Legislature(1995 - 1996)

04/12/1995 01:17 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                         April 12, 1995                                        
                           1:17 p.m.                                           
 MEMBERS PRESENT                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Al Vezey                                                       
 Representative Bettye Davis                                                   
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
 MEMBERS ABSENT                                                                
 COMMITTEE CALENDAR                                                            
 * HB 255:  "An Act creating the crime of negligent vehicular                  
            HEARD AND HELD                                                     
 HJR 30:    Relating to an amendment to the Constitution of the                
            United States prohibiting federal courts from ordering             
            a state or a political subdivision of a state to                   
            increase or impose taxes."                                         
            PASSED OUT OF COMMITTEE                                            
 HB 2:      "An Act allowing courts to require certain offenders as            
            a special condition of probation to complete a boot camp           
            program provided by the Department of Corrections;                 
            making prisoners who complete the boot camp program                
            eligible for discretionary parole; providing for                   
            incarceration of certain nonviolent offenders in boot              
            camps operated by the Department of Corrections;                   
            allowing the Department of Corrections to contract with            
            a person for an alternative boot camp program; creating            
            the Boot Camp Advisory Board in the Department of                  
            Corrections; and providing for an effective date."                 
            PASSED OUT OF COMMITTEE                                            
 HB 274:    "An Act relating to the state's tuberculosis control               
            program; and providing for an effective date."                     
            PASSED OUT OF COMMITTEE                                            
 (* First public hearing)                                                      
 WITNESS REGISTER                                                              
 REPRESENTATIVE SCOTT OGAN                                                     
 Alaska State Legislature                                                      
 State Capitol Building, Room 208                                              
 Juneau, AK  99801-1182                                                        
 Telephone:  (907) 465-2689                                                    
 POSITION STATEMENT:  Sponsor HB 255                                           
 MARK CAMPBELL                                                                 
 P.O. Box 3075                                                                 
 Palmer, AK  99645                                                             
 Telephone:  (907) 745-2256                                                    
 POSITION STATEMENT:  Testified in support of HB 255                           
 SCOTT RICHARDSON                                                              
 P.O. Box 2025                                                                 
 Palmer, AK  99645                                                             
 Telephone:  (907) 745-2256                                                    
 POSITION STATEMENT:  Testified in support of HB 255                           
 VALERIE LEMON                                                                 
 P.O. Box 870441                                                               
 Wasilla, AK  99687                                                            
 Telephone:  (907) 373-1441                                                    
 POSITION STATEMENT:  Testified in support of HB 255                           
 FLO LEMON                                                                     
 P.O. Box 870441                                                               
 Wasilla, AK  99687                                                            
 Telephone:  (907) 373-1441                                                    
 POSITION STATEMENT:  Testified in support of HB 255                           
 MARGOT KNUTH, Assistant Attorney General                                      
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK  99811-0300                                                        
 Telephone:  (907) 465-3428                                                    
 POSITION STATEMENT:  Testified against HB 255                                 
 REPRESENTATIVE ED WILLIS                                                      
 Alaska State Legislature                                                      
 State Capitol Building, Room  400                                             
 Juneau, AK  99801-1182                                                        
 Telephone:  (907) 465-2199                                                    
 POSITION STATEMENT:  Bill Sponsor HB 2                                        
 JERRY SHRINER, Special Assistant                                              
   to the Commissioner                                                         
 Department of Corrections                                                     
 240 Main Street, Suite 700                                                    
 Juneau, AK  99801                                                             
 Telephone:  (907) 465-4640                                                    
 POSITION STATEMENT:  Spoke in favor of HB 2                                   
 DR. PETER NAKAMURA, Director                                                  
 Division of Public Health                                                     
 Department of Health and Social Services                                      
 P.O. Box 110610                                                               
 Juneau, AK  99811-0610                                                        
 Telephone:  (907) 465-3090                                                    
 POSITION STATEMENT:  Spoke in favor of House Bill 274                         
 KRISTEN BOMENGEN, Assistant Attorney General                                  
 Attorney General's Office                                                     
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK  99811-0300                                                        
 POSITION STATEMENT:  Spoke in favor of House Bill 274                         
 PREVIOUS ACTION                                                               
 BILL:  HB 255                                                               
 SHORT TITLE: NEGLIGENT HOMICIDE BY AUTOMOBILE                                 
 SPONSOR(S): REPRESENTATIVE(S) OGAN,Kohring,Bunde                              
 JRN-DATE     JRN-PG               ACTION                                      
 03/15/95       742    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 03/15/95       742    (H)   JUDICIARY, FINANCE                                
 04/05/95      1039    (H)   COSPONSOR(S): KOHRING, BUNDE                      
 04/12/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HJR 30                                                                
 SPONSOR(S): REPRESENTATIVE(S) VEZEY,Toohey                                    
 JRN-DATE      JRN-PG              ACTION                                      
 02/08/95       271    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/08/95       271    (H)   WTR, JUD                                          
 03/21/95              (H)   WTR AT 05:00 PM CAPITOL 203                       
 03/21/95              (H)   MINUTE(WTR)                                       
 03/22/95       848    (H)   WTR RPT  3DP 1NR                                  
 03/22/95       848    (H)   DP: MULDER, PHILLIPS, BARNES                      
 03/22/95       848    (H)   NR: KUBINA                                        
 03/22/95       848    (H)   ZERO FISCAL NOTE (H WTR)                          
 04/12/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB   2                                                                
 SPONSOR(S): REPRESENTATIVE(S) WILLIS,Rokeberg                                 
 JRN-DATE     JRN-PG               ACTION                                      
 01/06/95        20    (H)   PREFILE RELEASED                                  
 01/16/95        21    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        21    (H)   STA, JUD, FIN                                     
 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)                                       
 03/21/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 03/21/95              (H)   MINUTE(STA)                                       
 03/23/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 03/23/95              (H)   MINUTE(STA)                                       
 03/24/95       886    (H)   STA RPT  CS(STA) NEW TITLE 2DP 5NR                
 03/24/95       887    (H)   DP: ROBINSON, WILLIS                              
 03/24/95       887    (H)   NR: JAMES,PORTER,GREEN,IVAN,OGAN                  
 03/24/95       887    (H)   FISCAL NOTE (CORR)                                
 03/24/95       887    (H)   4 ZERO FNS (LAW,ADM,COURT,DPS)                    
 04/12/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB 274                                                                
 SHORT TITLE: TUBERCULOSIS CONTROL                                             
 SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                  
 JRN-DATE     JRN-PG               ACTION                                      
 03/22/95       852    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 03/22/95       853    (H)   HES, JUDICIARY                                    
 03/22/95       853    (H)   4 ZERO FNS (2-ADM, LAW, DHSS)                     
 03/22/95       853    (H)   GOVERNOR'S TRANSMITTAL LETTER                     
 03/28/95              (H)   HES AT 02:00 PM CAPITOL 106                       
 03/28/95              (H)   MINUTE(HES)                                       
 03/29/95       977    (H)   HES RPT 3DP 1NR 2AM                               
 03/29/95       977    (H)   DP: G.DAVIS, TOOHEY, VEZEY                        
 03/29/95       977    (H)   NR: BRICE                                         
 03/29/95       977    (H)   AM: ROKEBERG, ROBINSON                            
 03/29/95       977    (H)   4 ZERO FNS (2-ADM, LAW, DHSS)                     
 04/12/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 ACTION NARRATIVE                                                              
 TAPE 95-45, SIDE A                                                            
 Number 000                                                                    
 CHAIRMAN BRIAN PORTER called the House Judiciary Standing Committee           
 to order at 1:17 p.m. on Wednesday, April 12, 1995.  Members                  
 present were Representative Con Bunde, Representative Al Vezey and            
 Chairman Brian Porter.  The remaining committee members, Vice Chair           
 Joe Green, Representative Cynthia Toohey, Representative David                
 Finkelstein, and Representative Bettye Davis arrived to provide a             
 quorum.  Chairman Porter stated there were four bills for                     
 consideration on this date.  He asked Representative Ogan to                  
 introduce his bill, HB 255.                                                   
 HB 255 - NEGLIGENT HOMICIDE BY AUTOMOBILE                                   
 REPRESENTATIVE SCOTT OGAN, sponsor of HB 255, stated this bill is             
 an act that creates a crime of negligent vehicular homicide.  The             
 bill is designed to fill an existing gap in Alaska's criminal code.           
 Representative Ogan said, "Unfortunately, it has taken the several            
 lives to illustrate the need for this legislation."                           
 REPRESENTATIVE OGAN said that under current Alaska law a person who           
 commits a traffic infraction, such as passing in a no-passing zone,           
 or running a red light, and is not under the influence of some                
 drug, alcohol, or isn't acting in an extremely negligent way like             
 running red lights at a high rate of speed...at this point, if they           
 run a red light and kill someone, they get a traffic ticket.                  
 Representative Ogan said he didn't feel this was appropriate.  He             
 said his dad told him, when he was growing up, that when he got               
 behind the wheel of a car it was a 2-ton missile.  He stated that             
 a car is a potential deadly weapon and when there is a disregard              
 for traffic laws, and when it results in a death, he feels that               
 something more than a $50 fine, or a minimal slap on the wrist, is            
 more appropriate.  Representative Ogan asked for any questions the            
 committee might have.                                                         
 CHAIRMAN PORTER stated there were two people on teleconference and            
 three people in the audience to testify.  He asked if there were              
 any questions of the sponsor.                                                 
 REPRESENTATIVE CON BUNDE noted he did not find a fiscal note and              
 asked if that was an oversight.                                               
 Number 085                                                                    
 REPRESENTATIVE OGAN answered that there was an assumption it came             
 from another committee, but a fiscal note was requested and he                
 anticipates receiving it shortly.                                             
 CHAIRMAN PORTER asked if there was someone from the Department of             
 Law who could shed some light on that.                                        
 CHAIRMAN PORTER asked for Mr. Mark Campbell, on teleconference in             
 Mat-Su, to testify.                                                           
 MARK CAMPBELL via teleconference in Mat-Su, testified in support of           
 this bill and asked committee members to support it as well.  He              
 stated his reason for supporting HB 255 is through personal                   
 experience of recently losing his 19-year-old son through a                   
 negligent driver.  Mr. Campbell said his son's friend and four                
 other teens were injured.  He stated that it was his experience               
 that just a simple traffic violation, a maximum of a $300 fine, and           
 ten minutes in traffic court sends an entirely wrong message to the           
 community and to other teens.  Mr. Campbell said, "In this case the           
 offender was an 18-year-old driver."  He said he and his wife                 
 regret there is not more in state law that can be done.                       
 MR. CAMPBELL said in working with the District Attorney (DA) and              
 the troopers, he and his wife were surprised there is nothing                 
 beyond just traffic court.  He related he and his wife are not                
 suing the young man.  They don't desire that his life should be               
 ruined.  It was negligence on his part and they wish that he had              
 acted more responsibly, but that was not the case.  Mr. Campbell              
 just regretted there was not at least an opportunity for his                  
 license to be taken.  He said he saw the same young man just a                
 month later as the young man sped through an intersection, which              
 caught he and his wife's attention.  He was surprised to see the              
 same young man and he got a hold of him and spoke to him about it,            
 and spoke to his parents about it.  He said he would just like to             
 see that there is more (indisc.) or a law which gives more                    
 incentive in a situation such as this.  Mr. Campbell said the                 
 person who had caused the accident was just graduating and he                 
 thinks it sends an entirely wrong message to all high school kids             
 that there are no real consequences for that type of negligence.              
 Mr. Campbell stated, "In our case, it was basically a $300 fine and           
 ten minutes in traffic court, and that's for two deaths and four              
 injuries."  He went on to say he would like to see new legislation            
 that would do more and offer more in this case.                               
 Number 200                                                                    
 REPRESENTATIVE AL VEZEY asked Mr. Campbell why he thinks the state            
 should take action when he declined to sue this individual in                 
 court.  He said it seems a little contradictory there.                        
 MR. CAMPBELL replied he simply thought there should be a loss of              
 license for a period of time, perhaps just to put it in a more                
 serious situation, to face up to the responsibility of what can be            
 done.  He said, "I understand there is civil action you can take.             
 The reality of that is simply that you would spend your time and              
 energies in a situation where, when you lose your 19-year-old son,            
 or, in our case, I'm not limiting it to that.  I'm sure the pain is           
 the same for anybody who has lost a loved one due to an accident              
 like this.  Their pain would be the same."  Mr. Campbell went on to           
 say, "Pursuing a civil matter, you don't have the opportunity to              
 put it to rest, to lay it aside."  He stated he and his wife did              
 not want to live their lives hounding and pursuing maybe a civil              
 judgment.  He pointed out you would have to track this young man              
 for the rest of his life, and they chose not to do that.  He said             
 they did not want their lives to become embittered or unresolved in           
 this matter.  They did not want his life to be that way as well;              
 however, he thinks there is still too little that can be done.                
 Number 245                                                                    
 REPRESENTATIVE VEZEY said he believes Mr. Campbell's testimony was            
 that he thought it was be appropriate in cases of this nature, if             
 an individual were to lose their license.  He asked if Mr. Campbell           
 had not testified to that effect.                                             
 MR. CAMPBELL answered, "I certainly think there should be something           
 that, when you cause a death, and it is negligence on your part, I            
 think that should be an absolute first thing that happens."  He               
 said in their situation, they certainly saw the message being sent            
 to so many other teenagers there is no action being taken.                    
 REPRESENTATIVE VEZEY said the reason he asked that question is                
 there is not a provision in this bill for revocation of license.              
 There is no change in that regard.  He pointed out this bill                  
 provides for making negligent vehicle homicide a misdemeanor, which           
 carries jail time, but does not carry the revocation of driving               
 license privileges.                                                           
 MR. CAMPBELL replied, "Again, if the judge had a little bit more              
 leeway to do something, and if the judge chose to, instead of                 
 imposing jail term, it could be moderated with a driver's license             
 revocation.  In fact, a jail term might be needed in some                     
 situations."  He believes it gives greater recourse than a simple             
 traffic violation would.  Mr. Campbell related they had to track              
 down the action that was being taken, and finally found it was in             
 traffic court.  He said he and Mrs. Campbell requested to speak at            
 the time because nothing was being done at all.  He said he was               
 able to talk to the judge and request at least the $300 fine, or              
 perhaps community service in some area that would bring it home.              
 He stated he suggested ambulance service or that type of thing.               
 The judge gave that, but it was the maximum he was able to do.  But           
 that was only traffic court.                                                  
 CHAIRMAN PORTER said they were checking right now to see whether              
 this bill would give the court the option of suspending.  He saw              
 the Department of Law people shaking their heads and said the                 
 committee might want to make an addition to this bill.  Chairman              
 Porter asked for Scott Richardson to testify via teleconference.              
 Number 300                                                                    
 SCOTT RICHARDSON, testifying via teleconference from Mat-Su, stated           
 his son was also killed in the same accident as Mr. Campbell's son.           
 The boys were good friends.  He said when they found out the                  
 maximum penalty for reckless or negligent driving which resulted in           
 a death was a traffic ticket and a $300 fine, he and his wife were            
 dismayed.  Mr. Richardson related that in talking to the DA, and              
 eventually, the traffic court judge, they said in most states,                
 there is a misdemeanor charge for this kind of thing.  He said                
 there are three levels:  A traffic ticket; a misdemeanor; and a               
 felony.  In Alaska there is only a traffic ticket and a felony, no            
 middle ground.  He went on to say, "It's extremely difficult to               
 have a felony charge, or vehicular homicide situation.  You have to           
 have the person be drunk, or on drugs, or some extreme kind of                
 thing which, from the DA's example he shared with them, there were            
 a number of situations where the DA felt it should be convicted as            
 a felony, but there just wasn't enough evidence."  Mr. Richardson             
 said it was very difficult to get that felony, and he believes                
 there should be a medium punishment because the punishment should             
 fit the crime.  He said, "It was a dangerous and snowy day and his            
 recklessness resulted in the death of our son.  What does that say            
 to society?  We just give him a traffic ticket and a $300 fine.               
 We're just sending the wrong message."  Mr. Richardson said the               
 judge and the DA both agreed.  The judge said a misdemeanor or                
 felony charge would give a little more room to decide what he                 
 thought was appropriate in these situations.  Mr. Richardson feels            
 there is a gap in Alaska law that needs to be filled.                         
 Number 370                                                                    
 REPRESENTATIVE BUNDE thanked both gentlemen for testifying, knowing           
 it was very difficult for them, and hopefully, some progress in               
 this area of legislation will add to the healing process.                     
 Number 375                                                                    
 CHAIRMAN PORTER added that he had a requirement in his life to deal           
 with these kinds of situations on a professional level, and for               
 what it's worth, the approach expressed by Mr. Campbell, in terms             
 of trying to bring the matter to closure, is the best attitude to             
 take and he commends Mr. Campbell for having the ability to take              
 it.  Chairman Porter then asked Valerie Lemon to speak.                       
 Number 390                                                                    
 VALERIE LEMON, P.O. Box 870441, Wasilla, Alaska, testified in                 
 Juneau.  She stated she was involved in a car accident in November            
 1991 and her sister, Lori, was killed and Valerie was badly injured           
 and they didn't know if she would live.  She said, "My brother was            
 driving the car and he got a skull fracture.  The lady who ran the            
 red light hit Lori in the side of the car where she was sitting,              
 and I was in the back."  She related she used to be an excellent              
 figure skater when she was 8-years-old, and now she can't do it               
 because of the car accident and she is upset that all the lady got            
 was a $50 ticket.  Miss Lemon said, "This is Lorian the teacher of            
 this, the day that she died, called `I remember Lorian.'  Her long            
 hair.  Her beautiful smile.  Her wonderful laugh.  Her (indisc.).             
 Her graceful skating.  Her ability to make me feel as good as a               
 person and a teacher.  I will never forget my last memory of Lorian           
 picking up all the flowers her father sent for her birthday, that             
 shy smile as she opened up her card, not knowing who they were                
 from, and then the widest, most beautiful smile when she knew.                
 It's the one memory I will always cherish."  Miss Lemon showed a              
 picture of Lorian that her dad had taken.                                     
 CHAIRMAN PORTER thanked Miss Lemon and complimented her on her                
 testimony.  He then called on Valerie's mother, Mrs. Lemon.                   
 Number 500                                                                    
 FLO LEMON, P.O. Box 870441, Wasilla, Alaska, testified in Juneau.             
 Ms. Lemon stated, "Almost three and one-half years ago, at the                
 intersection of Muldoon and Northern Lights, three of my four                 
 children were involved in an automobile accident.  Lorian, who had            
 just turned 11 the day before, was killed instantly.  Valerie was             
 injured very critically, and my 17-year-old son, who was driving,             
 was also injured."  Ms. Lemon went on to say that the lady who had            
 run the red light and hit her children's car was not drunk, not on            
 drugs; just in a hurry to get to work.  She said the woman was not            
 paying attention and didn't see the light turn red.  Ms. Lemon said           
 there is something wrong with a system that allows a $50 fine for             
 killing someone while breaking a traffic law such as running a red            
 light.  She related that Valerie, in her testimony, had hardly                
 touched the surface of what she's been through and has yet to go              
 MS. LEMON stated: "I want the laws to change."  She feels that                
 people need to be responsible for their own actions.  She pointed             
 out that no matter what the size of a car it can be a dangerous               
 weapon if you are negligent.  She asked the committee to please               
 help pass this bill to protect others from going through what her             
 family and friends have gone through.  She related: "If you've ever           
 had a telephone call at work, it's a parent's nightmare."  Ms.                
 Lemon said when she got the phone call she only knew her son was              
 involved and had no idea her two girls were involved in this                  
 accident.  Ms. Lemon said, "It is the worst thing when you see, at            
 a hospital, all these blue uniforms coming to you, and I hope to              
 God that not any one of you will have this happen to you."  She               
 continued, "I hope this law gets passed because I think it was                
 something that was needless.  It was a very violent death and it              
 was not necessary."                                                           
 CHAIRMAN PORTER asked if anyone else would like to give testimony             
 on HB 255.                                                                    
 DEPARTMENT OF LAW, said she "very much feels for the losses heard             
 about in the committee meeting.  If there were a way that our laws            
 could make people whole in these situations, truly, we would want             
 that to happen."  She stated that her points today are fairly                 
 technical legal points and wouldn't expect any of the people heard,           
 who have suffered, to really be able to appreciate this perspective           
 and so she apologized to them.  She said she "by no means wants to            
 belittle the circumstances they have gone through."                           
 MS. KNUTH related the problem from a legal perspective, there is              
 the crime already called "criminally negligent homicide," which is            
 virtually identical to the crime being proposed.  It is a Class C             
 felony and if negligent vehicular homicide became a crime, it would           
 become a lesser included offense of criminally negligent homicide.            
 A lesser included offense means that in every case that went to               
 trial, the jury would have a right to hear about this other lesser            
 offense, and juries frequently take advantage of lesser included              
 offenses.  It's a way of sort of "splitting the baby" and pleasing            
 both the prosecution and the defense.  She said, they know if there           
 was an offense such as this, they would lose virtually every                  
 criminally negligent homicide case that they got.  The jury would             
 reduce it to negligent vehicular homicide and it would be a                   
 misdemeanor offense.                                                          
 MS. KNUTH stated the difference between the two is two words.  She            
 asked the committee to look at the bill on page 1, line 13:  For              
 criminally negligent homicide it is, instead of "perceiving an                
 unjustifiable risk," it's "perceiving a substantial and                       
 unjustifiable risk."  And on line 14, instead of "constituting a              
 deviation from the standard of care," criminally negligent homicide           
 "constitutes a gross deviation from the standard of care."  She               
 said it is very unlikely that a jury would be able to tell the                
 difference between an unjustifiable risk and what is a substantial            
 and unjustifiable risk, and what is a deviation from the standard             
 of care, and what is a gross deviation from the standard of care?             
 She added that these are concepts that are difficult enough to                
 explain to a jury.                                                            
 MS. KNUTH noted two things:  "If you were seeking to revoke a                 
 person's driving license with this new offense, you would need to             
 also amend AS 28.15.181."  She then listed the types of convictions           
 that are grounds for the revocation of driver's licenses:                     
 Manslaughter or negligence resulting from driving a motor vehicle.            
 She stated the committee would need to add "negligent vehicular               
 homicide" to that list.  There is a Class A misdemeanor driving               
 offense right now of reckless driving, that is 28.35.040.  She said           
 there is something for criminally negligent homicide and negligent            
 driving.  There are only certain circumstances when it applies and            
 it apparently was not applicable in the running the red light                 
 situations described here today.                                              
 MS. KNUTH said traditionally, criminal law has stopped with                   
 criminal conduct and that is what criminally negligent homicide is,           
 the lowest form of criminal behavior the law is taking action                 
 against.  Anything less than that is civil negligence.  She stated            
 to make criminal negligence a crime is entering an area not entered           
 before.  Ms. Knuth said society's answer is civil liability for               
 civil negligence.  She agreed all of the problems described by Mr.            
 Campbell are very real and they do prolong the entire experience              
 and it may not be economically, or in any way rewarding to do it,             
 but that is the remedy that Alaska law specifies for civil                    
 MS. KNUTH also noted if a conviction is obtained in a criminal                
 case, that creates almost a per se judgment in a civil case.  There           
 is no need to go through and reprove the civil case.  She said it             
 could be anticipated there would be a number of people who want               
 these civil negligence cases prosecuted because if there is a                 
 conviction they could use it for their liability cases.  Ms. Knuth            
 stated the way the traffic system is set up, licenses can be                  
 revoked if a person accrues more than a certain number of points in           
 a limited period of time.  She said the types of driving violations           
 described in the hearing don't involve enough points to lose a                
 license on just the one incident, but other bad driving resulting             
 in point offenses, that would result in license revocation.  She              
 asked if she could answer any questions.                                      
 Number 620                                                                    
 REPRESENTATIVE DAVID FINKELSTEIN commented that this is a                     
 complicated area.  He asked Ms. Knuth to tell him a little more               
 about the reckless driving, and what it takes to get into that                
 category, and the reference numbers.                                          
 Number 630                                                                    
 MS. KNUTH responded it's 28.35.040, and it says "A person who                 
 drives a motor vehicle in a manner that creates a substantial and             
 unjustifiable risk of harm to a person or to property is guilty of            
 reckless driving.  A substantial and unjustifiable risk is a risk             
 of such a nature and degree that the conscious disregard of it, or            
 failure to perceive it, constitutes a gross deviation from the                
 standard of conduct that a reasonable person would observe in this            
 REPRESENTATIVE FINKELSTEIN said it didn't sound much different than           
 the standard for the Class C felony of criminally negligent                   
 homicide.  It still has `gross deviation.'                                    
 MS. KNUTH agreed and said to a certain extent, the criminally                 
 negligent homicide is reckless driving that results in death.                 
 REPRESENTATIVE FINKELSTEIN brought up the fact that once the things           
 get on the books, they get subsumed under another category when the           
 jury is given its choices.  He asked what the terminology was.                
 MS. KNUTH said, "the lesser included offense."                                
 REPRESENTATIVE FINKELSTEIN asked why, since it doesn't require a              
 death, why wouldn't that be a lesser degree when someone is up for            
 charges on negligent homicide?                                                
 MS. KNUTH answered that in that situation, the lesser included                
 offense would require the jury to find that nobody died as a result           
 of the accident.  If that was the finding, the reckless driving               
 would be a lesser included offense.                                           
 Number 650                                                                    
 REPRESENTATIVE BUNDE said he, too, was appalled that these things             
 happen and just end up in traffic court.  He asked Ms. Knuth to               
 speculate why they'd end up with a $50 traffic ticket instead of              
 these other tools that could have been used.                                  
 Number 675                                                                    
 MS. KNUTH replied that sometimes accidents happen and sometimes               
 they are fatal.  And it wasn't a crime.  It was certainly tragic              
 and nothing anyone would desire, but in these circumstances it was            
 related the driver wasn't intoxicated or on drugs.  It was simply             
 a failure to pay sufficient attention, or inability to stop in                
 time.  She stated that culpability is measured more by the person's           
 conduct than what happens as a result of that conduct.  Ms. Knuth             
 agrees the results in these cases were awful, but in terms of how             
 culpable was the driver, there are times when these situations                
 happen and it doesn't go beyond the level of negligence.                      
 REPRESENTATIVE BUNDE said from his point of view, part of the laws            
 should also involve some societal condemnation, and when there is             
 a death involved that need seems to elevate for him.                          
 Representative Bunde asked Ms. Knuth about her testimony on                   
 revocation of licenses.  When there is an accident where it                   
 involves a loss of life, would she see a problem with increasing to           
 points to this type of accident?                                              
 Number 690                                                                    
 MS. KNUTH responded she thinks the point schedule is developed                
 through the Department of Motor Vehicles and regulations, and that            
 is something they could probably look at.  She assumed there are              
 points given for negligent driving and may have been charged in               
 these cases.                                                                  
 REPRESENTATIVE VEZEY said his recollection that reckless driving              
 carried a variable penalty of 6 to 12 points, at the discretion of            
 the judge, but he could be wrong.                                             
 MS. KNUTH said she thought that was accurate.  She saw that                   
 reckless driving is basis for license revocation, but does not see            
 negligent driving on that list.  She said it may be it is not there           
 and the reason the action might not have been taken.                          
 CHAIRMAN PORTER stated that at some point he thought they dropped             
 "negligent" for "careless."  They have just gone from reckless to             
 Number 715                                                                    
 REPRESENTATIVE CYNTHIA TOOHEY asked Ms. Knuth if the rules on the             
 book now are the maximum?  She asked, "If you had your druthers,              
 would you take this piece of legislation and superimpose it onto              
 the one we have now?"                                                         
 Number 720                                                                    
 MS. KNUTH answered she would not because she feels there is a need            
 for a felony vehicular homicide law, and there are people who need            
 to be on probation who have caused loss of life.  She stated her              
 concern is if this misdemeanor offense is created that all of those           
 felony people are going to get advantage from that.  She said as a            
 matter of philosophy, she thinks criminal law should be restricted            
 to criminal conduct.  If it is just a civil negligence in the                 
 conduct then it should be restricted to civil penalties, except for           
 the traffic matter, which is sort of a parallel matter that is                
 going on.                                                                     
 Number 735                                                                    
 REPRESENTATIVE VEZEY said he thinks there is some real problem with           
 the law, and there have been a lot of "gyrations" the last six or             
 eight years over mandatory insurance and he believes the standard             
 right now is minimum insurance requirement liability insurance is             
 $100,000?  He asked, "That is maximum per occurrence isn't it?"               
 MS. KNUTH said she would have to look it up.                                  
 REPRESENTATIVE VEZEY stated he does believe that is a serious                 
 weakness in the law.  He felt that figure is too low.                         
 Representative Vezey feels this area of minimum insurance                     
 requirements should be addressed.  He stated if this requirement is           
 raised there would be some people who will be assessed an insurance           
 premium that will be prohibitive to them economically; therefore,             
 they will not be able to satisfy the Department of Motor Vehicles             
 requirements to get a license.  This would amount to economic                 
 revocation of their driver's license.  Representative Vezey said he           
 saw nothing wrong with denying them a license if they can't afford            
 the risk.  This is an approach he would like to see the committee             
 pursue.  He pointed out you would not be using either civil, or               
 traffic, or criminal courts to pursue a remedy.  This would allow             
 the statute to work through the marketplace.                                  
 Number 771                                                                    
 REPRESENTATIVE FINKELSTEIN said he was trying to assess this                  
 category.  He asked if Ms. Knuth would try to help him understand             
 the kinds of crimes, under the criminally negligent homicide                  
 category, cases that end up in here?  He asked if they were mostly            
 drunk driving?                                                                
 MS. KNUTH answered that was correct.                                          
 REPRESENTATIVE FINKELSTEIN asked if there were others that make up            
 a significant portion of those?                                               
 Number 773                                                                    
 MS. KNUTH said she didn't know, as she is not familiar enough with            
 the prosecution of these cases.                                               
 REPRESENTATIVE FINKELSTEIN brought up two more things that might              
 deserve investigation.  They are to try to figure something that at           
 least gets into the issue of driver license revocation, perhaps               
 through the point system.                                                     
 Number 780                                                                    
 REPRESENTATIVE JOE GREEN asked Ms. Knuth if a person were to use a            
 gun negligently with no criminal intent, and it discharges and                
 kills someone, are there laws on the books to cover that, or is               
 that also just a minor problem?                                               
 Number 785                                                                    
 MS. KNUTH answered it is not a minor problem, but not necessarily             
 a criminal matter.  She related there are circumstances where kids            
 are involved in shooting accidents and it is negligence.  There is            
 no prosecution if it is just negligence.  She stated the people               
 involved in these circumstances pay a much greater toll for what              
 they have done, just from having to live with themselves, than                
 anything that could be done to them through the criminal system.              
 Ms. Knuth said she has never seen anyone who accidentally caused              
 the death of someone else who was blase' about it.  She said that             
 what could be done through the criminal system pales compared to              
 what they do to themselves.                                                   
 Number 805                                                                    
 REPRESENTATIVE GREEN said he could appreciate what Ms. Knuth was              
 saying, but after the fact, is there some way this can be                     
 addressed, if it is not criminal, that there could be something               
 done to the civil laws then that would bring this awareness before            
 the fact.  He pointed out that getting a driver's license is a                
 simple thing and we get so blase' about driving a car without                 
 realizing it's a killing machine.  Representative Green asked where           
 something could be done in the civil side that would be a                     
 MS. KNUTH said that traditionally, extending the civil court and              
 just the fear of being bankrupted through civil judgment would be             
 a deterrent.                                                                  
 Number 820                                                                    
 REPRESENTATIVE VEZEY said he has always been confused on this area            
 of the law, but if the matter was covered by insurance he said he             
 believes you fundamentally have a choice to either go after the               
 plaintiff's assets or the insurance.                                          
 MS. KNUTH answered, "You go for all of it."  She said usually                 
 people settle for the insurance because those are the easy dollars.           
 She gave the following example:  "You have a $2 million judgment              
 and the insurance is good for $500,000; you can put a lien on the             
 home, good for another $200,000; then you hit their permanent fund            
 dividends for the next however many years."                                   
 REPRESENTATIVE VEZEY stated he was sure she was right, but the                
 fiduciary guideline is to carry enough insurance to cover your                
 assets, not your assets plus 100 percent.  He pointed out you don't           
 sue the insurance company.  You sue the party who has insurance.              
 Representative Vezey recognized that if the insurance didn't pay,             
 your other assets would be exposed.                                           
 MS. KNUTH said that's right, if you had them.                                 
 Number 845                                                                    
 REPRESENTATIVE TOOHEY wanted everyone to understand why this bill             
 would not work.  She said she thinks this is not going to help, or            
 alleviate the problems in the future.  She asked if someone doesn't           
 think this is true, to please come forward.                                   
 Number 850                                                                    
 CHAIRMAN PORTER asked if anyone else would like to provide                    
 testimony on HB 255.  Hearing none, the public hearing was                    
 concluded.  He pointed out there were several approaches the                  
 committee could take considering this bill and its options, or                
 anything else any of the members might come up with to help with              
 Number 865                                                                    
 REPRESENTATIVE OGAN wanted to make a couple of comments.  He stated           
 that this was a case where there is a hole in the law.  He is not             
 sure if this bill is the proper vehicle, but this problem needs to            
 be addressed.  Representative Ogan referred to a comment made by              
 Ms. Knuth regarding the criminal versus the civil argument.  He               
 said he believes when you break a traffic law, and it results in a            
 death of a person, it should be a crime, a criminal action.                   
 TAPE 95-45, SIDE B                                                            
 Number 000                                                                    
 REPRESENTATIVE OGAN recalled the testimony of Valerie Lemon and Ms.           
 Lemon regarding the accident Valerie and her siblings were in.  He            
 said he thinks when someone is as negligent as this, there should             
 be some sort of ramifications for it other than a traffic ticket.             
 He asked the committee to come up with an alternate, or help him              
 with this problem.  Representative Ogan said he truly believes                
 these people need to suffer a little more ramifications for                   
 breaking the law and killing somebody.                                        
 REPRESENTATIVE OGAN asked if anybody had more questions or                    
 REPRESENTATIVE BUNDE commented he didn't think civil redress is               
 appropriate in this case where people are using vehicles to cause             
 the death of other people.  He feels the societal combination of              
 `you've broken a criminal law as well as a civil law.'                        
 Representative Bunde is sharing the frustration.  He would like to            
 see that gap filled, and he would like to see automatic revocation            
 of driver's license in this case.  He stated he refers to the legal           
 experts to get there, but it definitely needs to get there in his             
 REPRESENTATIVE OGAN commented that sometimes the legal experts have           
 real good legal reasons why we can't do it, but it doesn't                    
 necessarily make sense.  And it sometimes offends people's sense of           
 right and wrong.  He stated he clearly believes these cases have              
 offended his and other people's senses of right and wrong.                    
 Representative Ogan said he knows there is a fair amount of outrage           
 with people who can break traffic laws and walk away with impunity            
 Number 085                                                                    
 REPRESENTATIVE TOOHEY asked what are the penalties for felonious              
 CHAIRMAN PORTER responded that it would be a Class B felony.                  
 REPRESENTATIVE TOOHEY asked, which means what?                                
 MS. KNUTH stated Class B felony is five years in prison, more than            
 a $50,000 fine.                                                               
 CHAIRMAN PORTER said the first thing to address is, he got the                
 impression the idea of making this behavior, i.e., what is                    
 tantamount to a single traffic violation a misdemeanor crime, if              
 there is a death resulting, is problematical.                                 
 REPRESENTATIVE FINKELSTEIN agrees it is problematical in the                  
 setting of the law.  He said it sounds like it is also a reasonable           
 goal, we just haven't been able to do it in the context of the law.           
 CHAIRMAN PORTER said that is the first hurdle he is asking the                
 committee to consider.  He stated if the committee wanted to stay             
 with the notion of making this a misdemeanor crime, then perhaps              
 the ability to suspend or revoke the driver's license can be added,           
 and vote this thing through.                                                  
 Number 135                                                                    
 REPRESENTATIVE VEZEY said he is opposed to making homicide at any             
 level a misdemeanor as he thinks that is going backwards.  He said            
 he knows that the prosecution and incarceration of individuals                
 charged with negligent homicide with a vehicle is currently                   
 successful.  He stated he is not aware of any of those cases that             
 don't involve alcohol or drugs, but as soon as vehicular homicide             
 is made a misdemeanor the ability to put these people under                   
 incarceration for ten plus years goes away -- not technically, but            
 from a practical viewpoint it does.  Representative Vezey pointed             
 out if you give the jury or defense attorney these kinds of                   
 options, this reduces homicide with a vehicle from a possible                 
 felony, if it is indeed found by a jury to be criminal negligence,            
 nor intent either because people who are drunk don't intend to kill           
 people, then there would be no more felony convictions.                       
 REPRESENTATIVE VEZEY said it's not safe for society to be out in              
 the streets, and because of some of the existing laws we have for             
 getting some of those people are off the streets.                             
 Number 165                                                                    
 REPRESENTATIVE FINKELSTEIN asked Ms. Knuth what the effect would be           
 if the committee made it for serious bodily harm, not for death, so           
 it would be an option for the jury if they concluded a person did             
 die, it would then be an alternative to the reckless driving.  So             
 it would be a lower standard to meet it, but you would have to have           
 serious bodily harm.  Reckless driving is a higher standard, but no           
 proof of serious bodily harm.                                                 
 MS. KNUTH answered she was not quite certain what the implications            
 with that might be.  She did not know if the law is so warped that            
 a defendant could argue if the victim died, they certainly suffered           
 serious physical injury.  She said she would need to research that.           
 REPRESENTATIVE FINKELSTEIN said just for argument sake, the                   
 committee said, serious bodily harm short of death, so it couldn't            
 be a lesser included offense.  He felt there should be room out               
 there for the category being discussed here.                                  
 MS. KNUTH said actually, that would not address the category that             
 has been discussed here today, where the accidents were fatal.                
 REPRESENTATIVE FINKELSTEIN said his first question would still                
 remain, if one made this dependent on serious bodily harm.                    
 MS. KNUTH noted assault statutes are used, which relate to serious            
 physical injury in some driving cases.  So the law is not limited             
 to things specifically for motor vehicle accidents.  A car counts             
 as a dangerous instrument.                                                    
 REPRESENTATIVE FINKELSTEIN asked if all those assault statutes were           
 MS. KNUTH agreed they are.                                                    
 REPRESENTATIVE FINKELSTEIN said he didn't know if the goal was                
 achievable or not, but the goal is a lower standard, a lower                  
 REPRESENTATIVE BUNDE said in his mind, he thought the committee               
 should continue to explore a criminal penalty for the behaviors               
 being talked about and try to get it out of the civil arena.  He              
 pointed out that to address the concern about lesser and included             
 offense, if they have used alcohol then they are guilty of reckless           
 or negligent homicide?                                                        
 MS. KNUTH replied they were able to prosecute them.                           
 REPRESENTATIVE BUNDE asked if it would be possible to put some                
 proviso in this or similar legislation of not having used drugs or            
 alcohol, "I have not driven in impaired state."  They would only be           
 charged for this offense and not in the other offense so that when            
 you have this lesser and included, somebody who has used chemicals            
 could be charged by the other offense, then the jury can't plead              
 MS. KNUTH said this would warrant some pretty close scrutiny by               
 more people than just herself, but she knows the defendants would             
 argue:  We weren't intoxicated.  We didn't prove it, and therefore,           
 it should be a lesser included offense.  She stated the question is           
 how much evidence do they need to get that to the jury, and the               
 jury is then able to do what it wants with the case.  She didn't              
 know at what point they could say, "I was a refusal.  I didn't even           
 take the intoximeter, and you don't have any evidence of                      
 intoxication."  Ms. Knuth said she could see that they would want             
 to look at that very closely.                                                 
 CHAIRMAN PORTER asked if you would have a presumption?                        
 MS. KNUTH responded, that's correct.                                          
 Number 275                                                                    
 REPRESENTATIVE TOOHEY said she asked the sponsor if there were any            
 other states that had this law, and he stated that Michigan does              
 have a law on the books.  Representative Toohey gave a copy of the            
 law to Ms. Knuth for review.                                                  
 Number 285                                                                    
 REPRESENTATIVE GREEN referred to the lesser included offense and              
 asked if that was a procedure, a law?  What triggers that?                    
 Number 290                                                                    
 MS. KNUTH answered she didn't know if it was constitutionally                 
 required.  She thought it was, and the defendant has a                        
 constitutional right to ask the court for any and all lesser                  
 included offenses, and depending on the charge, i.e., assault in              
 the third degree can be a lesser included offense of assault in the           
 second degree, which is a lesser included of assault in the first             
 degree, and so you get to present all of these to the jury.  She              
 went on to say as long as the lesser included offense doesn't have            
 any new elements that aren't found in the bigger offense, you get             
 the instruction.                                                              
 REPRESENTATIVE GREEN said she had hit the key word.  There is no              
 sense in trying to attack that portion if there is a constitutional           
 process.  He thought maybe there could be one way the committee               
 could attack a court rule or something.                                       
 MS. KNUTH said no.                                                            
 REPRESENTATIVE BETTYE DAVIS suggested a subcommittee to further               
 pursue HB 255.                                                                
 CHAIRMAN PORTER agreed and said the committee had the will but not            
 the way yet and so what he would like to do is appoint a                      
 subcommittee.  He asked if there was anyone who would like to serve           
 on the subcommittee?                                                          
 REPRESENTATIVE DAVIS said she would like to serve, and she would              
 like the legal department to be there.                                        
 CHAIRMAN PORTER appointed a subcommittee with himself as Chair,               
 with Representatives Green, Davis and anyone else.  He felt they              
 ought to try to come up with something and he apologized to those             
 testifying that it cannot be brought to a close at that time                  
 because they want to try to do something that's meaningful, not               
 something that will result in a tragedy.  Chairman Porter said, as            
 everyone knows by statistics they keep hearing, the majority of               
 vehicular homicide cases are as a result of reckless and                      
 intoxicated drivers, and the committee would not want to mitigate             
 the responsibility that those individuals have incurred by good               
 intentions here.  Consequently, the committee will go to "plan B"             
 which has not been formulated, but the committee would endeavor to            
 come up with something that works.  The committee held HB 255 for             
 that purpose.                                                                 
 HJR 30 - AMEND U.S. CONST. TO LIMIT FED. COURTS                         
 CHAIRMAN PORTER introduced HJR 30 for consideration, amending the             
 U.S. Constitution to limit federal court's actions.                           
 Number 360                                                                    
 REPRESENTATIVE VEZEY, sponsor of HJR 30, stated HJR 30 is in                  
 response to a move going through various state legislatures,                  
 advocated primarily by the Missouri State Legislature where it was            
 initiated.  He feels all are aware of legislative-type action                 
 coming out of the Judiciary Branch of government which has gotten             
 to the point where they are actually levying taxes.  This                     
 resolution merely requests that the Congress of the United States             
 prepare an amendment to the Constitution of the United States                 
 prohibiting the federal court from ordering a legal subdivision of            
 a state or the state itself from imposing taxes.  Representative              
 Vezey then asked if there were questions.                                     
 Number 380                                                                    
 REPRESENTATIVE FINKELSTEIN commented that he was not familiar with            
 this action and asked for examples of where this is occurring.                
 REPRESENTATIVE VEZEY said there are numerous examples, but the most           
 notable case he was aware of was in St. Louis, Missouri where a               
 property tax was levied on the citizens of that county to support             
 a court ordered school improvement program, which had to do with              
 some of the communities being racially imbalanced, and rather than            
 busing, they were going to a "magnet-type" school system.  The                
 court set this plan up and ordered the taxes to be assessed to pay            
 for it.                                                                       
 CHAIRMAN PORTER called for further testimony on HJR 30.                       
 REPRESENTATIVE FINKELSTEIN commented the country has changed a bit            
 over time, but it isn't hard to recall some of the past activities            
 where the courts have had to go in and try to involve themselves in           
 desegregation efforts.  Of equal importance is the general concept            
 of equal treatment of our citizens which has not always occurred.             
 He feels when there is a certain locale deciding to go a different            
 direction, there may be an extreme circumstance that requires a               
 court imposed solution.  Representative Finkelstein thinks there              
 will be times when these kinds of actions are necessitated to                 
 pursue equal treatment the American people expect under the                   
 Constitution.  He stated for that reason, he would be inclined to             
 oppose the resolution.                                                        
 Number 440                                                                    
 REPRESENTATIVE DAVIS also had some concern with the resolution                
 based on the example given by the sponsor, because if that is the             
 primary reason, she has seen that the "magnet-type" schools did               
 work in areas where they were implemented and so, she cannot                  
 support HJR 30.                                                               
 REPRESENTATIVE BUNDE said it is not whether the magnet schools work           
 or not.  He believes the magnet schools in St. Louis did not work,            
 but in any case, it is whether the court should be able to impose             
 taxes or not.  He said he thinks that is the germane issue.                   
 REPRESENTATIVE VEZEY appreciated Representative Davis' remarks and            
 said he used that example because that was the case that went to              
 the Supreme Court.  That is where the Supreme Court clearly came              
 down and said the courts can impose taxes.                                    
 CHAIRMAN PORTER commented he was going to support this resolution             
 and he does not look at it as reducing the court's ability to deal            
 with discrimination cases at all.  The court can still order that             
 community do what they wanted them to do.  He thinks it is                    
 inappropriate, and an improper application of the separation of               
 power to say how you will do it by instituting taxes.  Chairman               
 Porter said it is up to the community as to how they want to abide            
 by that ruling.  They will have to abide by it, but they may want             
 to opt to amend some other targets to provide the funds to what the           
 court has ordered.  So, it isn't a matter of diminishing the                  
 court's ability to support civil rights.  He went on to say he                
 feels it is a clear separation of powers issue, as the power or               
 appropriation is the legislature's and the power of constitutional            
 interpretation of the court's.                                                
 REPRESENTATIVE DAVIS asked what if the court says, "You will take             
 it from this pool of money"?                                                  
 CHAIRMAN PORTER responded the St. Louis case was upheld by the                
 Supreme Court that they will do this by increasing the property               
 REPRESENTATIVE FINKELSTEIN said it is hard for him to argue the               
 particular circumstances, but he would suspect the way it works is,           
 it is true there have been numerous cases where some local                    
 subdivision or state has been in violation that in most cases where           
 the court orders, yes, you are going to come into compliance and do           
 it by allocating resources to address this concern.  He suspects              
 most of them do it.  Representative Finkelstein continued to say              
 that some still refuse and this is a historic fact.  He agrees that           
 doesn't affect most, only some of them.  Then the court orders an             
 action to uphold our Constitution which would become completely               
 ineffective if they have no remedy left in which to impose a                  
 solution because most states realize the court has no power to go             
 beyond what is really advice, so what effect does it have?                    
 CHAIRMAN PORTER replied usually those kinds of orders have the                
 effect of substantial federal funding behind them and if you don't            
 abide by the wishes of the feds, you lose your funding.  He said              
 his response to that is if there was such a community so                      
 recalcitrant as to disobey the order of the court, he doubts they             
 would tax themselves anyway.  So the court would still have to use            
 other sanctions to enforce their orders.  It is just the issue of             
 appropriation he is dealing with here.                                        
 REPRESENTATIVE VEZEY said he thinks Representative Finkelstein                
 missed the point because the courts deal with the recalcitrant                
 public officials on a daily basis, and the court has often found              
 those individuals to be in contempt of court and provided them                
 housing in the local correctional institution.  He stated there are           
 many avenues available for enforcement, but when the ability of the           
 court to actually assess taxes was upheld by the U.S. Supreme                 
 Court, there was a tremendous shift in the separation of powers               
 issue.  Representative Vezey said it was a tremendous usurpation of           
 power by the Judicial Branch of government and that is what he                
 believes the committee is addressing...that we do have a system of            
 separation of powers.                                                         
 REPRESENTATIVE FINKELSTEIN has no doubt that is the case, but he              
 doesn't see where there has been a high level of this occurring.              
 The question is, "Should the court system have the ability to do              
 this in the most extreme cases."   He didn't think there was a                
 pattern to show it has been abused.                                           
 CHAIRMAN PORTER asked if there was further discussion on HJR 30.              
 REPRESENTATIVE GREEN said there was a specific amendment and                  
 staying wide of a constitutional convention, but asked if there was           
 any concern of the sponsor that by doing this, or attempts to amend           
 or insist the federal government stick with what is already there,            
 that this will add fuel to opening the whole Constitution at the              
 constitutional convention.                                                    
 REPRESENTATIVE VEZEY replied the Constitution of the United States            
 is explicitly clear in how a constitutional convention is called.             
 This does not come any closer to calling a constitutional                     
 convention than does the dropping of a gavel of the chairman of               
 this committee.  A state cannot initiate a constitutional                     
 amendment; only petition the Congress to initiate a constitutional            
 amendment.  Only the Congress can initiate an amendment, which has            
 to be ratified by three-fourths of the states.                                
 Number 600                                                                    
 REPRESENTATIVE GREEN said he had not intended to get into a debate            
 and he is familiar with the constitutional law process.  His point            
 was in agreement with Representative Vezey's "gavel dropping"                 
 comparison and he disagrees with the fact it is only heard in this            
 room.  He said it was heard in all 50 states.  His point was, will            
 this cause anything, because it now goes to all 50 states                     
 requesting that there be a constitutional amendment, add any fuel             
 to the fire to what some perceive as a ground swell toward that               
 end?  Representative Green champions the idea, and he thinks this             
 is really necessary, but is concerned about, "How far does this               
 runaway horse go?"                                                            
 REPRESENTATIVE VEZEY answered this resolution is addressed to the             
 Congress of the United States, the President, the Vice President,             
 the Senate, and the House.  It would be passed on to the presiding            
 officers of the legislatures of our sister states, which he assumes           
 would be all 50 states.  It's just an indication we would like our            
 Congressional delegation to support an amendment to this effect.              
 CHAIRMAN PORTER commented he understands that Representative Vezey            
 doesn't think it will cause any difference, not to debate but to              
 find out.                                                                     
 REPRESENTATIVE VEZEY responded he was trying to understand the                
 question, and cannot see the connection to precipitating a                    
 constitutional convention.  He sees it as asking the Congress to              
 initiate an amendment to the Constitution, a process that has been            
 done approximately 35 times.  It is not asking Congress to call a             
 constitutional convention.                                                    
 REPRESENTATIVE GREEN said he understood that.  He pointed out a               
 significant change in the makeup of the Congress and there is a               
 ground swell for several such activities.  He stated he is against            
 this resolution.                                                              
 Number 620                                                                    
 REPRESENTATIVE TOOHEY informed the committee that amendments do not           
 cause constitutional conventions, and she feels the committee needs           
 some background.  She spoke to Representative Finkelstein stating             
 she doesn't think this is minor and that frightens her.                       
 CHAIRMAN PORTER asked if there was further discussion.                        
 Number 630                                                                    
 REPRESENTATIVE FINKELSTEIN said he didn't want to use the word                
 "minor," but there is a long history in this country and he didn't            
 know how many other cases had occurred, but if it has happened even           
 more than once, it's still a rare occurrence with all of the                  
 activities of the Supreme Court trying to enforce our Constitution.           
 CHAIRMAN PORTER asked for the wishes of the committee.                        
 REPRESENTATIVE BUNDE made a motion to move HJR 30 from the House              
 Judiciary Committee with individual recommendations.                          
 CHAIRMAN PORTER added with attached fiscal notes.  He said there is           
 a motion to move as described, and called for further discussion or           
 objections.  There was an objection.  Chairman Porter called for a            
 roll call vote.                                                               
 A role call vote was taken.  Representatives Vezey, Bunde, Toohey,            
 Green, and Porter voted to move the resolution.  Representatives              
 Davis and Finkelstein voted against moving the resolution.  HJR 30            
 was passed out of committee.                                                  
 HB 2 - BOOT CAMP FOR NONVIOLENT OFFENDERS                                   
 Number 650                                                                    
 CHAIRMAN PORTER asked the sponsor of HB 2, Representative Willis to           
 speak on his bill.                                                            
 REPRESENTATIVE ED WILLIS, Sponsor of HB 2, said in 1994 he                    
 introduced legislation relating to boot camps for nonviolent first-           
 time adult offenders.  He stated the bill before the committee is             
 an updated and final version of that bill.  It includes the ideas             
 of those interested in the boot camp concept, and addresses the               
 need of the Department of Corrections with regard to this proposed            
 REPRESENTATIVE WILLIS said he feels that placing nonviolent first-            
 time felony and misdemeanor offenders in a prison setting is not              
 the best way to accomplish rehabilitation for that offender.  He              
 said providing an alternative to prison time and an opportunity to            
 learn discipline and acceptable behavior will offer these offenders           
 a chance to avoid further encounters with the law.                            
 REPRESENTATIVE WILLIS said, "The bill before you would offer the              
 boot camp as an alternative program for first-time convicted felons           
 or misdemeanants under the age of 26.  Individuals convicted of               
 crimes, such as homicide, assault, kidnapping, sexual offenses and            
 offenses involving the use of a deadly weapon would not be eligible           
 for this option."  He went on to say, "The emphasis here is on                
 nonviolent first-time offenders.  At least 24 states operate boot             
 camp programs.  As can be expected, each state offers the program             
 to different groups.  For example, in 1993, Virginia's program was            
 limited to nonviolent new felony offenders 24 years of age or                 
 under, and did not allow felons convicted of murder, manslaughter,            
 kidnapping, sexual assault, and so on to participate in the                   
 program.  Massachusetts' program, in 1993, was for male offenders             
 under the age of 40."                                                         
 REPRESENTATIVE WILLIS stated he had submitted to the committee                
 various articles and studies concerning boot camp programs.  He               
 said he believed a boot camp program could help to address many               
 problems from prison overcrowding to recidivism rates.  He went on            
 to say a boot camp program has the potential of providing many long           
 term benefits and he would urge positive consideration of this                
 bill.  Representative Willis said he had submitted to the committee           
 a draft amendment to this bill, which was requested by the                    
 Department of Corrections.  The amendment would give the department           
 another tool it needs to make the program successful.  He                     
 continued, under the current proposal, individuals who successfully           
 complete the boot camp program might have to be placed back into              
 the general population to await parole hearing.  Representative               
 Willis said this amendment would allow a pre-release furlough while           
 awaiting the hearing.  In his opinion, placing a person who has               
 successfully completed the boot camp program back into the general            
 prison population would not be beneficial to the person involved in           
 the program.                                                                  
 REPRESENTATIVE WILLIS related that since he appeared before the               
 State Affairs Committee, he also submitted a newer version of the             
 fiscal plan and Mr. Jerry Shriner of the Department of Corrections,           
 is here to speak to the new fiscal note.  Also, since this bill was           
 before the State Affairs Committee, Mr. Shriner has been to                   
 Washington and conferred at some meetings on this particular issue.           
 Representative Willis said he hesitated bringing this back to the             
 committee until Mr. Shriner returned to Alaska so this committee              
 would have the benefit of his knowledge.                                      
 REPRESENTATIVE WILLIS said if it is the desire of the committee, he           
 would relinquish his seat to Mr. Shriner.                                     
 Number 725                                                                    
 REPRESENTATIVE BUNDE told Representative Willis that he did support           
 his legislation, as he did last time, although the idea of boot               
 camps to him, would involve younger offenders, and yet you are                
 including people up to the age of 26.  He asked if that was to                
 allow a young person to be sentenced and serve out a sentence, or             
 would Representative Willis envision a 26-year-old person being               
 assigned to boot camp.                                                        
 Number 730                                                                    
 REPRESENTATIVE WILLIS answered as he understood it, any person                
 convicted of a felony or misdemeanor, 26 years of age or younger,             
 that is in the hands of the Department of Corrections, could be               
 eligible for this program, but it would be under the age of 26.               
 Number 745                                                                    
 REPRESENTATIVE BUNDE asked if, when they reach 26 they are not                
 removed from the program?  There's not an upper age limit.                    
 REPRESENTATIVE WILLIS replied you mean if they happened to be 26              
 when they went into the program and they had a birthday after?                
 REPRESENTATIVE BUNDE said if they were 20 when they went in and               
 they had a seven year sentence.                                               
 REPRESENTATIVE WILLIS responded that boot camp is only 150 days.              
 REPRESENTATIVE BUNDE said, okay.  If they were 26 and had a                   
 birthday the day after sentencing.                                            
 REPRESENTATIVE WILLIS answered he would assume they would complete            
 the 150-day program.                                                          
 REPRESENTATIVE VEZEY asked for clarification on the fact the                  
 prisoners are only eligible if they are under 26.                             
 REPRESENTATIVE WILLIS answered yes.                                           
 REPRESENTATIVE VEZEY said he thought he heard him say 40.                     
 REPRESENTATIVE WILLIS stated they changed that back to 26.  He said           
 some states do allow an upper age limit.                                      
 REPRESENTATIVE VEZEY understood they have to be 25 years of age to            
 enter the program.                                                            
 CHAIRMAN PORTER said they can't be more than 25.                              
 REPRESENTATIVE WILLIS corrected this, saying they can't be more               
 than 26 years old.                                                            
 CHAIRMAN PORTER said for the information of the committee he thinks           
 the age 25 is the youthful offender (indisc.) the federal programs.           
 CHAIRMAN PORTER welcomed Mr. Shriner back from Washington.                    
 CORRECTIONS, gave a little background for the committee.  He began,           
 "Boot camp programs have been around in various states for a number           
 of years, since the mid- to early 80s.  Several programs have                 
 developed and there were problems with some of the earlier                    
 programs.  The primary problems had to do with the abuse of                   
 inmates, either a direct or indirect result of the emphasis on the            
 discipline and physical training that goes into these programs.               
 Much of that has been taken care of through proper staff training             
 supervision, study of the programs and the way they operate,                  
 careful hiring practices."  Mr. Shriner said he is convinced, after           
 talking to many of the people from the 26 states that have                    
 programs, that they can be operated humanely, safely, and                     
 effectively.  He stated that was his biggest concern so he was glad           
 to gain that part of the information.                                         
 MR. SHRINER related he felt he should address why the fiscal note             
 was changed.  Again, it has to do with people who have operated               
 these programs.  It was pretty clear that all of these programs               
 operate as minimum security facilities.  In the original fiscal               
 note, it was said the program would be designed with facility                 
 issues, and you have program by facility, aimed to meet the needs             
 of minimum custody prisoners.  He continued saying all of the                 
 programs he really would take a look at are minimum custody                   
 facilities, and staff report essentially every case of discipline             
 problems, escapes, violence between inmates or by inmates against             
 staff are practically unheard of.                                             
 MR. SHRINER said that his philosophy and the experience in the                
 normal prison facilities, the combination of hard work, the                   
 discipline that is imposed from the time they are there, all of               
 these programs carefully select inmates.  They have that option.              
 The average prison does not have to pick and chose which ones you             
 want to work with.  He said all of those things combined make these           
 relatively low risk groups of individuals with whom the Department            
 of Corrections works.  He stated the point of the program is that             
 in terms of designing a facility, you can design one with lower               
 security ratings.  You don't need as much fence.  You don't need as           
 many electronic gauges.  There's a lot of things you don't have to            
 put into these kinds of programs that you would have to put into a            
 medium security facility, for example.                                        
 MR. SHRINER related respective to the amendment that was proposed             
 having to do with furloughs, the original legislation would allow             
 an early parole for those folks who had successfully completed the            
 program.  He said one of the things that again virtually every                
 state that has these programs has found, is that a big part of it             
 is because the program moves rapidly.  It's 150 to 180 days in most           
 states, and a lot happens in that period of time.  To make this               
 thing happen requires a fair amount of reinforcement.  Mr. Shriner            
 continued much of the effects of 150 or 180 day programs would be             
 lost if the person then had to go back to a regular prison                    
 population and wait what would be a typical 120 days from the time            
 they successfully complete the program until the time they can get            
 a hearing before the parole board to be granted parole.                       
 MR. SHRINER said what the department suggested to the sponsor was             
 to allow the Commissioner of Corrections the option of granting               
 furloughs to those individuals who successfully complete the                  
 program because that is something that could be done the last week,           
 or the last two weeks, when it was obvious the person was going to            
 successfully complete, they could be granted a furlough in a                  
 somewhat less structured environment, but still under 24-hour                 
 supervision, and they could stay there during that time the parole            
 hearing was being processed.  Mr. Shriner stated the Department of            
 Corrections supports that and believes it is an important part of             
 making the program function effectively.                                      
 MR. SHRINER stated he supposed he had to talk about money since it            
 is related to the fiscal note, but the crime legislation that was             
 passed in 1994, federal crime legislation, set aside $24.5 million,           
 which, at this point, is only being dispensed for two things.  He             
 said they are making small $50,000 grants to states to do criminal            
 justice planning, and grants of up to $2 million to states that are           
 either renovating facilities or building new facilities out of                
 which they intend to operate boot camps.  Mr. Shriner went on to              
 say that in legislation that is through the House, and will be                
 before the Senate later on in May, there will be somewhere between            
 $6 billion and $10 billion over the next five years dispensed in              
 all probability in block grants to states, and much of that money             
 will be aimed at what is known as "violent offender incarceration."           
 Mr. Shriner said the point of it is to, in some way, assist states            
 in making sure there is room in their prisons to incarcerate                  
 violent offenders.                                                            
 MR. SHRINER said we are somewhat fortunate in this state in that              
 despite the fact that the prisons are overcrowded, he doesn't think           
 there have been any violent offenders put out on the streets for              
 lack of space for them to be incarcerated.  This is not true of               
 other states.  Georgia is an extreme example where a violent                  
 offender may get ten years and end up serving five or six days.  He           
 said they simply did not have room for people at the inn.  Mr.                
 Shriner said the point of the legislation and the reason that they            
 will be not only providing capital money as they are now, but will            
 in all probability be providing operating money for boot camps and            
 other kinds of alternative sanction programs, is for precisely that           
 reason.  He stated it is not that Congress has suddenly taken a               
 turn to intermediate sanctions.  Congress has said we want violent            
 offenders incarcerated and in order to do that we are willing to do           
 some things we might not otherwise advance.  For example, boot                
 camps, community work service programs, and all kinds of                      
 intermediate sanctions.                                                       
 MR. SHRINER said the reason he was telling the committee this is to           
 say that the fiscal note shows a capital reduction in what was                
 originally projected as a $5 million capital investment.  The                 
 Department of Corrections is now saying it's $3 million, in large             
 part because we believe we can build a facility with less security,           
 and, in fact, may be able to build it in connection, not physically           
 connected to, on the grounds of some other facility such as the               
 minimum security facility at Palmer, at Wildwood, or some other               
 place like that where there is some space and possibly some other             
 resources to apply to reduce the costs.                                       
 MR. SHRINER stated in terms of operating costs, the only difference           
 on the new fiscal note is the department applied more recent data             
 with regard to the cost to operate a prison bed in this state than            
 he had at the time he followed the original fiscal note, so that              
 reduced the costs somewhat.  He said at the same time, he applied             
 5 percent inflation factor that the...                                        
 TAPE 95-46, SIDE A                                                            
 Number 000                                                                    
 MR. SHRINER said he thought that explained the difference in the              
 fiscal note and the department's need for the furloughs.                      
 Number 070                                                                    
 CHAIRMAN PORTER stated Chairman Kott will kill him if he's late               
 again to one of his meetings, so he asked the Vice Chair to take              
 over.  He did have two questions first.  Are there enough prisoners           
 left in our system to make this a viable program?  He pointed out             
 they were cutting out violent offenders and it seemed to him most             
 of the activity done is already cut out.                                      
 MR. SHRINER answered that it is a close call, frankly.  He said the           
 department was concerned about two things in the bill.  The                   
 Department of Corrections would just as soon the age went to 30               
 years, for example, rather than 25.  The first offender also limits           
 that pool considerably.  You could easily have a second offender,             
 a second burglar for example, the person could be 21- 22-years-old,           
 have a second burglary, maybe has three or four years to serve.  He           
 may be a good candidate for this program, but would be excluded.              
 Mr. Shriner said that would increase the pool of people that are              
 available.  The short answer to Chairman Porter's question is, the            
 last time I looked there were some 233 individuals who are in                 
 minimum custody that are 25 years and under.  He said he has not              
 sorted out which ones of those are violent offenders.  He said he             
 suspects there are perhaps 100 of those who would really qualify              
 for this program and what they are looking at is probably a 50-bed            
 facility.  So, the short answer is yes, I believe there is.                   
 CHAIRMAN PORTER said he didn't see this the last time through, that           
 being the successful completion of this would put someone in the              
 position of the discretionary parole.  He asked if this would put             
 them in the position regardless of a determined sentence that they            
 MR. SHRINER responded that it was his understanding that it would,            
 but he is not an attorney so he will pass on that, as he is not               
 CHAIRMAN PORTER took his leave and turned the meeting over to Vice            
 Chairman Joe Green.                                                           
 VICE CHAIRMAN GREEN asked if there were any other questions of Mr.            
 Shriner.  He stated that Mr. Shriner had made a tremendous change             
 on the fiscal note, and he wondered if, given another two weeks,              
 Mr. Shriner could get that to where they would pay us?                        
 REPRESENTATIVE VEZEY asked if it would be fair to say that the                
 Department of Corrections is estimating about $20,000 per prison              
 bed, that would be $40,000 per year per prison bed, but about                 
 $20,000 per prisoner because they would be eligible for parole                
 after they completed this?  You're talking about $2 million and 100           
 bed years.                                                                    
 MR. SHRINER replied, 120 people.  He stated the current rate is               
 $107 a day average across the system.  If they are in there 150               
 days, yes, the cost for one of those individuals for the 150-day              
 program is going to be about $15,000.                                         
 REPRESENTATIVE VEZEY remarked that it was going to be the same cost           
 as the existing programs.                                                     
 MR. SHRINER answered that, in fact, the cost per day is more in               
 existing programs.  In other words, in low level security the                 
 average cost may be $107.  The people in this program may otherwise           
 be in a facility that operated at a lower cost where security is              
 lower.  He said on the other hand, they are only in this program              
 for half as long perhaps.  The other end of that is virtually                 
 everyone who operates these programs will tell you that it is not             
 enough to simply put someone through 150 or 180 days in a boot camp           
 program.  Mr. Shriner stated you have to provide a variety of other           
 services such as counseling, education, and intensive supervision             
 along with it and after it.  He said the cost of probation and                
 parole is higher for this group of people than for somebody getting           
 out of prison after two years.  Mr. Shriner related these states              
 have found when you tie the whole project together, you're probably           
 spending less on the boot camp people than on a normal imprisonment           
 simply because you've shortened up the prison time so much.  He               
 said the net effect is a smaller cost, but if you only look at the            
 daily cost it looks more expensive.                                           
 VICE CHAIRMAN GREEN asked if there were any more questions.                   
 REPRESENTATIVE TOOHEY inquired about the recidivism rate for these            
 MR. SHRINER stated the recidivism rate in well-run programs is                
 better although it's not like half.  It's like 2 or 3 percent and             
 some of the programs have dropped 5 or 6 percent.  It can be fairly           
 significant, but the services have to be provided that go along               
 with it and do a good job of it.  He said it's not a guarantee by             
 any means.                                                                    
 VICE CHAIRMAN GREEN asked if there were any other questions of Mr.            
 Shriner or the sponsor.                                                       
 REPRESENTATIVE BUNDE remarked that he didn't think 5 percent                  
 recidivism rate was a good rate.                                              
 REPRESENTATIVE VEZEY said he thought the recidivism rate differed             
 by 5 percent.                                                                 
 MR. SHRINER said that was correct.                                            
 REPRESENTATIVE BUNDE stated if the recidivism rate was 5 percent,             
 there would be no prison population.                                          
 MR. SHRINER agreed with Representative Bunde, but stated most                 
 states run 20 to 30 percent recidivism rate.                                  
 VICE CHAIRMAN GREEN asked what the wish of the committee was, if              
 there were no further questions.                                              
 Number 200                                                                    
 REPRESENTATIVE BUNDE made a motion to move amendment one, which               
 states:  page 1, line 3, following "eligible for", insert                     
 "furloughs and; page 2, following line 2, insert a new bill section           
 to read: "*Sec. 3.  AS 33.30.111 is amended by adding a new                   
 subsection to read: (g) A prisoner who has successfully completed             
 the boot camp program under AS 33.30.182 is eligible for a                    
 prerelease furlough under this section under regulations adopted by           
 the commissioner under AS 33.30.101 regardless of whether the                 
 prisoner has served the portion of the term required under (d) of             
 this section."; renumber the following bill sections accordingly.             
 VICE CHAIRMAN GREEN asked if that was the one dated 3/27/95?                  
 REPRESENTATIVE BUNDE affirmed the date of 3/27/95, page 1, line 3.            
 VICE CHAIRMAN GREEN asked Representative Willis if he would like to           
 speak to the amendment.                                                       
 REPRESENTATIVE BUNDE replied that the amendment had been spoken to,           
 but not passed yet.                                                           
 REPRESENTATIVE WILLIS stated that would give the Department of                
 Corrections the tool it needs to make the program successful.  It             
 would allow a prerelease furlough while awaiting the hearing.  He             
 said that is the thrust of that particular amendment.                         
 VICE CHAIRMAN GREEN asked if there was any discussion or objection            
 to the amendment.  Hearing none, the amendment passed.  (Indisc. --           
 static on tape).                                                              
 REPRESENTATIVE FINKELSTEIN asked where does it say (indisc. --                
 static) anyone who is on their second prison term wouldn't qualify?           
 MR. SHRINER said page 3, line 23.                                             
 REPRESENTATIVE FINKELSTEIN said he must have misunderstood the                
 testimony because he thought only first offenders would be able to            
 MR. SHRINER replied that he may have misspoken himself as this                
 issue was discussed and what it actually said was "cannot actually            
 have participated in a boot camp program" and then the other                  
 conditions for eligibility.                                                   
 REPRESENTATIVE BUNDE made a motion to move CSHB 2(JUD).                       
 VICE CHAIRMAN GREEN (indisc. - static) asked if there was any                 
 objections.  Hearing none, CSHB 2(JUD) was moved out of committee.            
 HB 274 - TUBERCULOSIS CONTROL                                             
 Number 220                                                                    
 CHAIRMAN PORTER asked the sponsor, Representative Cynthia Toohey,             
 to speak on House Bill 274.                                                   
 REPRESENTATIVE TOOHEY stated this was an amendment submitted by the           
 Department of Health, Education and Social Services (HESS).  She              
 invited Dr. Peter Nakamura to speak on the bill.                              
 OF HEALTH AND SOCIAL SERVICES, spoke on this issue which he feels             
 is extremely important to the ability to address the problems of              
 tuberculosis (TB).  He stated there has been a resurgence of the              
 problem this year and found one situation where the individual was            
 not able to conform to the requirements for treatment and the                 
 department had to impose detention or quarantine.  Dr. Nakamura               
 said in doing that, the department found the statutes were out of             
 date and did not provide for individual due process as identified             
 in our Constitution.                                                          
 DR. NAKAMURA related the department readdressed the issue and in              
 readdressing it, they covered a number of revisions in HB 274.  One           
 issue covered was to bring the practice of monitoring of TB more up           
 to current standards in terms of reporting; assuring that if an               
 individual is identified as having TB, it is reported to the State            
 Health Department, and that if an individual is under treatment for           
 TB, the State Health Department be notified if the treatment is               
 stopped at any time before conclusion.  The concern is if the                 
 treatment is stopped before completed, there is the chance of                 
 developing a drug resistant strain of TB.  He said once that                  
 happens, it is extremely difficult and each time the organism                 
 develops another resistance, there is always a possibility to                 
 develop an organism that is totally unresponsive to any medication.           
 He went on to say to avoid that, there is in this amendment, a                
 requirement that any person on TB treatment stay on TB treatment              
 until completed.                                                              
 DR. NAKAMURA pointed out some wording changes such as "TB                     
 sanitorium," which we no longer have; a label for those having TB             
 as "tubercular," a term that is no longer appropriate; a                      
 recognition of physicians practicing in Alaska who may not be                 
 licensed in Alaska, but have the approval to practice medicine in             
 Alaska.  This would be those federal physicians who were assigned             
 to some of the programs where a license is not required in the                
 state, but they can practice.  The revisions would allow that to              
 continue in the way it presently does.  Dr. Nakamura continued                
 saying it allows access by the state medical officers to health               
 records of any individual with TB in the instance where they are              
 reported as not conforming to the appropriate treatment.                      
 DR. NAKAMURA stated that the main issue in the bill is to assure              
 there is due process so that when an individual is detained or                
 quarantined, the department does not have to face the charge of               
 constitutionality of their act so they can treat the person, if               
 necessary.  Dr. Nakamura cited two situations in Anchorage where              
 two individuals terminated their treatment after approximately four           
 weeks of therapy.  The only way to get them back into treatment               
 would have been under criminal penalties.  He said the rewrite of             
 this statute does include some reference to penalties, to a                   
 misdemeanor, and further review of the number of amendments he                
 hopes can be introduced to remove that stigma.  The department                
 feels it is inappropriate to take an individual who is ill and make           
 it a criminal offense in any way.                                             
 DR. NAKAMURA feels there are some individuals who cannot conform to           
 the proper treatment and as long as the department has the ability            
 to detain them and assure they are on therapy, it should not be a             
 criminal offense.  Dr. Nakamura went on to say if it is made a                
 criminal offense, it will make it much more difficult for the                 
 health providers to address these issues with other people.                   
 Number 375                                                                    
 REPRESENTATIVE TOOHEY asked if the imposed detention mentioned was            
 through a quarantine court order.                                             
 DR. NAKAMURA answered yes, under the due process a hearing is                 
 required and that the hearing take place in a prompt manner so the            
 person is not detained over a period of time without an appropriate           
 hearing.  He also brought up the privacy issue, which is not                  
 included in this bill, to assure the individual's right to a                  
 hearing in privacy if they so choose.  Dr. Nakamura stated that the           
 department's concern is there could be a breach of privacy in that            
 individual's medical records.                                                 
 CHAIRMAN PORTER asked if there were any questions of Dr. Nakamura.            
 REPRESENTATIVE BUNDE moved the following amendment, dated                     
 4/11/95/8.1.:  Page 1, lines 1-2, delete ", including provisions              
 for certain penalties"; page 7, line 3, delete "and"; page 7, line            
 6, after "provided", insert "; and (5) advice to the person being             
 detained that the person has the right to elect whether a                     
 proceeding providing court review is open or closed to the public";           
 page 8, after line 15, insert a new subsection to read "(d)  A                
 person who is the subject of a court proceeding initiated under AS            
 18.15.136 or 18.15.137 may elect to have the hearing open or closed           
 to the public."; and on page 9, lines 15-16, delete all material.             
 CHAIRMAN PORTER asked if there was an objection to amendment one              
 Hearing none, the amendment was adopted.  Chairman Porter called              
 Kristen Bomengen of the Attorney General's Office to testify.                 
 primarily at the meeting to answer any legal questions that may               
 come up regarding the bill.  She commented that to prevent the                
 legal dilemma at the present time, the department's medical                   
 officers have options under the current statute to issue                      
 examination orders and quarantine orders.  Ms. Bomengen said if the           
 person doesn't understand the seriousness of their illness, and for           
 some reason doesn't wish to or doesn't comply with those orders,              
 then the department, under the current statutes, is required to               
 file a criminal charge and charge them with a misdemeanor offense.            
 MS. BOMENGEN said they did encounter that circumstance in the late            
 part of 1994, and the department found the court responded rather             
 awkwardly to finding that an individual in a medical office issued            
 an order and then the court was presented with a criminal offense             
 for not complying with that order.  She stated the court order is             
 designed to address the steps that people may reasonably expect               
 between the initial issue for the medical order and the eventual              
 requirement they remain in quarantine.  She also supported the                
 inclusion of the amendment because as the additional steps were               
 added into the bill, it was found the criminal penalties didn't               
 serve any purpose as all of the same aims could be achieved by the            
 means already there.                                                          
 Number 450                                                                    
 REPRESENTATIVE GREEN brought up Dr. Nakamura's statement regarding            
 the patient's completing treatment so they don't end up creating a            
 bacteria that is untreatable.  He asked if that was sufficient                
 grounds that, in effect, the person is placed in quarantine and               
 prevented his freedom.  He asked, "is there any possibility of a              
 problem with invasion of his rights?"                                         
 MS. BOMENGEN replied that under the steps outlined under the                  
 proposed statute, the department should be able to address those              
 circumstances.  Then, when there was a case where the person had              
 lapsed in the drug regimen and continued to show signs of the                 
 disease in samples that were taken, the court had an understanding            
 of what that public health problem became.  She said that with this           
 bill, the steps were available now to outline the problems to the             
 REPRESENTATIVE GREEN expressed his concern that the courts might              
 again overrule this.                                                          
 MS. BOMENGEN answered certainly, every case is determined by its              
 facts and how they fit with the law.  She said in designing this              
 law, they looked to other states.  There is one other state case              
 that has upheld a continued extended quarantine in a case where an            
 individual continually failed to maintain the medical regimen.  Ms.           
 Bomengen said certainly they would invoke the case under a similar            
 law constructed to support the enforcement for public safety                  
 Number 490                                                                    
 REPRESENTATIVE GREEN asked if this would also circumvent the                  
 possibility of leaving the state if person A is under quarantine              
 and decides that he wants to go to Oregon, for instance.                      
 MS. BOMENGEN said she does not believe there is anything in this              
 bill that would carry that explicit function, but if the department           
 knew of the plans being made, the department does have the option             
 of seeking an emergency detention in very short order so that                 
 without contacting the party, there would be an order from the                
 judge to have the person picked up and detained.  She said it will            
 go far enough so when there is sufficient information available for           
 the department to respond, it will allow them to do so.  Ms.                  
 Bomengen stated that is something not available in the present law.           
 Number 500                                                                    
 REPRESENTATIVE TOOHEY inquired about the transportation with the              
 airlines, that they can also refuse service to someone with a                 
 communicable disease.                                                         
 MS. BOMENGEN said it is her understanding that if airlines are                
 aware there is a public health risk, they can refuse passage to a             
 CHAIRMAN PORTER asked if there were other questions, or statements.           
 Hearing none, public testimony was closed.  The Chairman asked the            
 wish of the committee.                                                        
 REPRESENTATIVE VEZEY moved to pass CSHB 274(JUD) out of the House             
 Judiciary Committee.                                                          
 CHAIRMAN PORTER asked if there were any objections.  Hearing none,            
 CSHB 274(JUD) was passed out of the House Judiciary Committee.                
 CHAIRMAN PORTER adjourned the meeting at 3:25 p.m.                            

Document Name Date/Time Subjects