Legislature(1997 - 1998)
04/15/1998 01:12 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 SPONSOR(S): REPRESENTATIVES(S) ROKEBERG, SANDERS, Kohring 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: ELTON; 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 purposes. 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 program. 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 26. 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 departments. 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 legislation. 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 bill. 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 applicant. 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 certification. 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 standards. 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 areas. 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 legislation. Number 0140 CHAIRMAN GREEN asked where the statutory designated receipts come from. 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 Committee. 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 resolution. 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 constitution. CHAIRMAN GREEN said he interprets this language as a regular session being 90 days and with a two-thirds vote an extension of 10 days. 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 clarification. 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 suits". 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 reads: 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 justice". 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 crime. 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 adopted. 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 rule? 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 notes. 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. ADJOURNMENT Number 1779 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at 3:17 p.m.