Legislature(1995 - 1996)
02/05/1996 01:03 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE February 5, 1996 1:03 P.M. MEMBERS PRESENT Representative Brian Porter, Chairman Representative Joe Green, Vice Chairman Representative Con Bunde Representative Bettye Davis Representative Al Vezey Representative Cynthia Toohey Representative David Finkelstein MEMBERS ABSENT None COMMITTEE CALENDAR HOUSE BILL NO. 419 "An Act relating to the disposal of property, including firearms and ammunition." - CSHB 419(STATE AFFAIRS) PASSED OUT OF COMMITTEE HOUSE JOINT RESOLUTION NO. 52 "Relating to the creation of a new United States Court of Appeals for the Twelfth Circuit." - HJR 52 PASSED OUT OF COMMITTEE HOUSE BILL 75 "An Act relating to vehicle theft and the consequences of vehicle theft including revocation of a driver's license, privilege to drive, or privilege to obtain a license; amending Rule 32.1, Alaska Rules of Criminal Procedure; and providing for an effective date." - CSHB 75(STATE AFFAIRS) PASSED OUT OF COMMITTEE PREVIOUS ACTION BILL: HB 419 SHORT TITLE: AGENCY DISPOSAL OF PROP., INCL. FIREARMS SPONSOR(S): REPRESENTATIVE(S) KOTT,Ogan,Foster,Barnes,Sanders,Willis,Toohey Vezey,Kelly,Phillips,James,Bunde,Williams JRN-DATE JRN-PG ACTION 01/12/96 2438 (H) READ THE FIRST TIME - REFERRAL(S) 01/12/96 2438 (H) STATE AFFAIRS, JUDICIARY 01/16/96 2457 (H) COSPONSOR(S): OGAN 01/19/96 2495 (H) COSPONSOR(S): FOSTER, BARNES 01/22/96 2512 (H) COSPONSOR(S): SANDERS, WILLIS, TOOHEY 01/24/96 2529 (H) COSPONSOR(S): VEZEY, KELLY 01/26/96 2548 (H) COSPONSOR(S): PHILLIPS, JAMES 01/30/96 2567 (H) STA RPT CS(STA) NT 3DP 1DNP 3NR 01/30/96 2567 (H) DP: JAMES, WILLIS, OGAN 01/30/96 2567 (H) DNP: ROBINSON 01/30/96 2568 (H) NR: PORTER, GREEN, IVAN 01/30/96 2568 (H) FISCAL NOTE (ADM) 01/30/96 2568 (H) ZERO FISCAL NOTE (DPS) 02/07/96 2646 (H) JUD RPT CS(STA) NT 4DP 1DNP 2AM 02/07/96 2647 (H) DP: PORTER, VEZEY, GREEN, TOOHEY 02/07/96 2647 (H) DNP: FINKELSTEIN 02/07/96 2647 (H) AM: BUNDE, B.DAVIS 02/07/96 2647 (H) FISCAL NOTE (ADM) 1/30/96 02/07/96 2647 (H) ZERO FISCAL NOTE (DPS) 1/30/96 02/07/96 2647 (H) REFERRED TO RLS 02/09/96 2701 (H) RULES TO CALENDAR 2/9/96 02/09/96 2701 (H) READ THE SECOND TIME 02/09/96 2701 (H) STA CS ADOPTED UNAN CONSENT 02/09/96 2702 (H) ADVANCED TO THIRD READING 2/12 CALENDAR 02/09/96 2708 (H) COSPONSOR(S) BUNDE, WILLIAMS 02/12/96 2734 (H) READ THE THIRD TIME CSHB 419(STA) 02/12/96 2735 (H) PASSED Y28 N6 E6 02/12/96 2735 (H) NAVARRE NOTICE OF RECONSIDERATION BILL: HJR 52 SHORT TITLE: CIRCUIT COURT OF APPEALS FOR 12TH CIRCUIT SPONSOR(S): REPRESENTATIVE(S) PORTER,Rokeberg,Green JRN-DATE JRN-PG ACTION 01/09/96 2392 (H) READ THE FIRST TIME - REFERRAL(S) 01/09/96 2392 (H) STATE AFFAIRS, JUDICIARY 01/10/96 2404 (H) COSPONSOR(S): ROKEBERG 01/30/96 2563 (H) STA RPT 6DP 1NR 01/30/96 2563 (H) DP: JAMES, PORTER, GREEN, ROBINSON 01/30/96 2563 (H) DP: WILLIS, OGAN 01/30/96 2564 (H) NR: IVAN 01/30/96 2564 (H) ZERO FISCAL NOTE (LAW) 01/30/96 (H) STA AT 08:00 AM CAPITOL 102 01/30/96 (H) MINUTE(STA) 02/05/96 (H) JUD AT 01:00 PM CAPITOL 120 02/07/96 2641 (H) JUD RPT CS(JUD) 6DP 1NR 02/07/96 2641 (H) DP: VEZEY, B.DAVIS, PORTER, GREEN, BUNDE 02/07/96 2641 (H) DP: TOOHEY 02/07/96 2641 (H) NR: FINKELSTEIN 02/07/96 2641 (H) ZERO FISCAL NOTE (LAW) 1/30/96 02/07/96 2641 (H) REFERRED TO RULES 02/09/96 2707 (H) COSPONSOR(S): GREEN BILL: HB 75 SHORT TITLE: INCREASED PENALTIES FOR JOYRIDING SPONSOR(S): REPRESENTATIVE(S) SANDERS,Finkelstein,Kott JRN-DATE JRN-PG ACTION 01/06/95 40 (H) PREFILE RELEASED 01/16/95 40 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 40 (H) STATE AFFAIRS, JUDICIARY, FINANCE 01/25/95 136 (H) COSPONSOR(S): FINKELSTEIN 01/19/96 2494 (H) COSPONSOR(S): KOTT 01/25/96 (H) STA AT 08:00 AM CAPITOL 102 01/25/96 (H) MINUTE(STA) 01/26/96 2540 (H) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS 01/26/96 2540 (H) STATE AFFAIRS, JUDICIARY, FINANCE 01/30/96 2564 (H) STA RPT 5DP 2NR 01/30/96 2565 (H) DP: JAMES, PORTER, GREEN, WILLIS, OGAN 01/30/96 2565 (H) NR: IVAN, ROBINSON 01/30/96 2565 (H) 9 FNS (ADM, 2-CORR, 3-DHSS, LAW, 2-DPS) 01/30/96 2565 (H) 2 ZERO FISCAL NOTES (LAW, DPS) 01/30/96 (H) STA AT 08:00 AM CAPITOL 102 01/30/96 (H) MINUTE(STA) 02/05/96 (H) JUD AT 01:00 PM CAPITOL 120 02/07/96 2642 (H) JUD RPT 7DP 02/07/96 2642 (H) DP: VEZEY, FINKELSTEIN, B.DAVIS, GREEN 02/07/96 2642 (H) DP: BUNDE, TOOHEY, PORTER 02/07/96 2642 (H) FISCAL NOTE (COURT) 02/07/96 2642 (H) 8 FNS (2-DPS, ADM, 2-DOC, 3-HES) 1/30/96 02/07/96 2642 (H) FISCAL NOTE (LAW) 1/30/96 02/07/96 2643 (H) 2 ZERO FISCAL NOTES (LAW, DPS) 1/30/96 02/07/96 2643 (H) REFERRED TO FIN 02/13/96 (H) FIN AT 10:00 AM HOUSE FINANCE 519 02/15/96 (H) FIN AT 01:30 PM HOUSE FINANCE 519 WITNESS REGISTER REPRESENTATIVE PETE KOTT Alaska State Legislature State Capitol, Room 432 Juneau, Alaska 99801 Telephone: (907) 465-3777 POSITION STATEMENT: Prime Sponsor of HB 419 BRUCE BOTELHO, Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-2075 POSITION STATEMENT: Testified in support of HJR 52 REPRESENTATIVE SANDERS Alaska State Legislature State Capitol, Room 414 Juneau, Alaska 99801-1182 Telephone: (907) 465-4945 POSITION STATEMENT: Testified as sponsor of HB 75 MICHAEL KORKEL, President Alaska Peace Officers Association 1979 Peger Road Fairbanks, Alaska 99709 Telephone: (907) 451-5316 POSITION STATEMENT: Testified in support of HB 75 DEL SMITH, Deputy Commissioner Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 Telephone: (907) 465-4322 POSITION STATEMENT: Testified in support of HB 75 JOHN NEWELL, Police Chief City and Borough of Sitka 100 Lincoln Street Sitka, Alaska 99835 Telephone: (907) 747-3294 POSITION STATEMENT: Testified in support of HB 75 L. DIANE WORLEY, Director Division of Family & Youth Services P.O. Box 110630 Juneau, Alaska 99811-0630 Telephone: (907) 465-3191 POSITION STATEMENT: Testified in support of HB 75 ANNE D. CARPENETI, Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Testified in support of HB 75 JERRY SHRINER, Special Assistant Department of Corrections 240 Main Street, Suite 700 Juneau, Alaska 99801 Telephone: (907)465-4640 POSITION STATEMENT: Provided information on HB 75 ACTION NARRATIVE TAPE 96-14, SIDE A Number 000 CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting to order at 1:03 p.m. Members present at the call to order were Representatives Bunde, Toohey, and Vezey. Representatives Green, Davis and Finkelstein attended the meeting at a later time respectively, 1:09 p.m., 1:15 p.m. and 1:15 p.m. CHAIRMEN PORTER stated that there were three bills for consideration before the Judiciary committee, HB 419, HJR 52, and HB 75. He announced that HB 154 had been returned to the sponsor so that he could respond specifically to the concerns of the state as presented in the last meeting. A committee substitute will be drafted to address these concerns. Chairman Porter noted that there would be additional testimony once this has been accomplished. HB 419 - AGENCY DISPOSAL OF PROP., INCL. FIREARMS Number 190 REPRESENTATIVE PETE KOTT came forward to present HB 419. He stated that it was a simple bill to understand. The purpose of the bill was to establish in statute, a clear policy regarding the disposition of hand guns by the state. The definition of hand guns under this legislation would mean ones declared in excess, confiscated, found or in some instances, forfeited. REPRESENTATIVE KOTT declared this legislation was needed because within the past six months the administration has oscillated about what to do with these types of handguns. A current provision allows for "long irons" or shot guns to be sold. Basically, this bill deals strictly with hand guns and outlines for the administration disposition procedures. Representative Kott referred to section 4 under "disposal," where it outlines that the state can either sell or trade these safe firearms, which are useable and have some financial value, to a federally licensed firearms dealer. This dealer can then resell these guns to anyone who meets the parameters under the Brady bill and other state and federal regulations. REPRESENTATIVE KOTT pointed out that a CS of HB 419 was adopted in State Affairs. This CS returned to the status quo what municipalities are allowed to do. It gives them the option of selling guns to the public. The intent of the bill was not to infringe on what's been done at the municipal level. Number 356 REPRESENTATIVE CYNTHIA TOOHEY asked if the municipalities had the right not to do it. REPRESENTATIVE KOTT responded that this was correct. Number 378 REPRESENTATIVE CON BUNDE referred to some suggested amendments and concerns of the Outdoor Council, one was to allow the transfer of these firearms to a hunter education program and the other was for those individuals who pay their fine, they be allowed to have their firearm returned to them. The council also asked that the amount of the fine go to the Wildlife Safeguard Program. REPRESENTATIVE KOTT stated that he had not seen these suggestions yet. On the proposed fines issue, he pointed out that this may be tough to implement, especially the concept segregate and disburse money to a particular agency. While it may seem like a good feature to return firearms back to their owners and a very easy sounding prospect, he was not familiar with the procedure. Number 516 REPRESENTATIVE BUNDE pointed out that it wasn't fair to require Representative Kott to respond to issues he had yet to review. He stated he would pass these suggestions on to Representative Kott and if beneficial amendments arise out of these efforts they can be dealt with at a later time during the legislative process. Number 670 REPRESENTATIVE BUNDE moved to pass CS HB 419 (State Affairs) from the Judiciary Committee with individual recommendations and its' attached fiscal note. Representative Vezey objected for the purposes of asking for the division of the house. A roll call vote was requested. Representatives Green, Bunde, Toohey, Vezey and Porter voted in favor of the motion. CS HB 419 (State Affairs) was so moved. HJR 52 - CIRCUIT COURT OF APPEALS FOR 12TH CIRCUIT Number 768 CHAIRMAN PORTER introduced HJR 52 as sponsor. This resolution would be sent to the U.S. Congress in support of legislation there which seeks to divide the current 9th Court of Appeals into two courts. The federal level 9th Court of Appeals has jurisdiction over Alaska. Chairman Porter added that the 9th circuit is one of 11 circuits and it was established in 1911. It is comprised of virtually the entire western part of the United States and it has become unwieldy in size. The ability to run a consistent decision making body of a court of appeals has become compromised. CHAIRMAN PORTER continued to say that there have been concerns about the 9th Circuit's size and considerations for dividing it into two have been around for a while. In 1970 there was a federal study done on the 9th and 5th circuit. The 5th circuit, as a result of this study, was divided and the 11th Circuit Court of Appeals was established. The 9th circuit was kept intact, but instead of all of the judges hearing the respective cases, groups of judges within the 9th circuit hear them instead, which results in inconsistent decisions being handed down. This makes it difficult and expensive for those states which it serves to do business, let alone to interpret what the law really says. CHAIRMAN PORTER added that the seat of the 9th Circuit Court is in California. The administrator lives in San Francisco, most of the judges in Los Angeles. Since these judgeships are lifetime appointments, they spend a lot of time in these areas. He offered an anecdote as an illustration about this alienation from Alaska. In recent discussions in the 9th Circuit regarding many Alaska cases now before the court, in trying to define rural as applied to Alaska, they sought help to define it by referring to the Milepost Magazine. They proclaimed that everyone knows that a rural district is one where there is not a lot of population and it's got a lot of agriculture and ranches. This is the extent to which how out of touch the 9th Circuit is with the state of Alaska. CHAIRMAN PORTER summed up by saying that Alaska, Washington, Oregon, Idaho and Montana would become the 12th Circuit Court of Appeals. Number 1045 BRUCE BOTELHO, Attorney General, Department of Law, stated that the administration fully supports HJR 52. He said that there were two problems with the existing 9th Circuit Court from their perspective. First, the 9th circuit is the largest in the country and secondly, it is the most back logged circuit in the country, since it is dominated by California. There are currently 28 judges on the court, 19 of them are California based judges. This is pertinent, not necessarily because Alaska has anything directly against California, but it is a recognition that it should be a reasonable expectation that judges should share common experiences with the people over whom they are passing judgment. Mr. Botelho cited the case used by Chairman Porter concerning the definition of rural in the Kenaitze case. MR. BOTELHO went into greater detail regarding this case. He referenced part of the language to help illustrate this problem. The state of Alaska in adopting regulations on the concept of rural in the context of ANILCA, everyone understood rural to mean bush Alaska. In implementing this interpretation the Alaska Board of Fish and Game interpreted rural to exclude areas where the predominate economic characteristic was a non-cash economy. The consequence of this was that the Kenai peninsula was ruled not to be a rural area. This matter was then taken to court. U.S. District Court being very familiar with Alaska and also familiar with the history of ANILCA ruled in the state's favor. They felt this was a reasonable interpretation, hence an appeal was undertaken to the 9th Circuit Court. MR. BOTELHO quoted the actual language from part of the 9th Circuit Court's opinion in the context of Alaska being unusual if not, exotic. "The state's definition would exclude practically all areas of the United States that we think of as rural, including virtually the entirety of such farming and ranching states as Iowa and Wyoming. The term rural is not difficult to understand. It is not a term of art. It is a standard word in the English language commonly understood to refer to areas of the country that are sparsely populated, where the economy centers on agriculture or ranching." MR. BOTELHO stated again that the panel was constituted primarily of California judges, was a three member panel, which rendered this opinion. In fact most of the panels are constituted of judges from California and who are removed from the rural experience, certainly the Alaskan and Northwestern experience. This is one problem. The second problem is simply the delay. He noted that one tends to focus and put priority on those issues they are most familiar with and those closest to home. Those Alaskan cases which are of utter importance don't appear to have the same type of priority as those arising out of the chief contributor to the court's docket, California. MR. BOTELHO thought the best case in point was the Katie John case. All of us have an interest in having a case decided quickly, no matter what side someone is on. Even after expedited consideration was granted in this case, it took 13 months after everything the lawyers could have done, had been done and this information had been submitted for a decision resolution. It took another nine months for the panel to make a clarification on reconsideration. The 9th Circuit has been notoriously the circuit with the most delay. The focus of the federal court has been to figure out innovative ways to expedite consideration in the 9th circuit. They have made some improvements so that the average case supposedly takes 15 months after it's been submitted. It is still woefully slower than the other circuits. As a sovereign state Alaska has the right to have it's issues decided much more expeditiously than the current makeup which of the 9th circuit would permit. MR. BOTELHO stated that there had been some developments which suggests modifications to the resolution. When the bill reached the Judiciary Committee in the U.S. Senate there were other states who were enthused about getting out of the 9th circuit. On December 7, 1995 on the floor, both Arizona and Nevada requested to abandon the 9th circuit as well. As part of the price to get this bill out of committee, Phoenix had been identified as the new center for this new 12th circuit. He suggested that the resolution before the Alaska Judiciary be modified to express Alaska's desire that the headquarters be located in the Northwest as was originally contemplated. MR. BOTELHO continued that on Thursday of this last week, HR 2935 was introduced by Congressman Don Young as a companion bill promoting the 12th circuit and it's in the original form. This would constitute the five northwestern states which were originally intended to be part of the Senate 956 and would allow that the 9th Circuit Court be headquartered in Portland. He stated, "thus again events have overtaken the resolution not in concept, but in terms of very specific events which should be tailored to modifying HJR 52." MR. BOTELHO stated that he had made contact with his colleges in the other northwestern states and while half of them are Republican and the other Democrat, they unanimously supported the division of the circuit. This is not a partisan issue. Number 1493 REPRESENTATIVE CON BUNDE asked what steps these states have taken to pursue the establishment of this 12th Circuit Court. MR. BOTELHO answered that virtually every state has signed on to the senate bill, but in terms of the house bill he hadn't yet reviewed it to see who else has signed on. Senator Gordon of Washington state is the primary sponsor of S956 and both of Alaska's senator have signed on, as have at least one senator of the other states involved. Number 1532 REPRESENTATIVE CYNTHIA TOOHEY asked if the bill language for HJR 52 would be rewritten to just include northwestern states. CHAIRMAN PORTER said that he would ask the committee to conceptually change this bill now and have the bill drafter put in this conceptual amendment before it is moved out of committee. Number 1570 REPRESENTATIVE BETTYE DAVIS made a motion to conceptually change HJR 52 as outlined, which would allow that the headquarters of 12th circuit be in the Pacific Northwest and it would state that the Judiciary Committee supports the federal companion bill HR 2935 as proposed. Hearing no objection HJR 52 was so amended. Number 1697 REPRESENTATIVE AL VEZEY made a motion to move HJR 52 from the Judiciary Committee with individual recommendations as amended. Hearing no objection it was so moved. HB 75 - INCREASED PENALTIES FOR JOYRIDING Number 1748 CHAIRMAN PORTER presented HB 75 regarding car theft and he noted the sponsor, Representative Sanders. REPRESENTATIVE JERRY SANDERS stated that HB 75 is not about joyriding or mischief, but about vehicle and auto theft. In 1995 there were over 3,000 vehicle thefts statewide in Alaska. He noted that there was a vehicle theft bill last year. It went to the governor's desk and was vetoed. If this had past last July, he wondered how many of the roughly 1500 vehicle thefts could have been avoided or how much restitution would have been paid. REPRESENTATIVE SANDER said he was attempting to craft a middle ground bill which the governor will approve and one which will pass through the legislature in order to serve the public. The public needs control over these auto thefts, especially with the juvenile incidences of this crime, there is no control, and in relation to adults, it's weak. CHAIRMAN PORTER pointed out that a CS was before the committee which incorporates the work which was done on the bill from last year. The original parts of bill from last year in the CS were those sections which would make first offense car theft a felony, the provisions which were in the governor's bill and the provision that juveniles who commit the offense of car theft would be sent directly to district court to face an A misdemeanor offense. Number 1910 REPRESENTATIVE BUNDE moved to adopt the CS for HB 75(JUD). REPRESENTATIVE FINKELSTEIN asked again about the differences between the CS and the bill. CHAIRMAN PORTER explained that the CS basically was the moving up of joy riding in general terms for adults from a misdemeanor to a felony. The bill which came from State Affairs was this bill. The Judiciary CS with it's pending motion, incorporates into this, the bill from last year with sections affecting juveniles as outlined. REPRESENTATIVE FINKELSTEIN requested that maybe someone from the Attorney General's office address this issue, since this newest format seems to be somewhat controversial. He noted that the Judiciary Committee worked extensively on this issue last year and it ended up in a confused situation because of the mixed messages expounded in the testimony. Number 2015 CHAIRMAN PORTER hearing no objection moved the CS for HB 75(JUD) version (G) in front of the committee as a working document. Number 2040 MICHAEL KORKEL testified by speaker phone from Fairbanks in support of HB 75. He stressed that people make two major investments in their life, one being their house, the other their vehicle. His organization applauded the steeper penalty from a misdemeanor to a felony. He noted that SB 220 and HB 75 do not seem to be very different from one another. He did outline one concern they had regarding the language about the offense in the second degree under the circumstances of theft other than a motor vehicle, which he assumed this could mean a snow machine or a three wheeler. He felt as though these vehicles did not constitute the same penalties. Number 2192 DEL SMITH, Deputy Commissioner, Public Safety testified in support of creating a felony offense for stealing an automobile as outlined in HB 75. The area in which they differ with the legislation is that this felony offense when applied to a juvenile, should stay in the juvenile court. He believed that auto theft should be punished strongly and he believed there was a chance that if these cases were brought to District Court there might be an opportunity for these juveniles to not be prosecuted because the court might not have the resources to do so and secondly, the adult system right now is not running very efficiently as it is. Number 2363 REPRESENTATIVE FINKELSTEIN asked Mr. Smith to comment on the changes in the new CS before the committee, more specifically about the elimination of the automatic waiver, the treatment of off-road vehicles and section 9, which Representative Finkelstein had not had a chance to fully understand at the moment. Number 2390 MR. SMITH responded that as to the automatic waiver, the Department of Public Safety and law enforcement in general, did not support this automatic waiver to District Court of youthful offenders who steal cars. As to the off-road vehicles to be excluded, the department agrees that this should not be a felony. CHAIRMAN PORTER responded to Representative Finkelstein's concerns about section 9, which is existing law. This law provides for traffic offenses of juveniles be presented to District Court and misdemeanor car theft would be added to this provision. TAPE 96-14, SIDE B 000 CHAIRMAN PORTER stated that under this bill there is the availability for increased sentencing after second and subsequent offenses, but this would remain a misdemeanor. It would remain in the adult court system, as opposed to returning it to the juvenile court system. Number 028 REPRESENTATIVE BUNDE asked Mr. Smith for a percentage of car theft incidences which involve juveniles rather than adults. MR. SMITH stated that in 1995 there were 604 people were arrested for joyriding. Of these, approximately 400 of them were adults, hence about one-third of these numbers were juveniles. He pointed out that this was true for those which were caught. In Anchorage of the same year, there were approximately 2100 vehicles stolen, and out of this number the criminals were not apprehended. It would be impossible to determine the juvenile numbers for these statistics. 097 REPRESENTATIVE VEZEY asked of the 2100 vehicles, how many were recovered. MR. SMITH said about 90 to 95 percent of the cars were recovered. Number 250 JOHN NEWELL, Chief of Police, City and Borough of Sitka, testified by speaker phone in favor of HB 75. He stated that he's the President of the Alaska Association of the Chiefs of Police as well. He felt as though Alaska was been long overdue in making auto theft a felony. Alaska needs stiffer penalties to help act as a deterrent to those who would take the property of another person. MR. NEWELL recommended that the automatic waiver for juveniles not be included in this legislation. He pointed out that there was a definite problem in the system where they want to treat juvenile's on the arrest and trial side as juveniles, but when they get them incarcerated the system requires that they be treated as juveniles. He pointed out that the system already allows for in specific situations, that a defendant be considered an adult rather than a juvenile. Number 377 DIANE WORLEY, Director, Division of Family and Youth Services (DFYS) testified in support of HB 75 in making vehicle theft a felony. She referred to research which had been conducted and printed on hand-outs for the committee, regarding how the department currently address felonies in the present juvenile probation system. MS. WORLEY felt as though misinformation existed in relation to what the department does with juveniles. The first page of this hand-out gave a breakdown of different violations or referrals which the department receives, showing that 23.3 percent of juveniles have committed felonies. By adding car theft as a felony offense, this would increase the felony charges by 10 percent, ie. adding 200 felonies into the system. MS. WORLEY referred to the second page of this handout. The category as labeled N/A related to those juveniles who are referred to the department through written report. The department does not see the child directly through this means. The categories listed below this first heading were those children who DFYS retains custody of after an incident. Seventy-eight percent of all juveniles are referred to the department by written report. Of this number 18.5 percent are detained at the time of the incident. MS. WORLEY moved onto the next chart. She noted, of the intakes received, 40 percent were petitioned to court for all cases. 55.2 percent were petitioned to court for those with a prior referral to the department. The remainder included a variety of situations, for instance, the category labeled "adjusted with referral" could mean that this individual might go to youth court, mediation, restitution, etc. "Adjusted with conference" would mean that parents were involved and they were taking action to participate to make sure there was some type of follow through with restitution, community work service, etc. She outlined some additional categories for the pleasure of the committee. MS. WORLEY referred to the next page. This information dealt with those instances once the juvenile goes to court. These would include all the petitioned cases. She gave the breakdown as follows: 1.4 percent of all cases were waived to adult court, a minuscule part are withdrawn, 62.2 percent were adjudicated, 9.2 percent were held in abeyance or suspended, 2.7 were diverted, 11.3 percent were dismissed and 12.6 percent were in process. MS. WORLEY went on to add with the current felonies in the department, a large percent of them do go to court and are adjudicated with resulting accountability of their actions. In discussing these in the context of the automatic waiver of district court, one of the advantages in the juvenile system is that the department monitors these kids, with longer terms of probation. By keeping them in the juvenile system they are monitored more closely and the parents become more involved and the department tries to get as much restitution as possible, etc. Number 702 REPRESENTATIVE JOE GREEN asked about the recidivism rate of these juveniles. MS. WORLEY stated that she didn't have this specific number, but did refer him to the felony numbers. She cited that 51 percent of the felonies referred to the department last year were individuals who already had a prior offense, but not necessarily felony in nature. REPRESENTATIVE GREEN noted the horrendous fiscal note attached to this bill and asked Ms. Worley what the department's restitution record was like. MS. WORLEY felt as though the department does a good job in this area. The department really pushes for restitution in any crime, in either the form of money or under a work pay-back situation. Number 796 CHAIRMAN PORTER stated that if the committee passed just the original State Affairs bill, they would be making first offense car theft for anyone a felony. If a juvenile violated this statute they would technically be charged under a petition for delinquency. This would be a regular juvenile handling of an offense like this. But, the seriousness of the offense that this petition alleges would rise to the felony level as opposed to the present misdemeanor level. Technically, they're not charged with a misdemeanor or a felony, they're charged as a juvenile who is treated as a potential delinquent, as opposed to having committed a specific offense that amounts to a crime. Number 876 REPRESENTATIVE BUNDE asked about the 51 percent of juveniles who had prior referrals, and wondered how many of these had been charged with joy-riding. Number 900 MS. WORLEY stressed that this would overburden their computer ability, because car theft is now a misdemeanor, which is lumped in the criminal mischief category. She stated that during fiscal year 1994, 205 auto thefts were committed by juveniles. REPRESENTATIVE FINKELSTEIN was a bit confused about the disposition of these cases. If a juvenile was referred to the department and convicted as a minor under a misdemeanor offense, if they were an adult, this would be considered a felony. How would the department categorize these youths under a felony offense under this new legislation. CHAIRMAN PORTER pointed out that if these juveniles committed a felony they would not go through the Department of Family and Youth Services. Presently, if a sixteen year old has too much to drink and steals a car, he'd be charged with driving while intoxicated (DWI) and car theft. He would go to adult court for the DWI and juvenile court for the car theft. Number 1008 REPRESENTATIVE FINKELSTEIN asked Ms. Worley if she thought these juveniles, regardless of age were best served in all cases to be referred to the adult system or should some of them stay in the juvenile system. MS. WORLEY responded that she does not support an automatic waiver to adult court. She believed that some of the juveniles in the system are still kids. On a developmental level, their emotional level, intellectual level, etc., they are still kids. They need to be treated as kids, but there are some juveniles who should be waived. The department has this option. The majority of these juveniles would be better served by staying in the juvenile system for all the reasons she stated earlier. Number 111 CHAIRMAN PORTER referred to the historical perspective of this automatic referral concept. The concern was perceptually or not, that misdemeanor juvenile offenders were not getting serious sanctions as quickly as they should have and this waiver was a way to do this. He understood the department treated felony crimes for juveniles more severely than misdemeanors, but in reading the attached fiscal note, if this is to take place the department would need more resources. He questioned whether or not the department could do this with limited funds. MS. WORLEY stated that the Chairman was correct. Without resources the ability to follow through in a quick and decisive manner would be compromised. The department has already extended it's staff as thinly as possible, particularly in juvenile proceedings. First, a lot will depend on the child being charged whether or not they understand the gravity of being waived directly to adult court, this being part of the intent of the pending legislation. Juveniles are not as frightened of the system as were those in the past. There is also not a lot of parental involvement in these kid's lives. MS. WORLEY added that without additional resources, the department will certainly not be able to act on these cases as quickly as they would like. They would prioritize these felonies along with the other cases as they currently do. The more serious offenses would be dealt with first. Number 1425 REPRESENTATIVE GREEN asked if this type of follow through would be applied to those juvenile's with the high rate of recidivism. MS. WORLEY said this would depend upon what their previous involvement with the system had been. REPRESENTATIVE GREEN asked if this population had already gone through the types of monitoring which Ms. Worley outlined, such as parent involvement, etc. Would these types of crimes have this same benefit. MS. WORLEY said again this would depend upon the crime of their prior referral. It depends on the level of their offense. Number 1573 ANN CARPENETI, Assistant Attorney General, Department of Law, testified in support of HB 75. The department supports the CS of HB 75, more specifically increasing the offense of car theft from a misdemeanor to a felony, as well as, increasing the fine and jail time. The changes in the vehicle theft in the first and second degree have been improved. The department does not agree with the automatic waiver of children to adult court as misdemeanors. Ms. Carpeneti cited that there is no probation supervision for misdemeanants in the state of Alaska. Children would go to court once, be sentenced and that would be it. MS. CARPENETI continued by stating that automatically waiving vehicle theft to district court was an anomaly in the treatment of juveniles who steal things. Juveniles who steal cars would be treated differently than juveniles who steal other property. The problem with the waiver is that it waives children of all ages. If a juvenile was sent to district court automatically he or she would have the right to a jury trial. Jury trials are composed of adults and Ms. Carpeneti added it would be interesting to see a young child tried by a panel of adults. She closed by stating that there's a question of resources as well. Number 1748 REPRESENTATIVE BUNDE asked what dollar amounts apply at the different levels of theft for an adult. MS. CARPENETI responded that $500 was the difference between a felony and a misdemeanor. REPRESENTATIVE FINKELSTEIN asked if the department had a problem with the differentiation between the vehicle types cited in the legislation. MS. CARPENETI said that no they didn't and in fact the governor's bill for vehicle theft provided that first offense of an all terrain vehicle or a snow machine, which resulted in damage to the vehicle of $500 or more, would be a felony. This CS makes offenses that would be felonies instead, misdemeanors, by waiving automatically juveniles to district court. Actually, first offense automobile theft and causing damage of $500 or more is a felony now and would be dealt in district court as a misdemeanor for a juvenile. Number 1895 REPRESENTATIVE FINKELSTEIN noted that this is all very confusing. He added that this testimony was helpful since it's hard to realize the different categories of offenses in existing law. Number 1940 CHAIRMAN PORTER closed the public hearing. Chairman Porter said he had spoken to the sponsor and he, nor Chairman Portman were married to the CS which was just adopted. He said he was persuaded to a degree that DFYS will treat those juveniles, charged as juveniles, with the elements of a felony to a greater degree than in the past. REPRESENTATIVE BUNDE encouraged Chairman Porter to find this CS more attractive. In response to the argument that district court was overloaded, he note how the juvenile system is incredibly overloaded too. He added that these young people think juvenile court is a joke. To use the old vernacular, "they want to make their bones, they want to hit the big time soon, let's not slow them down." He ended by stating that kids live up to the expectations we place on them. Number 2198 REPRESENTATIVE DAVIS hoped that the committee would consider not supporting this bill in it's entirety. She was concerned about how young some of these juveniles are. She also raised the question of where these juveniles would be housed. Once they go through the court system, she noted that they'd be obligated to put these juveniles in adult jails. By putting juveniles in adult jails, they're exposed to an adult population which would initiate them into a more serious crime world. CHAIRMAN PORTER said that those juveniles who are waived into adult court do serve time in adult facilities, but those who for example accrue a second DWI, they would serve their time in MacLaughlin. Number 2415 REPRESENTATIVE BUNDE pointed out that MacLaughlin presently is overcrowded as well. TAPE 96-15, SIDE A Number 000 REPRESENTATIVE GREEN voiced his concerns about the large fiscal note attached to this CS. He asked why this couldn't be toughened up to require more restitution provisions to help offset the cost to the department. CHAIRMAN PORTER asked if this fiscal note was attached to the State Affairs CS version or the present Judiciary CS version. JERRY SHRINER, Special Assistant, Department of Corrections noted that this CS was attached to the State Affairs version. The major portion of the money in this fiscal note was related to the second time felony theft, which makes this a mandatory two year sentence. Number 211 CHAIRMAN PORTER pointed out that the State Affairs CS changed this. The fiscal note may need to be updated. The State Affairs CS left both first and second offense felonies at the (C) level. MR. SHRINER said it was his understanding that a second conviction as a (C) felony is a two year mandatory sentence. Chairman Porter then agreed that this was the case. Number 250 REPRESENTATIVE GREEN asked if these juvenile's permanent funds could be attached indefinitely, if they were unable to pay restitution. MR. SHRINER said that for the year which this person served their time, the department would recoup their respective permanent fund. REPRESENTATIVE GREEN noted that there was a definite disparity between the crime and how much a person is required to pay in restitution. CHAIRMAN PORTER pointed out that there's nothing to preclude a civil judgment in these types of case, but the defendant may not have the means to pay the amount of damages incurred. Number 400 REPRESENTATIVE FINKELSTEIN moved that the Judiciary CS be rescinded. He then brought up the issue of prosecutorial discretion and that the system has the right to let someone go completely, but they don't have the discretion to put the young offender in the more appropriate juvenile system with an automatic juvenile waiver. He thought that this prosecutorial discretion was gone. CHAIRMAN PORTER understood that if the adult prosecutor decided not to charge, for example, the six year old from stealing a car, it seemed to him that DFYS could deal with the case if it were referred to them from the standpoint of delinquency, as opposed to the crime of misdemeanor car theft. MS. WORLEY made a clarification about payment. Through DFYS they can order payment for housing of juveniles in their system. Number 535 REPRESENTATIVE FINKELSTEIN asked if there was any other area of law which provides for an automatic juvenile waivers for theft. Chairman Porter answered no. Representative Finkelstein said that his points were two in defense of his motion to rescind. One, the premeditated crime of stealing televisions doesn't allow for an automatic waiver. The second argument, is that after listening to testimony, there isn't anything inherently that says that the adult system serves better their purposes. CHAIRMAN PORTER said this issue was a close call for him, but he decided to support the motion to rescind the Judiciary CS. His personal experience with these issues is dated, he was impressed that law enforcement felt that juveniles shouldn't be automatically waived. Also, last year when they were discussing these issues, they didn't have this option that DFYS would monitor these felonious juveniles more closely. Number 877 REPRESENTATIVE VEZEY suggested that they maintain the automatic waiver, but leave an option in for the juvenile to prove that their worthy of rehabilitation. CHAIRMAN PORTER pointed out that this is the current state of the law in a waiver already. When the prosecution wants to ask for a waiver to adult court, it's not an automatic waiver. The burden of proof of worthiness is on the juvenile, but violent crimes are automatically waived. REPRESENTATIVE BUNDE withdrew his objection to waive the Judiciary CS version of HB 75. Number 1082 CHAIRMAN PORTER recognized the motion to rescind adopting the Judiciary CS. Hearing no objection it was so moved. The State Affairs CS was then before the committee. REPRESENTATIVE DAVIES made the motion to move the State Affairs CS for HB 75 from the Judiciary Committee. Hearing no objection it was so moved. ADJOURNMENT CHAIRMAN PORTER adjourned the House Judiciary meeting at 3:00 p.m.