Legislature(1997 - 1998)

04/15/1998 01:12 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                   April 15, 1998                                              
                     1:12 p.m.                                                 
MEMBERS PRESENT                                                                
Representative Joe Green, Chairman                                             
Representative Con Bunde, Vice Chairman                                        
Representative Brian Porter                                                    
Representative Norman Rokeberg                                                 
Representative Eric Croft                                                      
Representative Ethan Berkowitz                                                 
MEMBERS ABSENT                                                                 
Representative Jeannette James                                                 
COMMITTEE CALENDAR                                                             
HOUSE BILL NO. 473                                                             
"An Act relating to training and certification of fire fighters,               
fire instructors, and certain emergency responders; and providing              
for an effective date."                                                        
     - MOVED CSHB 473(JUD) OUT OF COMMITTEE                                    
HOUSE JOINT RESOLUTION NO. 1                                                   
Proposing an amendment to the Constitution of the State of Alaska              
relating to the duration of a regular session.                                 
     - MOVED HJR 1 OUT OF COMMITTEE                                            
HOUSE BILL NO. 122                                                             
"An Act relating to prisoner litigation, post-conviction relief,               
and sentence appeals and to execution on judgments against                     
prisoners' accounts; amending Alaska Rule of Administrative                    
Procedure 10(e),  Alaska Rule of Appellate Procedure 502(b), Alaska            
Rule of Civil Procedure 26, and Alaska Rule of Criminal Procedure              
35; and providing for an effective date."                                      
     - MOVED CSHB 122(JUD) OUT OF COMMITTEE                                    
HOUSE BILL NO. 452                                                             
"An Act relating to registration, disclosures, and reports by                  
certain nonprofit corporations."                                               
     - REMOVED FROM CALENDAR                                                   
HOUSE BILL NO. 324                                                             
"An Act relating to liens for municipal assessments for certain                
utility improvements."                                                         
     - SCHEDULED BUT NOT HEARD                                                 
(* First public hearing)                                                       
PREVIOUS ACTION                                                                
BILL: HB 473                                                                   
SHORT TITLE: FIRE TRAINING AND CERTIFICATION                                   
SPONSOR(S): STATE AFFAIRS                                                      
Jrn-Date    Jrn-Page           Action                                          
 3/24/98      2722     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 3/24/98      2723     (H)  JUDICIARY                                          
 4/08/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/08/98               (H)  MINUTE(JUD)                                        
 4/15/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
BILL: HJR  1                                                                   
SHORT TITLE: LIMIT LEGISLATIVE SESSION TO 90 DAYS                              
Jrn-Date    Jrn-Page           Action                                          
 1/13/97        21     (H)  PREFILE RELEASED 1/3/97                            
 1/13/97        21     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 1/13/97        21     (H)  STATE AFFAIRS, JUDICIARY, FINANCE                  
 4/01/97       900     (H)  COSPONSOR(S): KOHRING                              
 3/03/98               (H)  STA AT  8:00 AM CAPITOL 102                        
 3/04/98      2490     (H)  STA RPT  3DP 1DNP 2AM                              
 3/04/98      2490     (H)  DP: DYSON, VEZEY, HODGINS; DNP:                    
 3/04/98      2490     (H)  AM: JAMES, BERKOWITZ                               
 3/04/98      2490     (H)  2 FISCAL NOTES (LAA, GOV)                          
 3/27/98      2775     (H)  WITHDRAW FROM CMTE Y3 N23 E8 A6                    
 4/15/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
BILL: HB 122                                                                   
SHORT TITLE: PRISONERS: LITIGATION & DEBTS                                     
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                   
Jrn-Date    Jrn-Page           Action                                          
 2/10/97       292     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 2/10/97       292     (H)  STA, JUDICIARY, FINANCE                            
 2/10/97       292     (H)  4 ZERO FNS (2-ADM, COR, LAW)                       
 2/10/97       292     (H)  GOVERNOR'S TRANSMITTAL LETTER                      
 2/09/98      2269     (H)  STA REFERRAL WAIVED                                
 4/17/97      3035     (H)  JUD RPT  CS(JUD) NT 2DP 3NR                        
 3/11/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/11/98               (H)  MINUTE(JUD)                                        
 4/15/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
WITNESS REGISTER                                                               
KEVIN JARDELL, Legislative Administrative Assistant                            
   to Representative Joe Green                                                 
Alaska State Legislature                                                       
Capitol Building, Room 118                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4990                                                     
POSITION STATEMENT:  Testified on CSHB 473(JUD).                               
DAVE TYLER                                                                     
P.O. Box 3023                                                                  
Homer, Alaska 99603                                                            
Telephone:  (907)235-3155                                                      
POSITION STATEMENT:  Testified on CSHB 473(JUD).                               
PAT EGGERS, President                                                          
Alaska State Fire Fighters Association                                         
P.O. Box 2402                                                                  
Douglas, Alaska  99824                                                         
Telephone:  (907) 364-2998                                                     
POSITION STATEMENT:  Testified on CSHB 473(JUD).                               
JASON ELSON, Chief                                                             
Kenai Fire Department                                                          
210 Fidalgo                                                                    
Kenai, Alaska 99611                                                            
Telephone:  (907) 283-7666                                                     
POSITION STATEMENT:  Testified on CSHB 473(JUD).                               
KEN BISCHOFF, Director                                                         
Division of Administrative Services                                            
Department of Public Safety                                                    
P.O. Box 111200                                                                
Juneau, Alaska 99811                                                           
Telephone:  (907) 465-4336                                                     
POSITION STATEMENT:  Testified on CSHB 473(JUD).                               
RICK URION                                                                     
118 Fifth Street                                                               
Douglas, Alaska  99824                                                         
Telephone:  (907) 364-2315                                                     
POSITION STATEMENT:  Testified in support of HJR 1.                            
ANNE CARPENETI, Assistant Attorney General                                     
Criminal Division                                                              
Department of Law                                                              
P.O. Box 110300                                                                
Juneau, Alaska  99811-0300                                                     
Telephone:  (907) 465-3428                                                     
POSITION STATEMENT:  Testified on HB 122.                                      
ACTION NARRATIVE                                                               
TAPE 98-60, SIDE A                                                             
Number 0001                                                                    
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee               
meeting to order at 1:12 p.m.  Members present at the call to order            
were Representatives Green, Bunde, Porter and Croft.                           
Representative  Berkowitz arrived at 1:22 p.m. and  Representative             
Rokeberg arrived at 1:23 p.m.                                                  
HB 473 - FIRE TRAINING AND CERTIFICATION                                       
Number 0023                                                                    
CHAIRMAN  GREEN announced the first order of business to be HB 473,            
"An Act relating to training and certification of fire fighters,               
fire instructors, and certain emergency responders; and providing              
for an effective date."   He stated that the sponsor is here with              
some amendments.                                                               
REPRESENTATIVE MARK HODGINS stated that he would like the committee            
to consider CSHB 473( ), Version F.                                            
Number 0063                                                                    
REPRESENTATIVE CON BUNDE moved CSHB 473( ), Version F, for                     
discussion purposes.                                                           
CHAIRMAN GREEN asked if there was an objection.  Hearing none, CSHB
473( ), Version F, was before of the committee for discussion                  
REPRESENTATIVE HODGINS stated it is his understanding that everyone            
is in agreement to the bill.  He stated he would propose some small            
amendments, one would change the effective date of the bill to                 
July 1, 2000 which would then create a zero fiscal note.  He said              
the other amendment is on page 3, line 16, to take out "do cause"              
and insert "reason to believe" and insert "certified or claiming to            
be certified" in front of person.  This would be to reduce                     
litigation potential.                                                          
Number 0230                                                                    
REPRESENTATIVE BUNDE made a motion to adopt Amendment 1.                       
Number 0305                                                                    
REPRESENTATIVE ERIC CROFT stated he did not have an objection to               
Amendment 1; however, he would like the sponsor to explain the                 
differences.  He asked "On Amendment 1, the 'person certified or               
claiming to be certified' is there still authority in this board to            
investigate someone who isn't claiming to but should be?"  He                  
stated that before the amendment, the bill caught everybody in                 
violation and with the amendment, it would just be those who are               
certified or claim they are that would be sought after.  He asked              
why wouldn't "we" want to investigate a complaint against anyone               
who was in violation without the proper training.                              
Number 0385                                                                    
KEVIN JARDELL, Legislative Administrative Assistant to                         
Representative Joe Green, stated the reason for that particular                
wording was because there is nothing in the bill that requires                 
prior service personnel to be certified.  It is an opt-in program,             
leaving it blank would lead to investigations on people who do not             
want to play the game.  The idea was to clarify that the only                  
people who can be investigated are people who are opting into the              
Number 0468                                                                    
CHAIRMAN GREEN commented there was talk about the small volunteer              
areas that may not want to be certified.                                       
Number 0484                                                                    
REPRESENTATIVE CROFT asked if there was any requirement in the bill            
that before someone offers a fire services training program, they              
be certified.                                                                  
Number 0500                                                                    
MR. JARDELL replied he did not think there is any requirement  in              
the bill that requires certification.                                          
Number 0538                                                                    
REPRESENTATIVE CROFT stated that if he went out under subparagraph             
4 and started a fire services training program and never claimed to            
be certified, Amendment 1 would not give the commission the                    
authority to investigate him if they had reason to believe that he             
was performing a fire services training program without meeting the            
minimum training and performance standards.  He stated that under              
Amendment 1, since he is not claiming to be competent he would not             
have to prove that he is.                                                      
Number 0582                                                                    
CHAIRMAN GREEN referred to line 26, page 2, and asked if changing              
"may" to "shall" would solve the problem.                                      
Number 0606                                                                    
REPRESENTATIVE CROFT said he is not trying to make it mandatory if             
there are good reasons to make it optional.                                    
Number 0673                                                                    
REPRESENTATIVE HODGINS stated that Mr. Tyler could probably answer             
the question.                                                                  
Number 0692                                                                    
DAVE TYLER, testified via teleconference from Homer that the reason            
is to set a state recognized standard.  He said it is providing an             
acceptable standard to approve programs.  He stated if there is an             
unapproved program in existence, they would not be a legitimate                
fire department and would be open to a great deal of liability.                
Number 0751                                                                    
REPRESENTATIVE CROFT stated it now makes sense that only the people            
who claim to be certified would be investigated.                               
Number 0787                                                                    
REPRESENTATIVE BRIAN PORTER asked if someone could point out the               
language that makes this optional.                                             
Number 0810                                                                    
MR. TYLER replied that it is on page 3, line 16 and on page 2, line            
REPRESENTATIVE PORTER stated that presents a bit of a problem                  
because if they adopt them, they are applicable.  He pointed out               
that the it does not say that the fire service organization has the            
ability to opt-in or opt-out.                                                  
Number 0856                                                                    
MR. JARDELL stated there is no requirement that any fire service               
personnel be certified.  Because there is no requirement to be                 
certified, they have no power to keep someone from performing these            
duties.  So, if the council establishes criteria the only way they             
have any authority or power over an individual or department would             
be if they actually participated in the certification program.  The            
power would then be to take away their certificate if the                      
organization at some point did not meet the qualifications.                    
Number 0853                                                                    
REPRESENTATIVE HODGINS stated it was his understanding this bill               
would ease into the status of the fire council.  It is not                     
mandatory at this point, once they develop some rules, regulations             
and some standards they then will come back and ask that it be made            
mandatory.  He stated recognizing the fact that there are a lot of             
rural volunteer fire departments, a mandatory certification may                
prohibit those departments from fighting fires at this time.  The              
bill gives those departments plenty of time to "get up to speed".              
Number 0957                                                                    
CHAIRMAN GREEN stated the concept would be that a fire department,             
may or may not adopt these guidelines.  If they do, then they will             
have a certain length of time to train all the people who serve                
that particular fire department.                                               
Number 0974                                                                    
REPRESENTATIVE HODGINS stated this bill will develop a level of                
standardization for all departments, some time in the future.                  
Number 0989                                                                    
CHAIRMAN GREEN asked if this would preclude anyone that doesn't                
have this policy adopted, from going to help a certified department            
in an emergency.                                                               
Number 1008                                                                    
REPRESENTATIVE HODGINS replied he didn't believe so.  This would               
develop a requirement for the same level of training for all                   
Number 1048                                                                    
REPRESENTATIVE ETHAN BERKOWITZ asked what is the pattern language              
for this legislation.                                                          
Number 1074                                                                    
REPRESENTATIVE PORTER stated it would be very similar to law                   
enforcement.  He said "It is composed of professionals in the                  
organization that would develop regulations to implement that basic            
requirements.  As a matter of fact they would be setting the basic             
requirements."  He pointed out that many of the programs that exist            
in the urban areas would probably not have to do anything more than            
certify their programs.                                                        
Number 1145                                                                    
REPRESENTATIVE BERKOWITZ stated that one of the distinctions that              
exists between law enforcement and fire service protection is that             
there is a large degree of volunteer firefighting in Alaska.  He               
explained that he would want any fire fighting legislation to                  
accommodate (INDISC. -- WHISPERING) on a volunteer basis.                      
Number 1175                                                                    
REPRESENTATIVE HODGINS stated that it is a conceptual law, allowing            
them to set up their programs and then ask for a mandatory                     
participation in a future years.  He stated this sets up the                   
standards for the future and would not impact volunteer                        
organizations at this time.                                                    
Number 1247                                                                    
CHAIRMAN GREEN stated that without further legislation this bill               
will not require any communities to adopt the standards.                       
REPRESENTATIVE HODGINS stated that it would be the purview of the              
council after July 1, 2000, and then the legislature would have to             
draft a bill requiring mandatory participation.                                
Number 1274                                                                    
REPRESENTATIVE BERKOWITZ stated that the intent of this legislation            
is to permit communities who wish to adopt this standard, to be                
able to do so.                                                                 
Number 1283                                                                    
REPRESENTATIVE HODGINS stated that it would allow the fire                     
standards council to be formed to develop the standards and then it            
would go back to the communities with the universal standard that              
they would like to see implemented in the future.                              
Number 1301                                                                    
REPRESENTATIVE BERKOWITZ stated that the council could then mandate            
the standards in the smaller communities.                                      
CHAIRMAN GREEN replied that not unless there is further                        
REPRESENTATIVE BERKOWITZ asked if a community would have to opt-in             
to this standard.                                                              
CHAIRMAN GREEN replied that is correct.                                        
REPRESENTATIVE NORMAN ROKEBERG asked where that is stated in the               
REPRESENTATIVE HODGINS replied page 2, line 26.                                
Number 1345                                                                    
REPRESENTATIVE CROFT stated that the correct answer would be that              
it isn't in the bill and because there isn't a requirement, it                 
isn't mandatory.  He stated that he sees how this was modeled off              
of the police standards council.  He explained that is his concern             
because the police standards council is mandatory with an opt-out              
option if a policy with a similar criteria is established.  He                 
stated that the bill states "may adopt regulations establishing                
minimum training and performance standards".  He explained that                
even though they are not intending that everyone has to meet that              
requirement, it is there.   He asserted that he would be more                  
comfortable if there is a sentence that states an entity can opt-              
in if they want to.                                                            
Number 1422                                                                    
REPRESENTATIVE PORTER stated that he would agree and suggested that            
the sentence would have to crafted carefully.  It should be the                
reverse of the police standards, saying that an entity has the                 
ability to opt-in or opt-out at their discretion.   He stated that             
the one thing that the police standards does, that the bill does               
not, is consider entrance requirements for being hired.                        
Number 1517                                                                    
REPRESENTATIVE HODGINS stated that this bill will be brought                   
forward to the fire standards council and they will come up with               
some standards and then come back.  He stated that the council may             
decide to not make it mandatory.  He stated that he would feel                 
comfortable allowing the bill to go forward and then the fire                  
standards council could develop the standards that they would like.            
He stated that he would not be against having specific language put            
in that it is an opt-in program.                                               
Number 1582                                                                    
REPRESENTATIVE BERKOWITZ stated that he wished Representative James            
was here to talk about the evils of allowing regulations to develop            
downstream without any kind of legislative oversight.  He stated               
that the more that they can do to set up the parameters to develop             
the standards, is best.                                                        
Number 1626                                                                    
REPRESENTATIVE CROFT stated that he withdraws his objection to                 
Amendment 1.                                                                   
CHAIRMAN GREEN asked if there was a further objection to Amendment             
1.  Hearing none, Amendment 1 was adopted.                                     
Number 1634                                                                    
REPRESENTATIVE BERKOWITZ made a motion to adopt a conceptual                   
amendment to allow an opt- in provision.                                       
Number 1642                                                                    
REPRESENTATIVE PORTER stated that he has a friendly amendment, that            
the amendment should allow the ability to opt-in or opt-out.                   
Number 1660                                                                    
REPRESENTATIVE HODGINS stated that he would not have any objections            
to that.                                                                       
Number 1682                                                                    
REPRESENTATIVE BERKOWITZ restated his conceptual amendment to be to            
allow an opt-in or opt-out provision.                                          
CHAIRMAN GREEN asked if there was an objection.  Hearing none, the             
amendment was adopted.                                                         
Number 1700                                                                    
CHAIRMAN GREEN stated that there is a new fiscal note to go along              
with the July 1, 2000 date.                                                    
REPRESENTATIVE PORTER stated that he wants to make sure that it is             
on the record that it is  his opinion that there is nothing in this            
legislation that gives permission to the council to establish                  
entrance requirements for fire service personnel.  In order for                
that to be done a proposal would need to be made to the legislature            
for legislation.                                                               
Number 1753                                                                    
REPRESENTATIVE BERKOWITZ stated that on page 2, Section A, assuming            
that they exercise the power to establish minimum training and                 
performance standards, a participant could be excluded from being              
a firefighter if they fail to perform a certain test.  He stated               
that language would allow the screening out of candidates.                     
Number 1781                                                                    
REPRESENTATIVE PORTER stated that he would interpret performance               
standards to be (INDISC. -- PAPER RIPPING), which would probably               
evolve to pre-hire testing in those areas.  It does not give the               
ability to dictate, height, age or weight et cetera.                           
Number 1820                                                                    
REPRESENTATIVE BERKOWITZ stated that he recalled a dispute about               
women's inability to carry dead weight.                                        
REPRESENTATIVE PORTER stated that there are a myriad of validation             
requirements for physical tests that have the ability to reject an             
Number 1862                                                                    
REPRESENTATIVE HODGINS stated that not all firefighters physically             
fight fires with the example of smokey the bear.                               
Number 1886                                                                    
REPRESENTATIVE ROKEBERG stated that when there is professional                 
firefighters mixing with volunteers there is no policy direction               
concerning this.  He asked where the money would be coming from.               
CHAIRMAN GREEN stated that the operation will be funded by                     
statutory designated receipts, it is not a dedicated fund.                     
Number 2000                                                                    
REPRESENTATIVE ROKEBERG repeated his concern is of disqualifying               
volunteers if standards are too high.                                          
MR. TYLER replied that currently, there is a set of criteria to be             
a firefighter "one", the standards are created by the council.  He             
stated that it allows for rural firefighting and that would be more            
realistic than what is being done right now.                                   
Number 2058                                                                    
REPRESENTATIVE PORTER stated that he would guess there would be an             
evolution of performance standards and training standards that                 
would differ between a volunteer and a paid person.                            
MR. TYLER stated that what that in Homer that firefighter "two"                
positions may all be volunteers, where in Kenai the same position              
may be paid.  The difference is in the size of the department and              
the roles they play in the communities.                                        
Number 2115                                                                    
CHAIRMAN GREEN asked if a volunteer would be subject to the same               
training as a professional.                                                    
MR. TYLER replied yes, a volunteer would be subject to the standard            
of the department.                                                             
Number 2128                                                                    
REPRESENTATIVE ROKEBERG asked what are the levels of firefighting              
MR. TYLER replied that it is something that is in progress, the                
levels are done through accredited department (INDISC.)                        
REPRESENTATIVE ROKEBERG stated that he wondered if there was any               
statutory authority there.                                                     
REPRESENTATIVE HODGINS stated that it was his understanding that               
there isn't, each community does its own.                                      
MR. TYLER stated that it comes from the fire service training                  
standards that are based on the national standards but they do not             
(INDISC. -- TAPE STATIC) rural considerations.                                 
PAT EGGERS, President, Alaska State Fire Fighters Association,                 
stated that he did not believe there is a statutory authority.  He             
stated that there is a somewhat standardized firefighter "one"                 
curriculum, that is offered from certified departments to some of              
their members.  It is what the state of Alaska fire service                    
training is able to provide right now.                                         
Number 2203                                                                    
CHAIRMAN GREEN asked that presently a Juneau firefighter "one" may             
have different qualifications than an Anchorage firefighter "one"              
or would they be the same.                                                     
Number 2219                                                                    
MR. EGGERS stated that it would essentially be the same.                       
Number 2238                                                                    
CHAIRMAN GREEN stated that this would ensure that those who opted              
into the program would be exactly the same and meet national                   
MR. EGGERS replied that according to the bill he would expect it to            
mirror the standards but in smaller areas they might not be able to            
do so.  Therefore, they might be different tiers for different size            
Number 2249                                                                    
REPRESENTATIVE ROKEBERG said, "I don't know if -- the question                 
about forestry."                                                               
Number 2250                                                                    
REPRESENTATIVE HODGINS stated that the council would set up the                
standards and will look at all aspects of firefighting whether its             
forestry or structure et cetera.  He stated that to his knowledge              
this would not impact any relationship with forestry type                      
firefighters versus any other fire personnel.                                  
Number 2275                                                                    
REPRESENTATIVE ROKEBERG stated that we have not heard from a state             
forester on the bill.                                                          
Number 2283                                                                    
REPRESENTATIVE HODGINS replied that he could not imagine the state             
forest fighting section would not have some sort of standards and              
would embrace the ability to set up standards so that communities              
would have some standardization of qualifications to rely on.                  
Number 2300                                                                    
CHAIRMAN GREEN stated that smaller communities might not actually              
have the same standards but if they opt into this wouldn't they be             
required to have the same standards.                                           
Number 2311                                                                    
MR. EGGERS stated that the standard will be set to the size of the             
community and what they are able to do.  He stated that he asked               
Mr. Tyler to speak on this.                                                    
Number 2322                                                                    
MR. TYLER stated that is correct.  It would look at the individual             
programs, it is based on the national standards but also                       
considerations will be taken on the size of the communities.  Rural            
communities are not going to have to learn to do operations on                 
high-rise buildings.                                                           
Number 2356                                                                    
CHAIRMAN GREEN asked what would happen if a Fort Yukon firefighter             
"two" moves to Anchorage, would he have to be re-certified.                    
MR. TYLER replied that he would have to add on to his certification            
because of the different responsibilities in Anchorage.                        
Number 2371                                                                    
REPRESENTATIVE PORTER stated that a certification program that is              
tailored to each community would present a large problem in                    
portability certifications.  He suggested that eventually they will            
standardize by the size of the community, there cannot be a                    
standard that is totally un-uniform.                                           
Number 2398                                                                    
REPRESENTATIVE HODGINS stated that the council would probably                  
address those questions and come up with a succinct answer and                 
standardization that will utilize the concerns the committee has.              
He stated that they could only do that if this bill is passed.                 
CHAIRMAN GREEN asked if that would mean that the council would come            
up with hybrid standards for the different needs of the communities            
or would it be a uniform standard.                                             
Number 2443                                                                    
REPRESENTATIVE HODGINS stated that it would be tailored to the                 
needs of the community, however, if someone was to transfer they               
would have to acquire the standards of that department.                        
TAPE 98-60, SIDE B                                                             
Number 0019                                                                    
REPRESENTATIVE PORTER stated that the bill has to pass and the                 
council needs to sit down and grapple with how to develop the                  
standards.  He stated that the minimum standards are going to be               
portable to an area that is similar.                                           
Number 0080                                                                    
REPRESENTATIVE ROKEBERG stated that he is supportive of the                    
concept, but still has some questions has to where the money will              
come from.  He stated that if there is a lack of the ability on the            
part of the program receipts to pay for the professional staff,                
they are then back into the general fund.  He stated that he is not            
satisfied that the forestry sector has had input into this                     
Number 0140                                                                    
CHAIRMAN GREEN asked where the statutory designated receipts come              
Number 0147                                                                    
MR. EGGERS stated that the receipts come from certain programs that            
are put on by fire service training.                                           
Number 0199                                                                    
JASON ELSON, Chief, Kenai Fire Department, testified via                       
teleconference from Kenai that essentially the Department of Public            
Safety had a problem with the $178,000 fiscal note.  He stated that            
"they" asked that it be removed and that alternative funding                   
sources be looked into to accomplish the goals of the council.  He             
stated that in the division of forestry is also members of the                 
Alaska fire-chiefs association and they are in consensus with them             
on the bill.                                                                   
REPRESENTATIVE ROKEBERG stated that there is nothing on the record             
from them to that effect.                                                      
Number 0254                                                                    
KEN BISCHOFF, Director, Division of Administrative Services,                   
Department of Public Safety, stated that his charge was to find a              
solution that would not force more trooper positions vacant and not            
deteriorate other program receipt services.  The fiscal note does              
that, it is the intent that there is no fiscal impact to the                   
department and the only way to do so is to find a some way for them            
to generate revenue and structure it in such a manner that it will             
meet the statutory designated receipt classification, which is not             
counted in the total general fund budget.  He stated that he did               
not know if the fire service had a complete plan but it is his                 
understanding that they are entertaining the motion of assessing               
themselves and funneling that money throughout a private entity.               
He continued to state that whether the designated program receipt's            
statute would allow the state to submit a budget request if they               
are contracting with a private entity or a municipality.  He stated            
that would then take those revenues off of the general fund budget             
and treat them as another revenue source which would then be more              
receptive to the governor and to the legislature.                              
Number 0323                                                                    
CHAIRMAN GREEN stated that is correct and it would skirt the                   
dedicated fund.                                                                
MR. BISCHOFF replied that is correct.  The legislature still has to            
appropriate the money.                                                         
Number 0333                                                                    
CHAIRMAN GREEN stated that he thought that would still show up as              
a budget category but that is a finance problem.                               
Number 0350                                                                    
REPRESENTATIVE ROKEBERG stated that he is reading from a letter                
dated March 31, 1998 by Mr. Malmquist of Central Emergency Services            
of Soldotna that stated "Alaska Fire Chiefs Association has                    
proposed a $1 per capita and program receipt concept as a stable               
funding source for fire service training."  Representative Rokeberg            
stated that it better be more than a buck.                                     
Number 0377                                                                    
REPRESENTATIVE PORTER made a motion to move CSHB 473(JUD), Version             
F, as amended with individual recommendations with the fiscal note             
dated 4/8/98.                                                                  
CHAIRMAN GREEN asked if there was an objection.  Hearing none, CSHB
473(JUD), Version F, moved from the House Judiciary Standing                   
REPRESENTATIVE PORTER stated that the committee adopted the wrong              
fiscal note.  He made a motion to rescind his motion.                          
CHAIRMAN GREEN asked if there was an objection.  Hearing none, it              
was so ordered.                                                                
REPRESENTATIVE PORTER made a motion to move CSHB 473(JUD), Version             
F, as amended with individual recommendations with the fiscal note             
dated 4/15/98.                                                                 
CHAIRMAN GREEN asked if there was an objection.  Hearing none, CSHB
473(JUD), Version F, as amended, moved from the House Judiciary                
Standing Committee.                                                            
HJR  1 - LIMIT LEGISLATIVE SESSION TO 90 DAYS                                  
Number 0422                                                                    
CHAIRMAN GREEN announced the next bill to come before the committee            
was HJR 1, Proposing an amendment to the Constitution of the State             
of Alaska relating to the duration of a regular session.  He asked             
Representative Rokeberg, prime sponsor, to introduce HJR 1.                    
Number 0467                                                                    
REPRESENTATIVE ROKEBERG, Prime Sponsor, said HJR 1 is a                        
straightforward resolution which limits the length of a legislative            
session to 90 days.  He directed the committee's attention to the              
attached fiscal note which indicates a savings of as much as $1.5              
million in staffing and other areas.  He pointed out the                       
information contained in committee members' packets indicates the              
vast majority of other legislatures meet for less than 120 days.               
He suggested this issue is important from his view of legislative              
reform and believes people of the state deserve a chance to vote on            
the issue.  He is of the opinion the vast majority of the citizens             
of the state of Alaska would approve this measure.  Among the                  
reasons for this resolution is what he considers the myth of a                 
citizen legislator and he believes this bill would help overcome               
that myth.                                                                     
CHAIRMAN GREEN said his concern was the legislature would still                
begin in January during the bad weather and he would almost prefer             
to move it another month to avoid the problem of getting in and out            
of Juneau.                                                                     
REPRESENTATIVE ROKEBERG noted the constitution states the                      
legislature shall convene in regular session on the fourth Monday              
in January, but allows for the month and day to be changed by law.             
The start date was indeed changed to an earlier date so that                   
legislators could get home in time for harvesting and to plan for              
summer activities.   However, he was of the opinion the fourth                 
Monday should be re-examined and the legislature would be more                 
readily able to convene on the fourth Monday with passage of this              
Number 0705                                                                    
REPRESENTATIVE BERKOWITZ noted that Representative Rokeberg had                
indicated while testifying in the State Affairs Committee that he              
would be supportive of 100 days instead of 90.                                 
REPRESENTATIVE ROKEBERG commented he prefers 90 days, but he                   
doesn't have any strong feelings about 100 days.                               
CHAIRMAN GREEN noted this bill allows the regular session to be                
extended one time for up to ten days and wondered if that was a                
result of a prior committee hearing.                                           
REPRESENTATIVE ROKEBERG said that language currently exists in the             
CHAIRMAN GREEN said he interprets this language as a regular                   
session being 90 days and with a two-thirds vote an extension of 10            
Number 0791                                                                    
REPRESENTATIVE CROFT noted that some of the accompanying material              
discussed establishing a shorter session every other year and                  
asked if that was done in some states.                                         
REPRESENTATIVE ROKEBERG said some states meet biennially, like                 
Oregon and others like Washington that designates one year as a                
budget year and the other year in which bills can be introduced.               
He noted, however, that a number of the states that do meet for                
abbreviated sessions have interim activity.                                    
REPRESENTATIVE CROFT pointed out the Oregon legislature meets from             
January to late June which is essentially one month longer than                
Alaska's session, but Oregon meets every other year.  He said that             
meeting once for a longer period makes as much sense to him as                 
having two shorter sessions.                                                   
CHAIRMAN GREEN remarked that another legislative bill had been                 
introduced which called for a biennial budget, which sort of fits              
in with what Representative Croft was discussing.                              
REPRESENTATIVE ROKEBERG expressed skepticism about having a                    
biennial budget because of oil prices and the forecasting that                 
occurs in the spring.  In his opinion, the budget needs to be                  
looked at every year.                                                          
CHAIRMAN GREEN asked Rick Urion to come before the committee to                
present his comments at this time.                                             
Number 0908                                                                    
RICK URION, testifying on behalf of himself, said he is a firm                 
believer this is one of the best things that could be done to                  
improve the legislative arena.  He recalled when the 120-day limit             
was first proposed, many individuals said it couldn't be done and              
those same people say that about a 90-day session.  There is no                
doubt the legislative process will occupy whatever period of time              
allowed.  He stated as a person who believes in a citizen                      
legislature, HJR 1  will return this body back to a citizen                    
legislature.  He expressed confidence this issue would pass                    
overwhelmingly if it was put before the voters of the state.                   
CHAIRMAN GREEN inquired if, based on Mr. Urion's past experience as            
a legislator and now as a private businessman, he thought the                  
passage of HJR 1 with the shorter session would broaden the field              
of legislative candidates.                                                     
MR. URION said there was no doubt in his mind it would broaden the             
field.  Legislators now have year-round staff in offices in their              
home districts which takes away a lot of the argument for not                  
shortening the session.                                                        
Number 1064                                                                    
REPRESENTATIVE BERKOWITZ said, "On that though, don't you think                
that because it's not just permanent staff, but permanent                      
bureaucracy, permanent administration, that we put ourselves as a              
legislature at a little bit of a disadvantage by now being around              
for that extra month?"                                                         
MR. URION replied that's been one of the arguments over the years.             
He commented there are three branches of government and the other              
two branches will always be around for a longer period of time,                
regardless of what the time period is for the legislative session.             
The legislature has time during the interim to hold committee                  
meetings, meet with their constituents, et cetera.                             
Number 1113                                                                    
REPRESENTATIVE BERKOWITZ asked if there was anything magical about             
90 days.                                                                       
MR. URION replied it's three months; it's better than 100 days                 
because then legislators would have to pay four months rent.                   
Number 1155                                                                    
REPRESENTATIVE PORTER made a motion to move HJR 1 from committee               
with individual recommendations and the attached fiscal note.                  
Number 1168                                                                    
REPRESENTATIVE BUNDE objected.  He said committee members are                  
kidding themselves.  The difference between taking time off from a             
real job for three months or four months is inconsequential.  He               
has had discussions with legislators in other states that have                 
shorter sessions and what it means is that a person is a full time             
legislator when not in session because all the committee work must             
be done prior to coming into session.  With that in mind, he didn't            
see that Alaska would gain much with its geographic challenge in               
that a lot of money would be expended for legislators to travel to             
committee meetings during the interim instead of holding the                   
meetings when all committee members are convened in one location.              
He agreed the public would vote for it, but the public will not be             
happy when there is no recognizable savings.                                   
REPRESENTATIVE PORTER said he didn't disagree there would be an                
increase in committee work during the interim with a 90-day                    
session.  However, he felt there would be a substantial amount of              
savings when comparing the cost of per diem for 60 legislators and             
keeping staff for an additional 30 days as opposed to no travel to             
any great extent except to a Legislative Information Office because            
during the interim the committee can't pass legislation from                   
committee anyway and amendments can be done by teleconference.                 
REPRESENTATIVE BUNDE said this may be premature, because he felt               
that within five years legislators wouldn't be meeting much face-to-face, but r
REPRESENTATIVE BERKOWITZ expressed concern that it may be difficult            
to recruit quality staff for a three-month time period.                        
REPRESENTATIVE BUNDE suggested eliminating all interim staff if the            
committee is interested in saving money.                                       
REPRESENTATIVE ROKEBERG referred to the fiscal note prepared by the            
Legislative Affairs Agency which reflected the savings in per diem             
and staff for a 30-day period.  He took strong exception to the                
statement there would be no savings.                                           
Number 1430                                                                    
CHAIRMAN GREEN asked if there was further discussion.  Hearing                 
none, he asked for a roll call vote.  Representatives Croft,                   
Porter, Rokeberg and Green voted in favor of moving the bill from              
committee.  Representatives Bunde and Berkowitz voted against it.              
Therefore, HJR 1 moved from the House Judiciary Standing Committee             
by a vote of 4-2.                                                              
HB 122 - PRISONERS: LITIGATION & DEBTS                                         
Number 1470                                                                    
CHAIRMAN GREEN announced the next bill to come before the committee            
was HB 122, "An Act relating to prisoner litigation, post-conviction relief, an
judgments against prisoners' accounts; amending Alaska Rule of                 
Administrative Procedure 10(e),  Alaska Rule of Appellate Procedure            
502(b), Alaska Rule of Civil Procedure 26, and Alaska Rule of                  
Criminal Procedure 35; and providing for an effective date."  He               
asked Anne Carpeneti to come forward to present her comments on                
HB 122.                                                                        
Number 1500                                                                    
ANNE CARPENETI, Assistant Attorney General, Criminal Division,                 
Department of Law, said HB 122 ties up the loose ends of a couple              
pieces of legislation that passed in 1995.  The first was a fairly             
comprehensive bill that addressed finality of judgments and                    
discouraged recreational litigation by people who had been                     
convicted and were incarcerated.  It required prisoners who filed              
lawsuits against the state to pay at least a portion of the filing             
fee that other litigants are required to pay when bringing a cause             
of action.  It did so by requiring prisoners to submit a statement             
of their financial position and then to at least pay a filing fee              
of 20 percent of the average in their prisoner account or of the               
average deposits.  She stated that piece of legislation has worked             
very well to discourage baseless, frivolous litigation brought by              
prisoners.  She explained that Section 1 of HB 122 requires the                
prisoner to list on a financial statement any money in accounts                
outside the prison.  Usually a prisoner declares they have no money            
and the judge then looks at the computer generated printout of the             
prisoner's account activity sent by the prison with the                        
application.  The court is required by statute to select either the            
average in the prisoner's account or of the average deposits,                  
whichever is higher.  She stated it's been as low as one cent and              
in fact, an application for exemption from the filing fee was                  
dismissed because the one cent wasn't paid.                                    
MS. CARPENETI further stated the second legislative bill that                  
passed the legislature in 1995 dealt with DNA evidence, making it              
easier to use DNA evidence in a criminal prosecution.  At the same             
time, the legislature adopted a DNA data bank which required people            
convicted of a felony crime against a person to submit to testing              
either orally or by a blood test.  In practicality, the Department             
of Public Safety freezes the samples which allows for screening of             
the DNA sample at a later date if the department wishes to do so.              
She noted it costs about $1,000 to send the samples out of state               
for testing, but she didn't know the cost for testing in-state.                
Number 1730                                                                    
REPRESENTATIVE CROFT inquired if there was any difference in                   
reliability between the oral and the blood samples.                            
MS. CARPENETI said she didn't believe so, but the law passed in                
1995 gave the option to the person taking the test.                            
MS. CARPENETI continued with the sectional analysis of HB 122 and              
said Section 2 corrects an oversight in the legislation passed in              
1995.  It should read the automatic disclosure provisions under                
Civil Rule 26.  She added, "In the meantime, the court system has              
actually put in Civil Rule 26 - has provided that automatic                    
disclosure does not apply to prisoner litigation under AS 09.19,               
but it doesn't hurt to have it in here in case they should change              
their mind."  In Section 3, the definition of "litigation against              
the state" is expanded for purposes of the filing fee to make it               
clear that it relates not only to appeals from civil actions, but              
different sorts of appellate reviews that are available as well.               
The prisoners are somewhat creative in calling their action                    
something other than an appeal, so language was added for                      
MS. CARPENETI further explained the language "an alleged violation             
of a person's constitutional rights" has been added in Section 3.              
She said, "These don't tend to be related to prison conditions like            
overcrowding or sending you outside or treatment or visitation.                
What they are, are generally a person will claim an action by the              
state - for example, the police in a search or something or an                 
arrest violating constitutional rights even though it did not                  
affect their original charge and conviction - so we've included                
that as part of the definition of litigation against the state."               
MS. CARPENETI said Section 4 adopts a class A misdemeanor.  She                
explained there was no provision for enforcing the DNA data bank               
when the legislation was passed so if a person refuses to submit to            
DNA testing, there is no means to require the person to do so.  She            
said, "There are several different ways of doing that here in the              
bill.  One, it creates a class A misdemeanor for a person who is               
convicted of a crime for which they have to submit to a test to                
refuse when asked to submit to the test by somebody working for the            
state.  And again, it applies to persons convicted of felonies                 
against the person except for custodial interference.  Actually, it            
also applies to juveniles 16 years of age or older who are found to            
be delinquent based on an act which would be a crime under                     
AS 11.41.  The bill also gives the court the authority to order as             
a part of a sentence a person who is convicted of one of the                   
crimes, it requires submission of a sample to make it part of the              
sentencing order."                                                             
MS. CARPENETI explained, "The bill also provides that if a person              
is given probation after conviction of one of these offenses, a                
condition of probation has to be that he or she submit to testing              
and also as a condition of parole."  So, if this legislation                   
passes, the court is required to order submission to testing as a              
condition of the sentence, condition of probation, the parole board            
has to order it as a condition of parole and it's a crime if the               
person doesn't submit to the testing.                                          
MS. CARPENETI said Sections 8 and 9 of HB 122 are clarification                
language for Title 16.  She explained there has been litigation                
recently about whether or not the parole board can revoke parole of            
a person who has not gone to a court-ordered rehabilitation program            
before the person is actually paroled.  The argument has been made             
that a person isn't a parolee until released.  This language makes             
it clear that a parole board can, before a person is released,                 
revoke good time, parole or mandatory parole for that reason.                  
Section 9 is a technical amendment for AS 33.16.220.                           
MS. CARPENETI explained that Section 10 limits the time that a                 
person can file a notice of appeal in a criminal case or appeal of             
a sentence to 60 days after the last extension of time.  She noted             
the department has an amendment to make it clear this doesn't deal             
with extensions of time requested by the person and granted by a               
court, but rather validation of an act after there has been no                 
request for an extension of time.                                              
Number 2319                                                                    
REPRESENTATIVE CROFT said Section 10 caused him some concern                   
because it seemed like it was a special rule for "these jailhouse              
MS. CARPENETI responded that it applies to an appeal of a                      
conviction or sentence; it's not like a "jailhouse" piece of                   
litigation where a prisoner is filing a civil lawsuit against the              
state alleging that his rights have been violated.  It applies to              
convictions and sentences and the purpose is to have some finality             
in terms of sentences and convictions.  She noted that as part of              
the legislation that was passed in 1995, the legislature limited               
Appellate Rule 521 to do this very thing.                                      
REPRESENTATIVE CROFT asked if that was the subject of the Court of             
Appeals case?                                                                  
MS. CARPENETI said yes, it was the Ozenna Case.  She added the                 
state argued in Ozenna that the court should apply the 60-day limit            
to Appellate Rule 502, but it didn't.  The court said if the                   
legislature had ....                                                           
TAPE 98-61, SIDE A                                                             
Number 0001                                                                    
REPRESENTATIVE ROKEBERG made a motion to adopt CSHB 122(JUD),                  
Version 0-GH0055\B, Luckhaupt, dated 3/10/98.  There being no                  
objection, that version was before the committee.                              
REPRESENTATIVE CROFT asked why Appellate Rule 521 didn't apply in              
the Ozenna Case?                                                               
Number 0072                                                                    
MS. CARPENETI said Appellate Rule 521 amends the rule allowing an              
extension of time in the interest of justice and Appellate Rule 502            
provides for an extension of time for good cause shown.  She added             
that Appellate Rule 521 was limited to 60 days after the deadline              
and the department is requesting that Rule 502 be amended so the               
two rules agree.  She said, "It's the same rationale - at a certain            
point, you have to depend on the finality of judgments and                     
sentences and if you can't file a notice of appeal within 60 days              
after the last deadline has passed, maybe you ought to think about             
doing something else."                                                         
REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti to repeat the two                 
standards of Appellate Rule 502 and 521.                                       
MS. CARPENETI replied that 521 basically is in the interest of                 
justice and 502 is for a good cause shown.                                     
REPRESENTATIVE BERKOWITZ asked what the distinction was between the            
two standards.                                                                 
MS. CARPENETI replied, "Well, for good cause shown is usually a                
lawyer saying, 'Well, I couldn't file this because I didn't know               
about it; I didn't hear; I didn't get notice of appeal or it got               
lost in my desk' or something like that.  There was a good reason              
why it couldn't be filed.  If there is no good reason, then you                
look to 502 and you say, "well, I may have goofed up as a lawyer,              
but don't do this to my client because he deserves an appeal' and              
I think that would be in the interest of justice.  I think that's              
how those two are interpreted."                                                
REPRESENTATIVE BERKOWITZ asked if that discrepancy led the court to            
accept a late filed notice of appeal - because they relied on 502              
instead of 521?                                                                
MS. CARPENETI confirmed that.                                                  
REPRESENTATIVE BERKOWITZ asked if that happened often?                         
MS. CARPENETI replied yes.                                                     
REPRESENTATIVE BERKOWITZ questioned the reason for the Department              
of Law to ratcheted 502 down to the 521 standard instead of the                
other way around.  In other words, why not default to good cause               
instead of defaulting to interest of justice?                                  
MS. CARPENETI replied the department doesn't want to default at                
all, but wants the rule to say a person has 60 days after the                  
deadline.  She added, "The problem if you have a default is you                
allow -- if you don't make them consistent with each other is that             
a court will say, 'well, we don't find interest of justice -- I                
mean we can't do it under 521, but there is good cause under 502'              
and one of the purposes of the legislation in 1995 and now is to               
say there are many good reasons why we should stop allowing appeals            
after deadlines."                                                              
REPRESENTATIVE BERKOWITZ asked if he was correct that if the court             
had found there wasn't good cause in Ozenna, the late filed notice             
would not be been accepted.                                                    
MS. CARPENETI believed that was correct.                                       
REPRESENTATIVE BERKOWITZ added, "So, there had to be this predicate            
showing of good cause before the court would even entertain a late             
filed motion.  And really what we're doing is trying to determine              
whether the standard for accepting late motions is going to be good            
cause or interest of justice."                                                 
MS. CARPENETI remarked the department's position is that if a                  
person hasn't asked for an extension of time to file within 60 days            
after the last deadline, there really isn't any good justification             
for showing good cause.  She added there are other ways to go about            
it.  For example, if it can't be appealed that way, a motion for               
post-conviction relief can be brought.                                         
REPRESENTATIVE BERKOWITZ said it seems to him the 60-day period is             
fixed and that's going to be regardless of good cause.  He added,              
"Jumping over the good cause hurdle is still a hurdle that an                  
applicant has to get by and I'm wondering why even if we're                    
reconciling interest of justice and good cause, there's the 60-day             
requirement in there."                                                         
MS. CARPENETI replied that 60 days seemed a reasonable amount of               
time.  She noted the proposed amendment makes it clear that it's               
validation of an act after the fact.  The department doesn't intend            
this particular section to limit in any way the times that a lawyer            
or a litigant can come before the judge to request extra time to               
file an appeal.  She reiterated that 60 days seemed like a                     
reasonable amount of time in the balancing between finality of                 
judgments and allowing people to have their day to appeal their                
conviction or sentence.                                                        
Number 0569                                                                    
REPRESENTATIVE CROFT said it seemed to him the 60-day limit should             
have been put in Appellate Rule 502; that being the good cause                 
exception, but it makes him wonder why it was put in Rule 521.  In             
other words, now it's being added so it's in both 502 and 521.                 
Perhaps a rational argument could be made that it shouldn't have               
been put in 521, but rather in 502.  He added, "We should say                  
there's just no good cause after 60 days, but there still may be an            
interest of justice overwhelming exception.  So, it makes a lot of             
sense to me to tie the low standard to a 60-day limit.  I guess I              
then start to question why the extreme one - 'the I have no good               
excuse your Honor,  - no good reason why I lost it in my file                  
cabinet but the interest of justice' -- I mean, this is something              
extraordinary, clear, exculpatory -- why do we put then a 60-day               
limit on that one?"                                                            
MS. CARPENETI said in the circumstances Representative Croft is                
describing - a person has newly discovered evidence that was hidden            
or lost in a file cabinet - there are other ways a litigant can                
bring that to the court's attention through post-conviction relief             
in which a person can do within two years after the conviction.                
She explained the post-conviction relief provision specifically                
allows a person to bring a petition for a relief based on newly-discovered evid
year from the Appellate decision.                                              
REPRESENTATIVE PORTER remarked the last time this bill was before              
the legislature there had been debate about eliminating the 60-day             
extension in the first place and the legislature sort of erred on              
the side of safety to be consistent with the court rule and perhaps            
a constitutional issue; however, a deadline is a deadline.                     
Number 0812                                                                    
REPRESENTATIVE PORTER made a motion to adopt Amendment 1 which                 
     Page 5, lines 22-26:                                                      
     Following "court," delete all material and insert:                        
     "In a matter requesting review of or appealing a criminal                 
     conviction or sentence, this rule does not authorize an                   
     appellate court, or a superior court acting as an intermediate            
     appellate court, to validate the filing of a notice of appeal,            
     petition for review, or petition for hearing more than 60 days            
     after the expiration of the time specified in the rule or                 
     statute, or in the last extension of time previously granted."            
CHAIRMAN GREEN asked if there was any objection.                               
REPRESENTATIVE CROFT objected for discussion purposes.                         
Number 0833                                                                    
REPRESENTATIVE BERKOWITZ offered a friendly amendment to                       
Amendment 1 on line 2, following "sentence," insert language akin              
to "and absent any manifest injustice" or "absent the interest of              
REPRESENTATIVE CROFT said, "It seems like if the court makes that              
finding, there was an interest of justice or there was a manifest              
injustice, then they go to 521 and 521 still says 60 days."  He                
commented that unless the 60-day requirement is deleted in 521,                
this ends up being sort of a circular track.                                   
CHAIRMAN GREEN stated there was a friendly amendment to Amendment 1            
on the table.                                                                  
REPRESENTATIVE BERKOWITZ said if there's a necessity for it, he                
would recommend that language to 521 as well.                                  
CHAIRMAN GREEN said that would be addressed as a separate issue.               
The objection was maintained and he requested a roll call vote on              
the amendment to Amendment 1 which would insert, "absent the                   
interest of justice" on line 2, following "sentence,".                         
Number 1004                                                                    
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti to address the                     
amendment to Amendment 1.                                                      
MS. CARPENETI commented her position is the reason to have this                
legislation is to provide some finality in terms of judgments and              
convictions and allowing a person to litigate this will allow a                
person to bring a motion or file an appeal many months or many                 
years late which is what the department was trying to avoid.  She              
added if 60 days after the last deadline isn't long enough, a                  
person can bring a petition for post-conviction relief, but there              
has to be some finality in judgments.  It's not only good for the              
system, but in a lot of ways good for defendants who need to start             
working on their rehabilitation rather than trying to find new ways            
to bring questions to the court that have already been decided or              
should already have been filed.                                                
REPRESENTATIVE BERKOWITZ said on that point, a defendant has to get            
in the door first and if the door is closed either because the                 
interests of justice aren't served by allowing an extension or                 
because the 60 days have expired, the door is closed - it doesn't              
matter.  There's a first step the defendant has to take which is               
filing for a motion to accept late notice or whatever the defendant            
is filing for and whether it's done under the guise of the interest            
of justice or because of 60 days, there's still going to have to be            
a determination by the court at that point.  But that's where the              
door is either opened or closed.                                               
Number 1105                                                                    
REPRESENTATIVE CROFT, speaking against the amendment to Amendment              
1, said, "The amendment as we have it says 'this rule' so it's just            
talking about 502.  So without the amendment to amendment - without            
the language reading 'and absent any manifest injustice' or words              
to that effect, you could still say under this rule 60 days, you're            
gone.  That still leaves open the idea that whether we should amend            
521 to take out the 60 day on that.  But I don't think the                     
amendment to the amendment adds anything to the rules."                        
REPRESENTATIVE ROKEBERG confirmed there would be an avenue for a               
person to pursue if new evidence was discovered after the 60 day               
limit for appeal.                                                              
MS. CARPENETI said the procedure is called post-conviction relief              
and a person has two years from the date of conviction in which to             
bring matter.                                                                  
REPRESENTATIVE ROKEBERG inquired what happened if new evidence was             
discovered after five years, such as someone else confessing to the            
MS. CARPENETI said most likely the person would be out of jail                 
anyway, but there are procedures to deal with that.                            
REPRESENTATIVE CROFT commented, "And I'd just like to very briefly             
put a conflict on record.  I've never practiced any criminal law,              
but might some time, so for this whole issue - this whole bill and             
this amendment."                                                               
CHAIRMAN GREEN asked for a roll call vote on the amendment to                  
Amendment 1.  Representative Berkowitz voted for the amendment to              
Amendment 1. Representatives Bunde, Croft, Porter, Rokeberg and                
Green voted against it.  Therefore, the amendment to Amendment 1               
failed by a vote of 1-5.                                                       
CHAIRMAN GREEN asked if the objection to Amendment 1 was                       
maintained?  Representative Croft removed his objection to                     
Amendment 1.  There being no further objection, Amendment 1 was                
Number 1270                                                                    
MS. CARPENETI, continuing the sectional analysis, said Section 11              
is part of the DNA profile evidence provision that requires the                
court to include on the judgment that the person is convicted of an            
offense that requires submission of a DNA sample.  Section 12                  
addresses Criminal Rule 35(b) motions which is a motion for                    
leniency filed by a defendant after the imposition of sentence.                
She said historically, it does not appeal a sentence; it just asks             
the court to reconsider the sentence within a certain period of                
time after the sentence is imposed.  In the 1970s, such a motion               
was required to be filed within 60 days, then it was amended to                
allow a convicted person to file such a motion within 120 days and             
HB 201 passed in 1995 allowed the defendant 180 days to file a                 
motion to reduce the sentence at the court's discretion.  At this              
point, the department is asking that a provision be added to Rule              
35 that a time limit of 180 days can't be relaxed more than 10                 
days.  She noted that Rule 53 of the Criminal Rules allows a court             
to relax its rules in the interest of justice and the department's             
position is that 180 days is really long enough to reduce a                    
sentence in the interest of justice and that 10 days is a                      
sufficient relaxation period.                                                  
REPRESENTATIVE PORTER asked if Ms. Carpeneti knew what the                     
rationale was for expanding and expanding that time period by court            
MS. CARPENETI thought the idea was to give the court more time to              
look back and evaluate whether the application for leniency was                
well-founded.  It would allow the defendant more time to                       
demonstrate their progress.                                                    
CHAIRMAN GREEN asked if it had been done legislatively each time it            
was expanded.                                                                  
MS. CARPENETI said it's a court rule, but HB 201 made it 180 days              
from the original conviction rather than allowing a 35(b) motion               
after an appeal was decided.  It also provided that a judge cannot             
reduce it below the mandatory minimum, presumptive term or various             
other legislatively determined sentences.                                      
REPRESENTATIVE CROFT asked if the time period changes from 60 days             
to 120 days to 180 days in Court Rule 35(b) were done by court rule            
change or legislative action.                                                  
MS. CARPENETI said she didn't recall the change from 60 days to 120            
days, but the change from 120 to 180 days was done by legislative              
action on the Court Rule.                                                      
Number 1542                                                                    
REPRESENTATIVE CROFT inquired if the court system could change the             
180 days or the 10 day relaxation period.                                      
MS. CARPENETI replied yes, but generally the court system doesn't              
change court rules that have been legislatively changed.                       
REPRESENTATIVE CROFT asked what authority the court system would               
have to relax the time period.                                                 
MS. CARPENETI replied Criminal Rule 53.                                        
Number 1615                                                                    
REPRESENTATIVE CROFT asked, "Is this the only place where we're                
putting limits on 53's general (indisc.) clause?"                              
MS. CARPENETI believed there were other places in the Criminal                 
Rules and there definitely are in the Appellate Rules that put                 
limits on, but she needed to get back to Representative Croft for              
Rule 53.                                                                       
REPRESENTATIVE CROFT asked Ms. Carpeneti for clarification on the              
case where the court extended the time beyond 180 days.                        
MS. CARPENETI replied, "The courts have used 35(b) to -- in fact,              
in Fairbanks recently there have been several cases that we've                 
appealed - actually we've won on - but judges at the end after the             
appeal is decided -- the courts have gone back and looked at it and            
reduced the sentence under this rule.  There were several recently             
out of Fairbanks that we appealed actually and we won on, but it's             
kind of a waste of time to do that."                                           
Number 1674                                                                    
CHAIRMAN GREEN asked if there were other questions of the witness.             
Hearing none, he asked the wish of the committee.                              
Number 1687                                                                    
REPRESENTATIVE ROKEBERG made a motion to move CSHB 122(JUD), as                
amended, with individual recommendations and attached zero fiscal              
Number 1699                                                                    
REPRESENTATIVE BERKOWITZ objected for the purpose of discussion.               
He said he prefers to hear from both sides on court rule changes.              
He thought it unfortunate the committee didn't have an opportunity             
to hear from the defense bar on this issue and he is hopeful that              
when there are criminal issues in the future, the committee would              
get the opportunity to weigh and balance fairly.                               
CHAIRMAN GREEN said the meeting was properly noticed.                          
REPRESENTATIVE BERKOWITZ withdrew his objection.                               
REPRESENTATIVE PORTER recalled the Judiciary Committee had gone                
through this kind of legislation a number of times in years past               
and had always drawn defense bar testimony.                                    
CHAIRMAN GREEN asked if there was further objection to the motion?             
Hearing none, CSHB 122(JUD) as amended moved from the House                    
Judiciary Standing Committee.                                                  
Number 1779                                                                    
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at             
3:17 p.m.                                                                      

Document Name Date/Time Subjects