it was imposed, they can ask to have the court modify it.             
 If they think they are serving time inappropriately after that,               
 they can ask the Governor to grant them executive clemency.  There            
 are safety valves in our system.                                              
 MS. OTTO addressed an issue brought up in a letter asserting that             
 the bill will have a particularly adverse affect on Native                    
 Alaskans.  Ms. Otto spent six years as both district attorney and             
 a private practitioner in Bethel.  She spent a lot of her time in             
 public service, trying to make things better for rural Alaska.                
 They have channelled resources towards rural areas in order to                
 improve the law to Natives, who have in many instances been on the            
 short end of the stick in regards to the criminal justice system.             
 She is very sensitive to those particular issues.  This bill does             
 not have an affect on Native Alaskans anymore than on non-Natives.            
 TAPE 95-43, SIDE B                                                            
 Number 000                                                                    
 MS. OTTO said it would affect non-Natives more so, because there              
 has not been a single non-English speaking Native Alaskan who has             
 filed a civil suit against the state.  Whether it is because                  
 Natives are not disciplinary problems in the jail, which is true,             
 or whether the culture is not as litigious as that of Western                 
 society.  It is just not an issue.  It is an emotional issue, but             
 not born out in fact.                                                         
 Number 150                                                                    
 There was a brief discussion about who can and who cannot, and                
 under what particular circumstances a public defender can be                  
 appointed.  The circumstances under which a public defender can be            
 appointed are in AS 18.85.100.                                                
 Number 220                                                                    
 MR. MCCOMAS argued that according to this bill, if you have had               
 your direct appeal, and you had the "second bite of the apple,"               
 that is, you filed the petition in the superior court, and you have           
 received a ruling from the judge finding that you are not being               
 held in violation of the laws or the Constitution of the State of             
 Alaska; if you can afford it, you can have counsel for your appeal.           
 If you are indigent, under this bill, you have to do that appeal              
 yourself.  What this really means is that it does not get done.  To           
 make it fair for everybody, you should modify this legislation to             
 say there are no appeals allowed.                                             
 MS. OTTO asked if Mr. McComas was talking about section (c)(2),               
 rather than (c)(1).                                                           
 MR. MCCOMAS said he was talking about (c)(2).                                 
 MS. OTTO felt he was making a good point and it may be good to                
 leave that section out.                                                       
 MR. MCCOMAS said there is another good point he would like to make.           
 Motions to reduce sentences under this legislation are gone.  Rule            
 35 (a) does not exist under this legislation.  He felt it would be            
 worthwhile to solicit the views of the Department of Corrections on           
 MS. OTTO stated that they have taken out the provision that allows            
 a sentence to be modified at any time if the circumstances have               
 changed.  They combined what is currently in 35 (a) with 35 (b).              
 This bill is intended to allow people to make a motion to reduce              
 their sentence for any reason within the 60-day period.                       
 REPRESENTATIVE TOOHEY made a motion to adopt CSHB 201(JUD), Version           
 G, dated 4/5/95 as a work draft.  Hearing no objection, the CS was            
 CHAIRMAN PORTER entertained a motion to amend the bill by removing            
 lines 10 and 11, calling it Amendment No. 1.                                  
 REPRESENTATIVE FINKELSTEIN made a motion to move Amendment No. 1.             
 Hearing no objection, it was so ordered.                                      
 CHAIRMAN PORTER stated there was another amendment offered,                   
 Amendment No. 2:                                                              
      Page 4, line 31, following "means":                                      
           Delete "an"                                                         
           Insert "a civil"                                                    
      Page 5, line 7:                                                          
           Delete "the"                                                        
           Insert "a"                                                          
      Page 8, line 23:                                                         
           Delete "new"                                                        
           Delete "in law"                                                     
 REPRESENTATIVE TOOHEY made a motion to move Amendment No. 2.                  
 Hearing no objection, it was so ordered.                                      
 REPRESENTATIVE TOOHEY made a motion to move CSHB 201 (JUD) as                 
 amended out of committee with individual recommendations and fiscal           
 notes as attached.  Hearing no objection, it was so ordered.                  
 HB 202 - JUVENILE DELINQUENCY PROCEEDINGS                                 
 Number 500                                                                    
 MS. OTTO, Deputy Attorney General, Criminal Division, Department of           
 Law, representing Governor Knowles, introduced HB 202.  When the              
 Governor first started looking at introducing crime legislation, he           
 asked that those involved in putting the legislation together,                
 including herself, talk to people who work in the system, such as             
 policemen, teachers, kids, parents, and people at McLaughlin, to              
 see what they felt would be most useful in dealing with the                   
 juvenile crime problem which is rising dramatically, particularly             
 in the urban areas of the state.  The single, most frequent comment           
 was that we need to get parents more involved.  Even if you cannot            
 get those feelings and emotions involved, just having the parents             
 participate in the process would be a big step forward.  When she             
 first started juvenile delinquency hearings in 1982, she was                  
 shocked when parents did not show up.  Under current law, parents             
 do not have to attend juvenile delinquency hearings for their                 
 children.  The most important thing this bill does is require                 
 parents to attend juvenile delinquency hearings, unless they can              
 show good cause for not participating.  The second problem people             
 identified was that in many instances the kids' problems are                  
 intricately tied to the problems of the family and the parents.  If           
 you can just get them into mediation or some kind of family                   
 counseling, you would have a much bigger impact on the child's                
 delinquency problems than anything you could do with the child                
 MS. OTTO said the second thing the bill does is in Section (2),               
 subsection (b).  That gives the court the discretion to order                 
 parents to participate in treatment with their children, and also             
 to become involved in monitoring the child's probation conditions             
 and to report those conditions to the court.  The payment for this            
 is set out in subsection (c) and the mechanism for recovery is set            
 out in Section 1 of the bill.  If the parents have available                  
 insurance or other resources, that has to be used to pay for the              
 treatment.  If they are indigent and cannot afford it, then the               
 Department of Health and Social Services would pay for the                    
 treatment, and the recovery would be taken from the parents'                  
 permanent fund dividend (PFD) checks.                                         
 MS. OTTO explained that the third thing the bill does is give the             
 court the discretion to order the minor's parent as well as the               
 minor to pay restitution.  We did modify this in the Health and               
 Social Services Committee to say that if the minor was a runaway              
 and had been reported missing, the parents would not be held                  
 responsible for restitution.                                                  
 MS. OTTO described the final thing the bill does.  Orders of                  
 restitution in juvenile cases can be enforced as civil judgments,             
 which is what happens in adult cases.  If you get an order of                 
 restitution made against you, the victim can file it with the court           
 and collect, using civil collection procedures, but in juvenile               
 cases, the order of restitution disappears when the child leaves              
 the jurisdiction of the juvenile court.  It would allow the                   
 restitution award to actually be recoverable, where in many cases             
 right now, it is not recoverable.                                             
 REPRESENTATIVE FINKELSTEIN asked if the provision applying to a               
 child who is a runaway applies to all provisions, such as treatment           
 costs, or just to restitution.                                                
 MS. OTTO answered that it only applies to the restitution award.              
 Even if the child is a runaway, we would like the parents to be               
 attending the juvenile delinquency hearings, and to become involved           
 in treatment.  We think that is very important, but we do not want            
 to force the parents to pay money judgments if they have no ability           
 to control their child's behavior because the child was a runaway.            
 The idea is to intervene before these juveniles become adults and             
 adult criminals.                                                              
 Number 650                                                                    
 CHAIRMAN PORTER added that this would cause the parents to be                 
 responsible, without making the level of responsibility too hard to           
 meet if for whatever reason, your child is a runaway.                         
 REPRESENTATIVE FINKELSTEIN asked if someone from the Department of            
 Health and Social Services could address their general philosophy             
 on this.                                                                      
 DIANE WORLEY, Director, Division of Family and Youth Services                 
 (DFYS), Department of Health and Services, stated that the division           
 supports this bill.  The philosophy that the division operates from           
 is that we are looking to provide family centered services.  As we            
 work with families and children, we need to include all family                
 members in dealing with the problems and in looking for solutions             
 to these problems, and towards getting to the point where the                 
 family is able to deal with it, and to be in a healthy position.              
 With that in mind, having parents involved with their children, and           
 to help be responsible for the actions of their children, moves us            
 towards this end.  We cannot work just with the child and pull the            
 child out of the family setting, and try to make a change either in           
 treatment or in their restitution, if they are then going back into           
 the same setting where nothing else has changed.  She was not                 
 implying that all of the children's actions are directly related to           
 how the parents have dealt with that child in the past, but it is             
 an environmental issue as well, that we come from environments, and           
 certain things are a part of that.                                            
 MS. WORLEY has only worked at DFYS for a short time and prior to              
 that time, she did work in the direct service field.  Working                 
 closely with the whole family, having the parents involved, makes             
 a tremendous amount of difference.  There are also a lot of parents           
 out there who will call a service provider and say, "I would like             
 an appointment for my child.  Please fix him/her."  We would say we           
 would be glad to help, but that we need everyone involved in order            
 to work on the situation.  It is not an isolated situation in most            
 REPRESENTATIVE DAVIS made a motion to move CSHB 202(HES) out of               
 committee with individual recommendations and attached fiscal                 
 Hearing no objection, it was so ordered.                                      
 Number 710                                                                    
 REPRESENTATIVE PETE KELLY, sponsor of HB 130, introduced the bill.            
 HB 130 has gone through many changes, and if you were in State                
 Affairs Committee, you will hardly recognize this bill.  We started           
 out with a very large bill attempting to change the Administrative            
 Procedures Act.  Through working with the Administration,                     
 particularly Deborah Behr from the Department of Law, we have found           
 ways to lighten it up, and work within the existing Administrative            
 Procedures Act to bring about regulation reform without such a                
 major rewrite of the bill.                                                    
 REPRESENTATIVE GREEN moved to adopt Version H of CSHB 130 as the              
 working draft.  Hearing no objection, it was so ordered.                      
 REPRESENTATIVE KELLY explained particular sections.  Section 1                
 makes sure that the existing Regulation Review Committee can review           
 proposed regulations, not just final regulations.  That has been a            
 problem.  This section also brings the Regulation Review Committee            
 into the loop of the regulations writing process so that the                  
 legislative intent of the statutes that prompted the regulations              
 can be given more attention.                                                  
 REPRESENTATIVE KELLY said Section 3 lists some of the reasons the             
 Governor can return regulations to the agencies before they are               
 filed.  Section 3 also gives the Governor the power to do this.               
 Even though he currently has the power, it is not in statute at               
 all, that the Governor can either delegate the authority to review            
 and return regulations, or to do so himself.  One of the reasons              
 the Governor can return regulations to agencies is if the                     
 regulations are inconsistent with faithful execution of the laws.             
 The second reason is to give agencies a chance to address the                 
 current concerns of the legislature, so the legislature has been              
 brought into the loop before a regulation has been finalized, and             
 they have made comments on the regulation before the Governor                 
 returns it to the agency.  A 30-day public testimony window exists            
 when the legislature is somehow left out of that loop or cannot               
 participate in that process; now they have the opportunity to get             
 into the process.                                                             
 REPRESENTATIVE KELLY described Section 4.  The Regulation Review              
 Committee will receive a copy of proposed regulations.  Currently             
 they just receive a notice and a summary of regulations.  The                 
 effects of Sections 1 - 4 are not revolutionary in regulation                 
 reform, but the intent is to stop that old problem where the                  
 Administration says they are just carrying out the intent of the              
 legislature, and the legislature says that the Administration has             
 ruined a perfectly good statute by writing a bad regulation on it.            
 REPRESENTATIVE KELLY explained that Section 5 strengthens the                 
 public hearing requirement.  It requires the agencies to pay                  
 particular attention to factual and substantive comment.  One                 
 problem with public testimony meetings is that they are often                 
 overwhelmed with expressive opinions, and the agencies are not                
 required to respond to any testimony.  Section 5 directs them to              
 respond to public comments.  Later on we will require them to keep            
 track of the written comments and how it was used or not used in              
 designing the regulations that come out of that public testimony.             
 We will also require the agencies to focus on costs of regulations            
 to private enterprise.  There have been problems with the fiscal              
 notes attached regarding the cost of compliance for regulations.              
 This is weaker language, but it seems that the only way to get rid            
 of that $500,000 fiscal note, is to put it into statute and direct            
 them to pay attention to cost.                                                
 REPRESENTATIVE KELLY explained that Section 6 is a new section                
 which requires agencies to record substantive comment they receive            
 in the comment portion of the meetings.  This will make sure that             
 they are in tune to the people who are ultimately affected by these           
 regulations, through creating a valuable paper trail.                         
 REPRESENTATIVE KELLY explained that Section 10 would put some teeth           
 into the bill, but he would agree to go along with the Department             
 of Law and the Department of Environmental Conservation (DEC),                
 deleting Section 10, and try to figure out a way to put some teeth            
 into the cost of compliance.  Representative Green had raised some            
 questions in the State Affairs Committee about economic                       
 feasibility.  Section 10 deals with economic feasibility, but since           
 we would like to delete Section 10, we will come up with something            
 else to address the issue of economic feasibility.  In summary, HB
 130 codifies how the legislature and the Administration deal with             
 regulations so that both are held responsible.  We have required              
 agencies to compile a lot more information than they have done                
 before, so they can provide this to the legislature.  The result              
 will be that the Administration will have ultimate responsibility,            
 and both the Administration and the legislature, who are elected              
 officials, will now be held responsible for regulations.  The other           
 result will be that the agencies will be held accountable for                 
 paying strict attention to cost.                                              
 Number 860                                                                    
 REPRESENTATIVE GREEN asked if the questions raised in the State               
 Affairs Committee, ranging from constitutionality to inviting                 
 litigation, were taken into consideration in Version H.                       
 REPRESENTATIVE KELLY answered they absolutely were.  This version             
 was the result of many hours of work with the Department of                   
 Administration to come to some kind of agreement where we are not             
 crossing constitutional lines, and yet we can still provide                   
 regulation reform.                                                            
 REPRESENTATIVE GREEN expressed concerns about the delegation of               
 authority to the Lieutenant Governor, who has merely a ministerial            
 role, rather than a policy making decision role.  Does the                    
 delegation of authority that is included in this version pass with            
 that, or is that still a valid concern, that the role of the Lt.              
 Governor is ministerial?                                                      
 REPRESENTATIVE KELLY answered that it is not the intent of this               
 legislation to pass the authority to the Lt. Governor, which is               
 done at the will of the Governor, so the Governor can or cannot               
 pass the authority on.  It is his or her responsibility to do so.             
 That is how we address the constitutionality of it.  No one is                
 requiring him to do that, but he may.                                         
 Number 875                                                                    
 REPRESENTATIVE GREEN said Representative Kelly would like Section             
 10 removed, and the questions brought up in State Affairs about               
 that will be addressed later.  Does this mean later on in this bill           
 when it goes to Finance, or in a different bill?                              
 REPRESENTATIVE KELLY said he was committed to deal with that by the           
 time it gets to Finance.                                                      
 TAPE 95-44, SIDE A                                                            
 Number 000                                                                    
 REPRESENTATIVE KELLY continued, stating that he had spoken with Len           
 Verrelli from DEC, since they needed a little time to work on it,             
 so he committed to Mr. Verrelli that he would just pull it from               
 this draft and then reintroduce it by the time it gets to Finance,            
 if it should pass from this committee.  Then hopefully it will be             
 a new and improved bill, or possibly not.  It may just be one of              
 those things that crosses constitutional lines or just does not               
 make sense, but we will certainly explore that within the next week           
 or two.                                                                       
 REPRESENTATIVE DAVIS asked Representative Kelly if he was proposing           
 to eliminate Sections 5 and 10.                                               
 REPRESENTATIVE KELLY clarified that he only intended to eliminate             
 Section 10.  The reference he had made to Section 5, is to                    
 determine the cost of compliance for regulations which has been               
 producing large fiscal notes.  The attempt in this draft was to               
 give the departments a little more latitude when addressing costs             
 so they would not have so many fiscal notes.  However, Section 10             
 essentially says that DEC or any other agency cannot outlaw a                 
 lawful endeavor by making the cost of carrying out that endeavor so           
 high, that in dealing with the regulations, they have essentially             
 outlawed that endeavor.  There were some problems with placer                 
 mining.  The costs were so high, in dealing with the regulations,             
 that the DEC has essentially outlawed that endeavor.  Placer mining           
 was essentially outlawed by regulation, because of the absurd water           
 quality standards.  We were trying to deal with that in Section 10.           
 All we really wanted to deal with in Section 5 was these wild                 
 regulations that do not happen very often, but they do happen                 
 sometimes, and we wanted to deal with those in Section 10, by just            
 taking, not just the cost of compliance, which was addressed in               
 Section 5, but by taking it, and addressing in this draft the level           
 of the absurd water quality standards up to the tenth power, when             
 dealing with parts per million, and per billion and quadrillion.              
 We are going to try to deal with the department to resolve that               
 CHAIRMAN PORTER said that the first version of Section 5 required             
 departments to determine the cost of compliance, which led to                 
 substantial fiscal notes.  Now we are just asking that they at                
 least look at it and give it some consideration.                              
 REPRESENTATIVE DAVIS made a motion to remove Section 10, which is             
 page 5, lines 13 - 23.                                                        
 REPRESENTATIVE FINKELSTEIN asked if the public testimony was                  
 CHAIRMAN PORTER asked if there were any others wishing to testify             
 on HB 130.  He announced the amendment would be held in abeyance              
 DEBORAH BEHR, Regulations Attorney, Department of Law, said she has           
 worked very closely with the sponsor on this bill, and she is quite           
 pleased with the language changes.  She offered her assistance in             
 working further on any parts of the bill.  She explained that in              
 Section 3, the sponsor is correct to say the Governor has the                 
 authority to delegate authority.  All this does is put something in           
 statute that he already has the authority to do.  On page 2, line             
 7, where we are excluding regulatory boards and commissions, that             
 was done at her suggestion because of the problem of changing the             
 relationship of boards that are independent, such as the State                
 Board of Education, with the Governor.  The sponsor indicated they            
 did not want to change that relationship.                                     
 MS. BEHR explained that the words "regulatory boards and                      
 commissions", are (indisc.) Constitution.  We really should be                
 using phrases like "boards and commissions that have the authority            
 to adopt regulations."  She has had several boards call her asking            
 if they are in or out.  She spoke with the sponsor and the                    
 sponsor's staff, and their goal was to not change the relationship            
 of any of the regulatory boards.  That will clear it up.  She                 
 wanted to take out "regulatory" and put in "except for boards and             
 commissions that are authorized by law to adopt regulations."  You            
 would be doing that on page 2, line 7, and on page 4, line 3.  She            
 felt that would be consistent with what the sponsor and the                   
 sponsor's staff were talking about.                                           
 MS. BEHR also talked about page 3, lines 28, 29 and 30.  We are               
 getting cost information from the people who know it best, the                
 regulated population.  She said it troubles her to see departments            
 and agencies trying to guess the cost of a private business.  We              
 cannot accurately do that.  It would be very hard for us to get               
 that information, and once we got the information, there would be             
 the argument that a competitor could get it, and it is just real              
 problematic.  She likes this solution where the regulated public              
 tells us what the problem is and we have an obligation to seriously           
 consider that.                                                                
 MS. BEHR explained page 4, line 4.  Right now, state agencies have            
 an obligation under the law to seriously consider public comments             
 they receive.  There is no obligation for them to write a report as           
 to whether they did or did not consider your comments.  Departments           
 work different ways.  For example, some departments have briefing             
 meetings with their commissioner, who makes the decision as to                
 whether the comments are in or out.  Other departments pull                   
 together a summary sheet of comments without being very specific on           
 who said what.  She was concerned that this may have a cost, but              
 maybe for public policy reasons it would be a cost you are willing            
 to bear.  The DEC is required to keep a detailed analysis on use of           
 public comments for many of their federal programs.                           
 MS. BEHR echoed the sponsor's suggestion to remove Section 10.  It            
 is new language, and she would be willing to work with the sponsor            
 to come up with some language that would work for him, and still              
 meet his intent.  She felt there was substantial improvement, in              
 the legal sense, from the previous version of the bill.  She was              
 willing to work with the committee and the sponsor on it.                     
 REPRESENTATIVE TOOHEY said she was thrilled and hoped that on page            
 3, lines 28, 29 and 30, that you would consider that.  We have                
 heard testimony that is against the regulation because it is                  
 unreasonable and causes the shutdown of small businesses.  Are you            
 really telling me that you were going to listen to that?                      
 MS. BEHR answered that each adopting agency, under the law, has an            
 obligation to seriously consider all comments, and if a regulatory            
 industry does not feel they are being treated fairly, they can test           
 it.  Most commissioners are very responsive to a lot of public                
 comments and also letters from legislators.                                   
 REPRESENTATIVE TOOHEY asked if there was any correlation between              
 the federal and state regulations, if this came down as a mandate             
 by the federal government, then their hands would be tied.  Is that           
 MS. BEHR answered that when something is a mandate for the federal            
 government, we, as a state, sometimes have a decision whether or              
 not we want to participate in the program.  That is fine.  We do              
 not take the federal money, and we do not take the strings                    
 attached.  A lot of the federal laws are not designed for a small             
 state with small businesses and do not match well for Alaska.                 
 REPRESENTATIVE FINKELSTEIN asked about the change in the Lt.                  
 Governor's role.                                                              
 MS. BEHR answered that initially the way the bill was drafted, the            
 Lt. Governor could return regulations back to a state agency for              
 any reason.  She has concerns on two fronts.  One is that our                 
 Constitution puts the Governor at the head of the Executive Branch,           
 and so we could have the Governor and the cabinet all thinking that           
 regulation was very good for the state, and if the Lt. Governor               
 disagreed with that, he/she could send that back and thwart our               
 REPRESENTATIVE FINKELSTEIN asked what the change was here in the              
 Lt. Governor's powers.  He asked if she was just referring to a               
 previous version of the bill.  It was confusing as to whether or              
 not the bill itself would change the powers of the Lt. Governor.              
 MS. BEHR said the changes she was talking about were just from the            
 previous version.                                                             
 REPRESENTATIVE FINKELSTEIN mentioned he had not seen the previous             
 version, that is where he had gotten lost.  He said apparently some           
 regulations go to the Governor, and some do not.                              
 MS. BEHR said that in practice now, when there is a regulation                
 project that is controversial, they will discuss it with the                  
 Governor at a cabinet meeting.  He may set up mini-cabinets between           
 the various departments affected, and she does not see very many              
 regulations going back under this section.  The policy will be set            
 up-front, as it is now.  As for enabling the agencies to respond to           
 specific issues raised by the Regulation Review Committee, she                
 hoped the Regulation Review Committee would be right there in the             
 beginning telling us what the problems were.                                  
 REPRESENTATIVE FINKELSTEIN asked if someone can file an appeal,               
 saying the regulation cannot go into effect because the public                
 process was not followed properly, or because it was not reviewed             
 by the Governor.                                                              
 MS. BEHR was concerned about this record section.  She could see              
 somebody challenging an environmental regulation because an agency            
 did not keep an adequate record, and under the Administrative                 
 Procedures Act, you can get an injunction and set it aside if there           
 is not an adequate record.  But the court right now requires that             
 there be somewhere in the state agencies, some documentation of               
 their decision making.  This is going to formalize it more.  That             
 is a public policy call whether or not you believe the benefits               
 from formalizing this in a record are worth the potential that a              
 regulation could be set aside.                                                
 JOHN LINDBACK, Chief of Staff for Lieutenant Governor Ulmer,                  
 thanked the staff for working closely with the Administration on              
 this bill.  The draft committee substitute incorporates a number of           
 the changes suggested by the Administration so far.  The                      
 Administration is very interested in regulatory reform, and is                
 encouraging all of the bill sponsors on bills dealing with                    
 regulations to pursue a consensus approach, and work with the                 
 Administration during the interim on a comprehensive approach to              
 regulatory reform.  In regards specifically to HB 130, the                    
 Administration is neutral on the bill.  With regards to the major             
 focus of the bill, we must at least ask the question about the                
 necessity of it.  The Governor right now can stop regulations if he           
 wants to.  All it takes is a phone call or a conversation with the            
 appropriate commissioner.  This bill adds one more step to the                
 regulatory process.  After the department is done, it must go back            
 to the Governor's office, or to the Lt. Governor's office, if it is           
 delegated in that direction, for one more review.  That is not                
 necessarily bad; we only question whether or not it is necessary              
 since the Governor is at the front end of this process and can stop           
 regulations any time he wants to.  He said the original version of            
 the bill would require one new position that would be responsible             
 for reviewing regulations.  The Governor's office would need to               
 look at this committee substitute version of the bill to determine            
 whether or not they would still need such a position.                         
 Number 425                                                                    
 REPRESENTATIVE GREEN said there is a significant outcry from the              
 public that we are being strangled by regulations.  If the Governor           
 was amenable to do something, you would think that process would              
 have already started, and he did not see that happening.  That                
 seems to be the reason for the bill, either to light the fire, or             
 to make it happen.                                                            
 PAM NEAL, President, Alaska State Chamber of Commerce, said they              
 were very supportive of CSHB 130.  They have been working with the            
 sponsor and following this legislation from conception to the                 
 present form.  It essentially addresses the concerns of the                   
 business community of the state.  Too often our comments and our              
 involvement in the regulatory process seem to fall upon deaf ears.            
 We never see the results of any comments we have made, and feel               
 this bill would help that.  We have also had trouble figuring out             
 where to point the finger if things are not going well.  Where do             
 you go to make it happen, to make sure you are at least heard?  We            
 feel this would open up the process and provide some                          
 accountability.  We are very supportive of this piece of                      
 CHAIRMAN PORTER entertained the motion to the change on pages 2 and           
 4, as suggested by the Department of Law, and call it Amendment No.           
 1.  This will be on page 2, line 7, and on page 4, line 3, to                 
 delete the word "regulatory", and then after the term "boards and             
 commissions", add "or authorize by law to adopt regulations".                 
 REPRESENTATIVE TOOHEY made a motion to move amendment No. 1, as               
 described.  Seeing no objection, it was so ordered.                           
 REPRESENTATIVE TOOHEY made a motion to move Amendment No. 2,                  
 deleting on page 5, Section 10, lines 13 - 23.  Seeing no                     
 objection, Amendment No. 2 passed.                                            
 REPRESENTATIVE TOOHEY made a motion to move CSHB 130(JUD), version            
 H out of committee with individual recommendations and attached               
 fiscal notes.  Seeing no objection, it was so ordered.                        
 The House Judiciary Committee adjourned at 3:25 p.m.                          

Document Name Date/Time Subjects