Legislature(1995 - 1996)
04/10/1995 01:18 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 None 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 regulations." 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, JAMES 03/29/95 974 (H) INDETERMINATE FISCAL NOTE (LAW) 3/22/95 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) 2/27/95 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 SHORT TITLE: JUVENILE DELINQUENCY PROCEEDINGS 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 SHORT TITLE: REGULATION ADOPTION PROCEDURES & REVIEW 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) 3/20/95 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 information. 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 government. 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 all. 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 those. 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 century. 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 relief. 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 (indisc.). 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 appeal. 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 fee. 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 bill. 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 this. 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 adopted. 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 alone. 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 cases. REPRESENTATIVE DAVIS made a motion to move CSHB 202(HES) out of committee with individual recommendations and attached fiscal notes. Hearing no objection, it was so ordered. HB 130 - REGULATION ADOPTION PROCEDURES AND REVIEW 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 problem. 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 completed. CHAIRMAN PORTER asked if there were any others wishing to testify on HB 130. He announced the amendment would be held in abeyance momentarily. 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 correct? 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 Constitution. 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 legislation. 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. ADJOURNMENT The House Judiciary Committee adjourned at 3:25 p.m.