Legislature(1999 - 2000)

04/09/1999 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                                                                     
                   April 9, 1999                                                                                                
                     1:05 p.m.                                                                                                  
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Representative Pete Kott, Chairman                                                                                              
Representative Joe Green                                                                                                        
Representative Norman Rokeberg                                                                                                  
Representative Lisa Murkowski                                                                                                   
Representative Eric Croft                                                                                                       
Representative Beth Kerttula                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
Representative Jeannette James                                                                                                  
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
HOUSE BILL NO. 57                                                                                                               
"An Act relating to immunity for certain claims against the state,                                                              
a municipality, or agents, officers, or employees of either,                                                                    
arising out of or in connection with the year 2000 date change; and                                                             
providing for an effective date."                                                                                               
                                                                                                                                
     - MOVED CSHB 57(JUD) OUT OF COMMITTEE                                                                                      
                                                                                                                                
HOUSE BILL NO. 43                                                                                                               
"An Act relating to police training surcharges imposed for                                                                      
violations of municipal ordinances."                                                                                            
                                                                                                                                
     - MOVED HB 43 OUT OF COMMITTEE                                                                                             
                                                                                                                                
HOUSE BILL NO. 34                                                                                                               
"An Act relating to the crime of misprision of a crime against a                                                                
child."                                                                                                                         
                                                                                                                                
     - MOVED CSHB 34(JUD) OUT OF COMMITTEE                                                                                      
                                                                                                                                
HOUSE BILL NO. 151                                                                                                              
"An Act relating to revocation and reinstatement of the driver's                                                                
license of a person at least 14 but not yet 21 years of age."                                                                   
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
SENATE COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 99(FIN)                                                                         
"An Act to clarify the meaning of 'decennial census of the United                                                               
States' in art. VI, Constitution of the State of Alaska, to prevent                                                             
discrimination in the redistricting of the house of representatives                                                             
and the senate, and to prohibit expenditures of public funds for                                                                
population surveys or sampling for certain purposes relating to                                                                 
legislative redistricting without an appropriation."                                                                            
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
* HOUSE JOINT RESOLUTION NO. 17                                                                                                 
Proposing amendments to the Constitution of the State of Alaska                                                                 
relating to the nomination, selection, appointment, and public                                                                  
approval or rejection of justices of the supreme court and of                                                                   
judges of courts established by the legislature that have as an                                                                 
exclusive purpose the exercise of appellate jurisdiction over                                                                   
judicial acts and proceedings, and requiring legislative                                                                        
confirmation of those justices and judges.                                                                                      
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
* HOUSE BILL NO. 135                                                                                                            
"An Act relating to use of eavesdropping and recording devices by                                                               
peace officers."                                                                                                                
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
(* First public hearing)                                                                                                        
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: HB  57                                                                                                                    
SHORT TITLE: STATE & MUNI IMMUNITY FOR Y2K                                                                                      
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 1/22/99        64     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/22/99        64     (H)  CRA, JUDICIARY                                                                                      
 1/22/99        64     (H)  ZERO FISCAL NOTE (ADMINISTRATION)                                                                   
 1/22/99        64     (H)  GOVERNOR'S TRANSMITTAL LETTER                                                                       
 2/04/99               (H)  CRA AT  8:00 AM CAPITOL 124                                                                         
 2/04/99               (H)  MOVED OUT OF COMMITTEE                                                                              
 2/04/99               (H)  MINUTE(CRA)                                                                                         
 2/05/99       142     (H)  CRA RPT  5DP 1NR                                                                                    
 2/05/99       142     (H)  DP: DYSON, MORGAN, HARRIS, MURKOWSKI,                                                               
 2/05/99       142     (H)  HALCRO; NR: KOOKESH                                                                                 
 2/05/99       142     (H)  ZERO FISCAL NOTE (ADMINISTRATION)                                                                   
                            1/22/99                                                                                             
 3/15/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 3/15/99               (H)  HEARD AND HELD                                                                                      
 3/15/99               (H)  MINUTE(JUD)                                                                                         
 3/17/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 3/17/99               (H)  MOVED CSHB 57(JUD) OUT OF COMMITTEE                                                                 
 3/17/99               (H)  MINUTE(JUD)                                                                                         
 4/07/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/07/99               (H)  HEARD AND HELD                                                                                      
 4/07/99               (H)  MINUTE(JUD)                                                                                         
 4/08/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/08/99               (H)  HEARD AND HELD                                                                                      
 4/08/99               (H)  MINUTE(JUD)                                                                                         
 4/09/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB  43                                                                                                                    
SHORT TITLE: MUNI. ORDINANCES:  POLICE TRAINING SURCHARGE                                                                       
SPONSOR(S): REPRESENTATIVES(S) DAVIS                                                                                            
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 1/19/99        29     (H)  PREFILE RELEASED 1/15/99                                                                            
 1/19/99        29     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/19/99        29     (H)  CRA, JUDICIARY, FINANCE                                                                             
 3/04/99               (H)  CRA AT  8:00 AM CAPITOL 124                                                                         
 3/04/99               (H)  MOVED OUT OF COMMITTEE                                                                              
 3/04/99               (H)  MINUTE(CRA)                                                                                         
 3/05/99       358     (H)  CRA RPT  7DP                                                                                        
 3/05/99       359     (H)  DP: JOULE, HARRIS, KOOKESH, MORGAN,                                                                 
 3/05/99       359     (H)  DYSON, MURKOWSKI, HALCRO                                                                            
 3/05/99       359     (H)  2 ZERO FNS (DCRA, DPS)                                                                              
 4/09/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB  34                                                                                                                    
SHORT TITLE: REPORTING CRIMES AGAINST CHILDREN                                                                                  
SPONSOR(S): REPRESENTATIVES(S) DYSON                                                                                            
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 1/19/99        27     (H)  PREFILE RELEASED 1/8/99                                                                             
 1/19/99        27     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/19/99        27     (H)  JUDICIARY                                                                                           
 4/07/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/07/99               (H)  HEARD AND HELD/SUBCOMMITTEE                                                                         
 4/07/99               (H)  MINUTE(JUD)                                                                                         
 4/08/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/08/99               (H)  MINUTE(JUD)                                                                                         
 4/08/99               (H)  HEARD AND HELD                                                                                      
 4/09/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB 151                                                                                                                    
SHORT TITLE: REVOCATION OF MINOR DRIVER'S LICENSE                                                                               
SPONSOR(S): REPRESENTATIVES(S) KOTT, Austerman                                                                                  
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 3/22/99       531     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 3/22/99       531     (H)  JUD                                                                                                 
 3/24/99       562     (H)  COSPONSOR(S): AUSTERMAN                                                                             
 3/29/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 3/29/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 4/07/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/07/99               (H)  TABLED                                                                                              
 4/07/99               (H)  MINUTE(JUD)                                                                                         
 4/08/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/08/99               (H)  HEARD AND HELD                                                                                      
 4/08/99               (H)  MINUTE(JUD)                                                                                         
 4/09/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
GAIL VOIGTLANDER, Assistant Attorney General                                                                                    
Special Litigation Section                                                                                                      
Civil Division                                                                                                                  
Department of Law                                                                                                               
1031 West 4th Avenue, Suite 200                                                                                                 
Anchorage, Alaska 99501-1994                                                                                                    
Telephone:  (907) 269-5100                                                                                                      
POSITION STATEMENT: Testified on HB 57.                                                                                         
                                                                                                                                
BRAD THOMPSON, Director                                                                                                         
Division of Risk Management                                                                                                     
Department of Administration                                                                                                    
P.O. Box 110218                                                                                                                 
Juneau, Alaska 99811-0218                                                                                                       
Telephone:  (907) 465-5723                                                                                                      
POSITION STATEMENT: Testified on HB 57.                                                                                         
                                                                                                                                
DEB DAVIDSON, Legislative Administrative Assistant                                                                              
   to Representative Gary Davis                                                                                                 
Alaska State Legislature                                                                                                        
Capitol Building, Room 422                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-4457                                                                                                      
POSITION STATEMENT: Provided sponsor statement to HB 43.                                                                        
                                                                                                                                
LADDIE SHAW, Executive Director                                                                                                 
Alaska Police Standards Council                                                                                                 
Department of Public Safety                                                                                                     
P.O. Box 111200                                                                                                                 
Juneau, Alaska 99811-1200                                                                                                       
Telephone:  (907) 465-4378                                                                                                      
POSITION STATEMENT: Testified in support of HB 43.                                                                              
                                                                                                                                
REPRESENTATIVE FRED DYSON                                                                                                       
Alaska State Legislature                                                                                                        
Capitol Building, Room 104                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2199                                                                                                      
POSITION STATEMENT: Sponsor of HB 34.                                                                                           
                                                                                                                                
ANNE D. CARPENETI, Assistant Attorney General                                                                                   
Legal Services Section-Juneau                                                                                                   
Criminal Division                                                                                                               
Department of Law                                                                                                               
P.O. Box 110300                                                                                                                 
Juneau, Alaska 99811-0300                                                                                                       
Telephone:  (907) 465-3428                                                                                                      
POSITION STATEMENT: Testified on HB 34 and HB 151.                                                                              
                                                                                                                                
LOREN JONES, Director                                                                                                           
Central Office                                                                                                                  
Division of Alcoholism and Drug Abuse                                                                                           
Department of Health and Social Services                                                                                        
P.O. Box 110607                                                                                                                 
Juneau, Alaska 99811-0607                                                                                                       
Telephone:  (907) 465-2071                                                                                                      
POSITION STATEMENT: Testified on HB 151.                                                                                        
                                                                                                                                
RONALD JORDAN                                                                                                                   
8170 Woodgreen Circle                                                                                                           
Anchorage, Alaska 99518                                                                                                         
Telephone:  (907) 344-6302                                                                                                      
POSITION STATEMENT: Testified on HB 151.                                                                                        
                                                                                                                                
KEVIN HYDE, President                                                                                                           
Good Legislation Assures Democracy (G.L.A.D.)                                                                                   
P.O. Box 105                                                                                                                    
Soldotna, Alaska 99669                                                                                                          
Telephone:  (907) 262-4889                                                                                                      
POSITION STATEMENT: Testified on HB 151.                                                                                        
                                                                                                                                
JUANITA HENSLEY, Administrator                                                                                                  
Director's Office                                                                                                               
Division of Motor Vehicles                                                                                                      
Department of Administration                                                                                                    
P.O. Box 110200                                                                                                                 
Juneau, Alaska 99811-0200                                                                                                       
Telephone:  (907) 465-5648                                                                                                      
POSITION STATEMENT: Testified on HB 151.                                                                                        
                                                                                                                                
VIRGINIA ESPENSHADE, Executive Director                                                                                         
Kenai Peninsula Youth Court                                                                                                     
3691 Ben Walters Lane, Number 3                                                                                                 
Homer, Alaska 99603                                                                                                             
Telephone:  (907) 235-7575                                                                                                      
POSITION STATEMENT: Testified on HB 151.                                                                                        
                                                                                                                                
LINDA WRIGHT                                                                                                                    
P.O. Box 105                                                                                                                    
Soldotna, Alaska 99669                                                                                                          
Telephone:  (907) 262-4889                                                                                                      
POSITION STATEMENT: Testified on HB 151.                                                                                        
                                                                                                                                
JACK HARSHFIELD                                                                                                                 
203 Ocean Drive Loop, Number 16                                                                                                 
Homer, Alaska 99603                                                                                                             
Telephone:  (907) 235-7641                                                                                                      
POSITION STATEMENT: Testified on HB 151.                                                                                        
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-26, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee                                                                
meeting to order at 1:05 p.m.  Members present at the call to order                                                             
were Representatives Kott.  The rest of the members arrived at some                                                             
time after the call to order.                                                                                                   
                                                                                                                                
CHAIRMAN KOTT called for a brief at-ease at 1:06 p.m. to establish                                                              
a quorum and called the meeting back to order at 1:16 p.m.                                                                      
                                                                                                                                
HB 57 - STATE & MUNI IMMUNITY FOR Y2K                                                                                           
                                                                                                                                
CHAIRMAN KOTT announced the first order of business is HB 57, "An                                                               
Act relating to immunity for certain claims against the state, a                                                                
municipality, or agents, officers, or employees of either, arising                                                              
out of or in connection with the year 2000 date change; and                                                                     
providing for an effective date."                                                                                               
                                                                                                                                
CHAIRMAN KOTT indicated there is a committee substitute for HB 57                                                               
[1-GH1005\G, Ford, 4/8/99].                                                                                                     
                                                                                                                                
CHAIRMAN KOTT noted that Gail Voigtlander from the Department of                                                                
Law is on the teleconference network.  He asked her to comment on                                                               
the committee substitute.                                                                                                       
                                                                                                                                
Number 0184                                                                                                                     
                                                                                                                                
GAIL VOIGTLANDER, Assistant Attorney General, Special Litigation                                                                
Section, Civil Division, Department of Law testified via                                                                        
teleconference from Anchorage.  The committee substitute changes                                                                
the state back to immunity without a qualifier, a concept brought                                                               
in from HB 82.  Her only comment is that this would make summary                                                                
disposition difficult.  If there are issues of fact involved, under                                                             
Alaska law, they are not susceptible to summary adjudication.                                                                   
                                                                                                                                
Number 0415                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT referred to a memorandum dated April 9, 1999 from                                                                 
Michael F. Ford [Legislative Legal and Research Services,                                                                       
Legislative Affairs Agency] to Representative Pete Kott, and stated                                                             
it is the opinion of Mr. Ford that regional educational attendance                                                              
areas (REAA'S) are under the definition of the term "state".  They                                                              
would, therefore, have blanket immunity.  He asked Representative                                                               
Rokeberg whether that addresses his concern.                                                                                    
                                                                                                                                
Number 0457                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG replied it is helpful, but it depends on                                                                
how the totality of the bill ends up.                                                                                           
                                                                                                                                
Number 0539                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said he is fine with making the legal opinion                                                              
of Mr. Ford as part of the record.  He had a case that went all the                                                             
way to the Ninth Circuit Court of Appeals and lost on the issue of                                                              
whether REAA'S are an instrumentality of the state for the purposes                                                             
of a federal statute.  It is really not as clean as the memorandum                                                              
suggests, but if the statute is clear, in this case, it is                                                                      
sufficient.                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT said it is crystal clear in the memorandum that                                                                   
REAA'S are considered part of the term "state" as an                                                                            
instrumentality of it.                                                                                                          
                                                                                                                                
Number 0609                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN made a motion to offer Amendment 8.  It reads                                                              
as follows:                                                                                                                     
                                                                                                                                
     Page 3, line 9, following "others"                                                                                         
                                                                                                                                
          Insert:  "The immunity provided in this section applies                                                               
          unless the affected party shows by clear and convincing                                                               
          evidence that the state did not use good faith efforts to                                                             
          avoid the failure that caused the damages claimed in the                                                              
          civil action.  As used in this section, the state                                                                     
          establishes its good faith efforts as a matter of law if                                                              
          it has made efforts to identify, test, and develop                                                                    
          contingency plans for critical systems."                                                                              
                                                                                                                                
     Page 4, line 23, following "municipality"                                                                                  
                                                                                                                                
          Insert:  "The immunity provided in this section applies                                                               
          unless the affected party shows by clear and convincing                                                               
          evidence that the municipality did not use good faith                                                                 
          efforts to avoid the failure that caused the damages                                                                  
          claimed in the civil action.  As used in this section,                                                                
          the municipality establishes its good faith efforts as a                                                              
          matter of law if it has made efforts to identify, test,                                                               
          and develop contingency plans for critical systems."                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG objected.                                                                                               
                                                                                                                                
REPRESENTATIVE GREEN noted that there is an error to the page 4                                                                 
portion of the amendment.  It should read, "Page 4, line 29,                                                                    
following 'law'".  In addition, all material through page 5, line                                                               
21, to the end of the sentence should be deleted after the word                                                                 
"law".  The amendment would in effect give a municipality the same                                                              
sort of immunity as the state, if it shows the same sort of                                                                     
reasonable actions.                                                                                                             
                                                                                                                                
Number 0919                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN made a motion to amend Amendment 8.                                                                        
                                                                                                                                
REPRESENTATIVE KERTTULA noted an error to the page 3 portion of the                                                             
amendment.  It should read, "Page 3, line 9, following 'others'".                                                               
                                                                                                                                
CHAIRMAN KOTT asked whether there is any objection to amending                                                                  
Amendment 8.  There being no objection, it was so moved.                                                                        
                                                                                                                                
Number 0981                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN said Amendment 8, as amended, removes a litany                                                             
of things that aren't necessary.  Lists, in general, are not a good                                                             
idea because something usually will be omitted creating a loophole.                                                             
By going back to the original intent of reasonable efforts, the                                                                 
state would be immune from litigation and the onus would be put on                                                              
the person claiming the damages.  That same immunity would also                                                                 
prevail to municipalities because of the discussion on the                                                                      
unfairness of providing immunity for the state, but not for the                                                                 
municipalities.                                                                                                                 
                                                                                                                                
Number 1091                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG noted that the intent of the language in HB
82 is not to be specific as to the performance of a particular                                                                  
element in the list.  Amendment 8, as amended, is more specific by                                                              
calling for the identification, testing, and development of                                                                     
contingency plans for critical systems.  It also sets up a                                                                      
different standard of showing clear and convincing evidence.  He                                                                
wants to divide the question.  The state is already in progress.                                                                
It obviates the need, otherwise it could generate lawsuits.                                                                     
                                                                                                                                
Number 1217                                                                                                                     
                                                                                                                                
BRAD THOMPSON, Director, Division of Risk Management, Department of                                                             
Administration, testified in Juneau.  There has been a lot of                                                                   
testimony on the need for a clean and efficient method for the                                                                  
state or a municipality to extricate itself from litigation                                                                     
cost-effectively.  It is an issue of making it a matter of law by                                                               
showing the efforts set forth.  The inequity argument between the                                                               
state and a municipality is for the legislature to consider.                                                                    
                                                                                                                                
Number 1312                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA said the amendment comes closer to                                                                      
requiring clear and convincing evidence.  It also makes it a matter                                                             
of law, if the state or a municipality shows efforts.  She asked                                                                
Ms. Voigtlander whether she is more comfortable with that standard.                                                             
                                                                                                                                
Number 1338                                                                                                                     
                                                                                                                                
MS. VOIGTLANDER replied, obviously, no qualification is the first                                                               
preference, but it addresses virtuous claims in a form more                                                                     
consistent with immunity laws.  That being, testing the immunity                                                                
early on without having to go to discovery or preparing and                                                                     
presenting a jury trial.  The amendment provides for clear and                                                                  
convincing evidence, which is a higher standard than preponderance                                                              
of evidence.  It also provides that the state or a municipality                                                                 
establishes good faith efforts as a matter of law.  If adopted, the                                                             
legislative history would show that it would be accomplished                                                                    
summarily with a summary judgment rather than having to go to                                                                   
trial.                                                                                                                          
                                                                                                                                
Number 1425                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to divide the question                                                                    
between Page 3, line 9; and Page 4, line 29.                                                                                    
                                                                                                                                
REPRESENTATIVE CROFT objected.  The same standards should apply to                                                              
the state and the municipalities for the reasons that the committee                                                             
members have discussed:  "What's good for the goose is good for the                                                             
gander."                                                                                                                        
                                                                                                                                
CHAIRMAN KOTT called for a roll call vote.  Representatives                                                                     
Rokeberg and Kott voted in favor of the motion. Representatives                                                                 
Green, Murkowski, Croft and Kerttula voted against the motion.  The                                                             
motion failed by a vote of 2-4.                                                                                                 
                                                                                                                                
Number 1507                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said, given the testimony today, he                                                                     
believes that the state and Administration prefers a clean immunity                                                             
by making a distinction between the matters of fact and law which                                                               
is why he wanted to divide the question.  On the other hand, he can                                                             
support it, if the committee wishes, because it makes a different                                                               
type of standard for municipal governments than what would be                                                                   
applicable in HB 82 for the private sector.                                                                                     
                                                                                                                                
Number 1570                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA said, "You want this to be a question of                                                                
law, if you're going to do anything with the state because you                                                                  
don't want to have to go to jury.  So, whether or not the                                                                       
government can prove it as a matter of fact, technically what you                                                               
want to do is prove it as a matter of law.  And, you want to allow                                                              
the state to come in without having to go through lengthy                                                                       
discovery, which is what Ms. Voigtlander was describing and why the                                                             
costs go up so hard.  And, I think, that the state's going to be                                                                
able to meet this.  And, if they can't, they've missed something                                                                
pretty significant.  So, that's--that's why I--I think it's fair to                                                             
keep them together.  I think we've made great efforts to--I think                                                               
they can meet this standard.  As far as the municipalities go, if                                                               
they haven't done this, they're not gonna get knocked out and                                                                   
they'll gonna have to go to the trier of fact, and it--and it                                                                   
manages very nicely to encompass the real--the real heart of our                                                                
concerns."                                                                                                                      
                                                                                                                                
Number 1622                                                                                                                     
                                                                                                                                
MS. VOIGTLANDER said the language as well as the legislative intent                                                             
demonstrates that this is to be decided as a matter of law, as a                                                                
preliminary matter to effectuate the purpose behind immunity:  to                                                               
keep the public officials and coffers from having to diminish                                                                   
resources for litigation rather than other matters.  She also noted                                                             
that Amendment 8, as amended, is consistent with the first                                                                      
committee substitute.                                                                                                           
                                                                                                                                
Number 1679                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT reminded the committee members that 120 of 200                                                                    
critical systems of the state are still out of compliance.                                                                      
                                                                                                                                
Number 1683                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN said this allows for litigation against                                                                    
municipalities for those who have not exercised the hurdles in the                                                              
bill.  If they don't, they lose their immunity and stand on their                                                               
own.                                                                                                                            
                                                                                                                                
Number 1733                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT said he hopes that the state is making a reasonable                                                               
effort to bring those 120 critical systems into compliance,                                                                     
otherwise the state will be subject to the "bye, bye budget pie."                                                               
                                                                                                                                
Number 1746                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said the adoption of Amendment 8, as                                                                    
amended, assures that there will be litigation against the state.                                                               
                                                                                                                                
REPRESENTATIVE GREEN said he disagrees.                                                                                         
                                                                                                                                
CHAIRMAN KOTT called for a roll call vote.  Representatives Green,                                                              
Murkowski, Croft and Kerttula voted in favor of the motion.                                                                     
Representatives Rokeberg and Kott voted against the motion.  The                                                                
motion passed by a vote of 4-2.                                                                                                 
                                                                                                                                
Number 1794                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move the committee                                                                     
substitute to HB 57, as amended, from the committee with individual                                                             
recommendations and the attached fiscal note(s).  There being no                                                                
objection, CSHB 57(JUD) was so moved from the House Judiciary                                                                   
Standing Committee.                                                                                                             
                                                                                                                                
HB 43 - MUNI. ORDINANCES:  POLICE TRAINING SURCHARGE                                                                            
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is HB 43, "An                                                                
Act relating to police training surcharges imposed for violations                                                               
of municipal ordinances."                                                                                                       
                                                                                                                                
Number 1881                                                                                                                     
                                                                                                                                
DEB DAVIDSON, Legislative Administrative Assistant to                                                                           
Representative Gary Davis, Alaska State Legislature, said last year                                                             
the legislature passed a bill that expanded the crimes for which                                                                
surcharges are imposed, and increased the amount of those                                                                       
surcharges to go to the Police Training Fund.  There is concern                                                                 
that part of the statute can be interpreted to apply to civil                                                                   
penalties as well as criminal violations.  There is also concern                                                                
that a municipality is not able to enforce an entire ordinance                                                                  
rather than just the penalty for a violation of an ordinance.  This                                                             
bill is a housekeeping effort to clarify those issues.  Section 1                                                               
more specifically states that only criminal violations have a                                                                   
surcharge imposed upon them.  Section 2 makes it very clear that a                                                              
penalty for a violation of an ordinance may not be imposed unless                                                               
the municipality has passed an ordinance to authorize it.                                                                       
                                                                                                                                
Number 1955                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Ms. Davidson whether she is aware of anyone in                                                              
the Kenai Legislative Information Office (LIO) wanting to testify.                                                              
He noted that there was a request from that office to accommodate                                                               
some people.                                                                                                                    
                                                                                                                                
MS. DAVIDSON replied she knows that the Kenai Peninsula Borough's                                                               
attorney was interested in testifying.  She is the one who                                                                      
originally brought the issue to Representative Davis.  She was                                                                  
going to try to be at the Kenai LIO in the event of questions.                                                                  
                                                                                                                                
Number 1984                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT called for a brief at-ease at 1:50 p.m. and called                                                                
the meeting back to order at 1:51 p.m.                                                                                          
                                                                                                                                
Number 2001                                                                                                                     
                                                                                                                                
LADDIE SHAW, Executive Director, Alaska Police Standards Council,                                                               
Department of Public Safety, testified in Juneau.  He declared his                                                              
support of HB 43.                                                                                                               
                                                                                                                                
Number 2051                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked Mr. Shaw to give some examples of                                                                 
misdemeanors where there aren't sentences of incarcerations that                                                                
could now have this surcharge.                                                                                                  
                                                                                                                                
Number 2063                                                                                                                     
                                                                                                                                
MR. SHAW replied reckless driving is an example.  There is such a                                                               
broad range of misdemeanors that he would have to look at                                                                       
specifics.                                                                                                                      
                                                                                                                                
Number 2093                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA said this is talking about the low-level                                                                
misdemeanors.                                                                                                                   
                                                                                                                                
MR. SHAW indicated yes.                                                                                                         
                                                                                                                                
Number 2124                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move HB 43 from the                                                                    
committee with individual recommendations and the attached fiscal                                                               
note(s).  There being no objection, HB 43 was so moved from the                                                                 
House Judiciary Standing Committee.                                                                                             
                                                                                                                                
HB 34 - REPORTING CRIMES AGAINST CHILDREN                                                                                       
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is HB 34, "An                                                                
Act relating to the crime of misprision of a crime against a                                                                    
child."                                                                                                                         
                                                                                                                                
CHAIRMAN KOTT indicated there is a proposed committee substitute                                                                
and called for a motion to adopt it.                                                                                            
                                                                                                                                
Number 2174                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed                                                                     
committee substitute for HB 34 [1-LS0241\G, Luckhaupt, 4/8/99].                                                                 
There being no objection, it was so moved.                                                                                      
                                                                                                                                
CHAIRMAN KOTT called on Representative Dyson, sponsor of the bill;                                                              
and, Mr. Gerald Luckhaupt, drafter of the bill.                                                                                 
                                                                                                                                
Number 2245                                                                                                                     
                                                                                                                                
REPRESENTATIVE FRED DYSON, Alaska State Legislature, thanked the                                                                
committee members for their diligent efforts.  He took the concerns                                                             
of the committee members and the result is the proposed committee                                                               
substitute.                                                                                                                     
                                                                                                                                
Number 2275                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Luckhaupt whether the phrase,                                                                 
"punishable as a felony", encompasses sexual assault.                                                                           
                                                                                                                                
GERALD LUCKAUPT, Attorney, Legislative Legal and Research Services,                                                             
Legislative Affairs Agency, replied there are only three forms of                                                               
sexual assault and they are all felonies.  Sexual assault is                                                                    
nonconsensual.                                                                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG noted he is confusing it with sexual abuse                                                              
of a minor.                                                                                                                     
                                                                                                                                
MR. LUCKAUPT said there are five forms of sexual abuse of a minor,                                                              
and it doesn't look at consent.                                                                                                 
                                                                                                                                
Number 2307                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN referred to page 1, line 9, of the bill and                                                                
asked Mr. Luckaupt to explain the phrase, "by another".                                                                         
                                                                                                                                
MR. LUCKAUPT replied it means by a person other than the person who                                                             
committed the crime.  It alleviates the concerns of incriminating                                                               
one's self.                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN noted the phrase, "by another", is legal                                                                   
drafting terminology.                                                                                                           
                                                                                                                                
Number 2355                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI referred to the affirmative defense and                                                                
noted that witnessing a sexual assault is after the fact.  She is                                                               
troubled by the word "and" on page 2, line 5, of the bill.                                                                      
                                                                                                                                
Number 2384                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON said according to her logic she would also                                                                 
have a problem with the phrase, "or an attempt to commit one of                                                                 
those crimes", on page 1, starting on line 8, of the bill.  He                                                                  
wants to stop the crime.  He stopped a kidnapping that he thought                                                               
was going to end up in sexual assault.  He got right in the middle,                                                             
which is what he wants folks to do.                                                                                             
                                                                                                                                
Number 2430                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said, according to the committee's discussion                                                                     
yesterday, if a person tried to stop an offense and failed of which                                                             
there was a death, the committee didn't want that person to walk                                                                
away without reporting it.  In addition, if a person attempts to                                                                
stop a sexual assault, there is sexual contact and penetration.  It                                                             
can conceivably be stopped before it is completed.                                                                              
                                                                                                                                
TAPE 99-26, SIDE B                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT continued.  That is why he tied it into a two-step                                                                
process.                                                                                                                        
                                                                                                                                
Number 0023                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked Representative Dyson whether he reported                                                             
the crime that he stopped.                                                                                                      
                                                                                                                                
REPRESENTATIVE DYSON replied the police showed up and put all the                                                               
parties in jail.                                                                                                                
                                                                                                                                
Number 0039                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said, if a person stops a murder, that person                                                              
hasn't stopped an attempted murder.  He asked whether that person                                                               
would be obligated to report it.                                                                                                
                                                                                                                                
REPRESENTATIVE DYSON replied yes.                                                                                               
                                                                                                                                
Number 0062                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said there almost has to have the language                                                              
"stopped" or else a person could be an accessory to a crime.                                                                    
                                                                                                                                
REPRESENTATIVE DYSON said, "That is excellent insight."                                                                         
                                                                                                                                
REPRESENTATIVE ROKEBERG said it still troubles him, however.                                                                    
                                                                                                                                
MR. LUCKHAUPT said it is more complicated than that.  They are two                                                              
different concepts.                                                                                                             
                                                                                                                                
Number 0137                                                                                                                     
                                                                                                                                
ANNE D. CARPENETI, Assistant Attorney General, Legal Services                                                                   
Section-Juneau, Criminal Division, Department of Law, testified in                                                              
Juneau.  In working with the sponsor, it was the department's                                                                   
intent to keep it as limited as possible because of all the                                                                     
problems that have been discussed in this committee.  She noted,                                                                
yesterday, it was just murder and kidnapping and today it is sexual                                                             
assault and felonious assaults.  The problem is, the victim                                                                     
specifically needs to be excluded from requiring to testify.  This                                                              
bill does not do that.  For example, rape and assault would be                                                                  
required to be reported by the victim at this point when it ought                                                               
to be the choice of a victim, even though the victim is a child.                                                                
She would prefer to leave it at murder and kidnapping so that the                                                               
problems discussed would be limited to those particular offenses.                                                               
The language, "by another", is for the person who commits the                                                                   
crime.  It does not require the defendant to report the crime.                                                                  
This doesn't exclude the victims from having the responsibility to                                                              
report the crime.                                                                                                               
                                                                                                                                
Number 0197                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN said prior testimony indicated that the                                                                    
phrase, "by another", was someone other than the victim.                                                                        
                                                                                                                                
MS. CARPENETI said the person who is the victim is also a witness                                                               
to the crime.  The phrase, "by another", excludes the                                                                           
responsibility of the perpetrator from reporting a crime.                                                                       
                                                                                                                                
Number 0221                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON suggested inserting the phrase, "by another                                                                
not the victim", on page 1, line 9, of the bill.                                                                                
                                                                                                                                
MS. CARPENETI suggested inserting the phrase, "a person other than                                                              
the victim", on page 1, line 6, of the bill.                                                                                    
                                                                                                                                
Number 0241                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said it poses a problem that needs to be                                                                   
fixed.                                                                                                                          
                                                                                                                                
REPRESENTATIVE DYSON said many murder victims would not be charged.                                                             
                                                                                                                                
Number 0264                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said that concern has been with the bill since it was                                                             
introduced in the House.  It was felt by Legislative Legal and                                                                  
Research Services [Legislative Affairs Agency] that there was                                                                   
enough distinction between a person and a child that the victim has                                                             
to be a child.  Senate Bill 5 deals with crimes against anyone, not                                                             
just children.  The language reads in the first line, "A person,                                                                
other than a victim,...".  It wouldn't hurt to put that in here.                                                                
It would make it easier for a prosecutor to charge a 15-year-old                                                                
victim of sexual assault or kidnapping for not reporting an                                                                     
offense.  He doesn't think that would happen, but to ensure that it                                                             
doesn't happen he agreed with inserting the language suggested by                                                               
Ms. Carpeneti on line 6.                                                                                                        
                                                                                                                                
Number 0348                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON said it would do no harm.                                                                                  
                                                                                                                                
Number 0361                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN wondered whether anybody would care that the                                                               
phrase, "by another", voids a perpetrator.  In other words, would                                                               
anybody care that a perpetrator would be subject to a class A                                                                   
misdemeanor?                                                                                                                    
                                                                                                                                
Number 0384                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON said that is a marvelous point, but there are                                                              
Fifth Amendment implications of self-incrimination.                                                                             
                                                                                                                                
Number 0391                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said he doesn't think the state could compel a                                                                    
perpetrator to come forward as a witness against himself.  The                                                                  
federal misprision statute applied against defenders.  It's easier                                                              
to say that a crime committed by someone else would avoid                                                                       
prosecution.  The statute is clearly constitutional in that it only                                                             
applies to persons other than the person doing the crime.  At                                                                   
least, it's constitutional in the aspect that it's not going to                                                                 
compel someone to be a witness against himself.  There is a need                                                                
for the phrase, "by another"; but, adding the phrase to page 1,                                                                 
line 6, of the bill, "A person, other than the victim", doesn't                                                                 
cause any harm.                                                                                                                 
                                                                                                                                
Number 0493                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN made a motion to insert the phrase, "other                                                                 
than the victim", on line 6 between "person" and "commits".  There                                                              
being no objection, it was so moved.                                                                                            
                                                                                                                                
Number 0513                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked whether the phrase, "by another",                                                                 
should remain on line 9.                                                                                                        
                                                                                                                                
CHAIRMAN KOTT indicated yes.                                                                                                    
                                                                                                                                
Number 0530                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said the current draft is excellent and avoids                                                             
a lot of the pitfalls.  He wondered whether "attempt" should be in                                                              
the bill.  If a person only sees the beginning of a crime, should                                                               
that person report it.  In addition, if a person acts to stop a                                                                 
crime, by definition, that person hasn't stopped the attempt, and                                                               
should the affirmative defense apply to reporting it.                                                                           
                                                                                                                                
Number 0600                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON stated, if the committee comes up with a                                                                   
better way to handle that, he noted he would work hard to include                                                               
it.                                                                                                                             
                                                                                                                                
Number 0616                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether a person would be covered with an                                                                   
affirmative defense for witnessing a child being dragged into a car                                                             
which is later determined to be a kidnapping.                                                                                   
                                                                                                                                
Number 0635                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said, if a person sees a 10-year-old child being                                                                  
dragged into a car and it reasonably appears to be a kidnapping,                                                                
that person would have a duty to report it to the police.  That                                                                 
person could also choose to intervene.  It was Representative                                                                   
Dyson's desire to add elements to the offense of reporting or                                                                   
aiding the victim.  At this point, a witness has to call the police                                                             
and if that witness doesn't, he has committed a crime.  There is an                                                             
affirmative defense if that witness wasn't able to call the police                                                              
out of fear for his own safety, of another person, or of the                                                                    
failure to stop the commission of a crime.                                                                                      
                                                                                                                                
Number 0716                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said the language, "knows or reasonably should                                                             
know", is used to determine if the person is a child or not, but it                                                             
is not used to determine if there is a potential murder or                                                                      
kidnapping.  He suggested including that language in the witnessing                                                             
section thereby putting that same level of knowledge there as well.                                                             
It would read, "...if the person witnesses what the person knows or                                                             
reasonably should know is a murder, kidnapping,..."                                                                             
                                                                                                                                
Number 0776                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON said he assumed that ignorance would be a                                                                  
positive defense.                                                                                                               
                                                                                                                                
REPRESENTATIVE CROFT said he is not sure ignorance would be a                                                                   
positive defense.                                                                                                               
                                                                                                                                
MR. LUCKHAUPT said he doesn't see why it wouldn't be available.  A                                                              
jury would be instructed to look at whether or not a person would                                                               
know that he was witnessing a crime.                                                                                            
                                                                                                                                
Number 0821                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT said from the standpoint of murder, sexual assault or                                                             
assault that is punishable as a felony, a person could determine                                                                
that there is some severe physical abuse that could lead to death.                                                              
He is troubled, however, with kidnapping.  What about a child                                                                   
screaming and yelling all the way to a car because that child's                                                                 
parent just told him that there are no more amusement rides today?                                                              
A child yelling "help me" is pretty clear, but without that                                                                     
verbalization it isn't as clear.                                                                                                
                                                                                                                                
Number 0868                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT said Representative Croft's language covers that                                                                  
concern and situations when a person is privy to certain facts.                                                                 
The language would also assist the trier of fact or a prosecutor                                                                
deciding a charge under this offense.                                                                                           
                                                                                                                                
Number 0958                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Representative Dyson whether he would have any                                                              
objection to inserting that language to make it clear.                                                                          
                                                                                                                                
REPRESENTATIVE DYSON replied no.                                                                                                
                                                                                                                                
Number 0972                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT made a motion to insert the language, "what                                                                
the person knows or reasonably should know is", on page 1, line 7                                                               
between "witnesses" and "a".                                                                                                    
                                                                                                                                
Number 1042                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked whether the language exonerates a person                                                             
who witnesses a fearsome type of scream from a child, not                                                                       
necessarily a verbalization.                                                                                                    
                                                                                                                                
Number 1082                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said, "What it gets us out of, the reasonably                                                              
should know, is the dumb and dumber situation.  I mean, if it's not                                                             
you and me, assuming we're not dumb and dumber, standing there                                                                  
looking at events that a reasonable person would know...You can't                                                               
say I was--I saw these things crying help, abuse, an attempted                                                                  
murder, but I really didn't know what it was.  I mean, you have                                                                 
to--it's not just that you knew, you could say 'I didn't know,' but                                                             
a reasonable person would have known in that situation that this                                                                
would call for some reporting.  I think it's pretty standard."                                                                  
                                                                                                                                
Number 1119                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON commented that he suspects this law would only                                                             
be applied to the flagrant cases.                                                                                               
                                                                                                                                
CHAIRMAN KOTT asked whether there is any objection to the motion.                                                               
There being none, it was so moved.                                                                                              
                                                                                                                                
Number 1158                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked Mr. Luckhaupt how he expects to get                                                               
an affirmative defense with an attempt.  She thinks that is                                                                     
impossible.  It illustrates her overall problem with the bill.                                                                  
It's such a moving target that it's hard to solve all the problems,                                                             
but a person could never act to stop an attempt because it is an                                                                
"attempt."  She declared it should be removed from the bill.  It                                                                
would create too many problems in trying to enforce it.                                                                         
                                                                                                                                
Number 1225                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT replied the availability of an affirmative defense                                                                
for merely attempting to commit a crime - a crime that is not                                                                   
completed - would be difficult.  It could be worded in terms of                                                                 
"attempts a crime and fails to complete it."  That would avail                                                                  
someone with an affirmative defense in a situation of stopping an                                                               
attempt thereby preventing the completion of the attempted crime.                                                               
It's a good question and concern.                                                                                               
                                                                                                                                
Number 1319                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA said she sees what Mr. Luckhaupt is saying,                                                             
but it starts to become circular, and she's not sure how it would                                                               
work.                                                                                                                           
                                                                                                                                
CHAIRMAN KOTT asked Mr. Luckhaupt whether he could work with that                                                               
language and incorporate it into the bill.                                                                                      
                                                                                                                                
Number 1404                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT replied, conceptually, the language could read, "or                                                               
the completion of the crime that was being attempted", after the                                                                
word "crime" on page 2, line 6, of the bill.  That would give a                                                                 
person an affirmative defense when witnessing an attempted crime                                                                
that is stopped before the crime is completed.                                                                                  
                                                                                                                                
CHAIRMAN KOTT asked whether everybody understands the conceptual                                                                
amendment.                                                                                                                      
                                                                                                                                
REPRESENTATIVE KERTTULA said she appreciates the work on it, but                                                                
she would feel better if attempt was removed from the bill.                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether there is any objection to the                                                                       
conceptual amendment.  There being none, it was so adopted.                                                                     
                                                                                                                                
Number 1597                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move the proposed                                                                      
committee substitute for HB 34 [1-LS024\G, Luckhaupt, 4/8/99], as                                                               
amended, from the committee with individual recommendations and the                                                             
attached fiscal note(s).                                                                                                        
                                                                                                                                
REPRESENTATIVE KERTTULA objected.  She appreciates the intent and                                                               
effort and believes that people need to step in and do the right                                                                
thing, but there is a reason for not having laws like these, that                                                               
being confusion.  Legally, she feels she has to object to the                                                                   
motion.                                                                                                                         
                                                                                                                                
CHAIRMAN KOTT called for a roll call vote.  Representatives                                                                     
Rokeberg, Murkowski, Croft and Kott voted in favor of the motion.                                                               
Representative Kerttula voted against the motion.  The motion                                                                   
passed by a vote of 4-1.  The CSHB 34(JUD), so moved from the House                                                             
Judiciary Standing Committee.                                                                                                   
                                                                                                                                
HB 151 - REVOCATION OF MINOR DRIVER'S LICENSE                                                                                   
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is HB 151, "An                                                               
Act relating to revocation and reinstatement of the driver's                                                                    
license of a person at least 14 but not yet 21 years of age."                                                                   
                                                                                                                                
CHAIRMAN KOTT indicated the committee will take up the committee                                                                
substitute for HB 151 [1-LS0492\N, Ford, 3/30/99].                                                                              
                                                                                                                                
Number 1815                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT called for a brief at-east at 2:41 p.m. and called                                                                
the meeting back to order at 2:44 p.m.                                                                                          
                                                                                                                                
Number 1844                                                                                                                     
                                                                                                                                
LOREN JONES, Director, Central Office, Division of Alcoholism and                                                               
Drug Abuse, Department of Health and Social Services, came before                                                               
the committee to testify.  There is a significant number of                                                                     
children who continue to use and lose their driver's licenses.                                                                  
Generally, when looking at a deterrent, there is a perception of                                                                
getting caught with a penalty that is swiftly applied.  He's not                                                                
sure, however, that works with children because they feel they are                                                              
fairly omnipotent.  Last year, the Administration sponsored SB 71                                                               
which transferred the approval of alcohol information schools from                                                              
the Division of Motor Vehicles [Department of Administration] to                                                                
the Division of Alcoholism and Drug Abuse [Department of Health and                                                             
Social Services].  The division felt that would allow it to develop                                                             
alcohol information that was age-appropriate.  Right now, the only                                                              
thing available to a 16-year-old who looses his driver's license is                                                             
a school primarily for adult drunk drivers.  That is not an                                                                     
appropriate place for a 16-year-old to learn about the use of                                                                   
alcohol and drugs or intervention.  The division also proposed                                                                  
funding local assessments to allow each community to work with                                                                  
their courts, school systems, youth programs and prevention                                                                     
programs to better intervene in that community.  But, it costs                                                                  
money.  He noted about four years ago, Representative Porter                                                                    
chaired a House task force on alcohol and one of his                                                                            
recommendations was to increase the license reinstatement fee from                                                              
$100 to $250.  That has passed, but for only a second offense.                                                                  
Last year, the department proposed an increase for a first offense.                                                             
The revenues would have paid for a lot of the services proposed.                                                                
He further noted that HB 11 has passed, a graduated driver's                                                                    
license.  That bill took the principles of SB 77, but it didn't                                                                 
include a fiscal note.  As a result, the division now has the                                                                   
responsibility for alcohol information schools without the                                                                      
commensurate staff.  The license reinstatement fee didn't pass, so                                                              
there is no revenue to fund local communities in order to make this                                                             
effort on their own.  The division would propose looking at how to                                                              
generate services in communities to appropriately intervene the                                                                 
first time; to make the penalties more meaningful to youth, based                                                               
on what a community believes is best for their children, along with                                                             
any school penalty; and, to allow the division to get seed money                                                                
out to them.  The legal mechanisms are in place, in law, but there                                                              
isn't the funding even for the current "Use It, Lose It" law to                                                                 
work better and to reduce the number of children committing second                                                              
and third offenses.  Last year, some kids testified that they knew                                                              
of the law, but they believed that they would never get caught,                                                                 
that they didn't think about it when they used it, and that it                                                                  
didn't cross their minds on a Saturday night.  They know about it,                                                              
but they never think about losing their driver's license.  It's                                                                 
more of an adult model; the kids don't see the penalty as being as                                                              
bad as adults do.                                                                                                               
                                                                                                                                
MR. JONES further said, in relation to the issue of designated                                                                  
drivers, that while a person can drive at 16 years of age he or she                                                             
is not a very skilled driver.  The last thing that he wanted was                                                                
his sober 16 year old with a car full of drunks.  That is not a                                                                 
very good position for an unskilled driver.                                                                                     
                                                                                                                                
TAPE 99-27, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
MR. JONES continued.  He would appreciate a state trooper stopping                                                              
and checking out situations like that than for his child to take                                                                
that kind of risk.                                                                                                              
                                                                                                                                
Number 0060                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT said, as a parent, the last thing he every wanted was                                                             
his daughter or son to crawl into a car with five drunks,                                                                       
especially if they were also drunk.  As a parent, he would rather                                                               
have his sober daughter in a car with five drunk girlfriends than                                                               
have her read in a newspaper the next day that here friends were                                                                
killed because she didn't take the lead as a sober person and drive                                                             
them home.                                                                                                                      
                                                                                                                                
Number 0126                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI said she has always felt that the                                                                      
designated driver message is wonderful for adults, but it is                                                                    
confusing for minors.  She asked Mr. Jones whether he has given any                                                             
thought on taking the provisions of the "Use It, Lose It" law and                                                               
instead of revoking a driver's license requiring community work                                                                 
service.                                                                                                                        
                                                                                                                                
Number 0231                                                                                                                     
                                                                                                                                
MR. JONES replied the communities approach that in different ways.                                                              
In small communities, such as Kotzebue, the superior court judge                                                                
handles the cases.  In real small communities, the magistrate                                                                   
handles them.  The judge makes the intervention and typically holds                                                             
in-advance the charge until the child has completed certain aspects                                                             
of what is available in the community.  In large communities, such                                                              
as Anchorage, where there are lots of judges and magistrates that                                                               
is not always possible.  Often times, the district court judges                                                                 
will give the kid a card of a local program, such as Volunteers of                                                              
America or Alaskans For a Drug Free Youth that might have something                                                             
to offer.  In Juneau, there is a network and the district court                                                                 
judge and police let the programs know which kids have been picked                                                              
up and which have been in court.  The programs actively outreach to                                                             
the parents.  He reiterated there are various community approaches.                                                             
They aren't consistent and there aren't any standards established.                                                              
Some operate on a shoestring budget.  The division would like to                                                                
help coalesce those ideas and put together  information, so that                                                                
all of the communities would be aware of how to work with the                                                                   
district court judges, local police departments, and local DMV                                                                  
[Division of Motor Vehicles] offices to identify these kids and                                                                 
intervene early.  Part of the age-appropriate education would                                                                   
include some type of community work service.  And, for those kids                                                               
that don't get the message the first couple of times, there would                                                               
be more of an assessment including counseling issues and long-term                                                              
treatment.  There are some good models out there.  The division                                                                 
thinks that it could offer some funding and structure to                                                                        
communities in order to help them get to more of the kids and to be                                                             
more effective.                                                                                                                 
                                                                                                                                
Number 0458                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Jones to clarify the distinction                                                              
between the larger and smaller communities.                                                                                     
                                                                                                                                
MR. JONES replied in Kotzebue there is a single judge that hears                                                                
all the cases.  That judge has taken it upon himself to make sure                                                               
that some community intervention is done with all the kids.  In                                                                 
Anchorage, on the other hand where there are eight to ten district                                                              
judges and two to three magistrates there isn't consistency.  There                                                             
are a lot of other agencies involved as well:  state troopers,                                                                  
police departments, and others for example.  It takes more of a                                                                 
systematic approach of getting all those involved to buy into a                                                                 
system.  It could work in Anchorage; it would just take more of an                                                              
effort to make sure all involved are on board.                                                                                  
                                                                                                                                
Number 0542                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked Mr. Jones what would it cost to fund                                                              
an alcohol school for juveniles.                                                                                                
                                                                                                                                
MR. JONES replied, according to the fiscal note last year, it would                                                             
cost $100,000 for the division to manage the renewal for quality                                                                
assurance and policy, and $500,000 for grants to local communities                                                              
on a competitive process.  Changing the reinstatement fees would                                                                
have raised over $1 million, and the division was proposing to use                                                              
about one-half of that money.                                                                                                   
                                                                                                                                
Number 0615                                                                                                                     
                                                                                                                                
[THE RECORD REFLECTS THAT RONALD JORDAN'S TESTIMONY WAS                                                                         
INTERMITTENTLY AUDIBLE]                                                                                                         
                                                                                                                                
RONALD JORDAN testified via teleconference from Anchorage.  He                                                                  
believes that there should be an breath alcohol test required when                                                              
there is a presumption of consumption of alcohol.  There seems to                                                               
be an issue of accusing those who haven't consumed any alcohol.                                                                 
For example, some officers can't tell the difference between                                                                    
O'Douls and Budweiser without a blood alcohol test.  In addition,                                                               
he has heard that people are losing their driver's licenses for a                                                               
.003 alcohol level, which is basically one to two tablespoons of                                                                
Robitussen.  Those issues could be addressed by using a breath                                                                  
alcohol test.  He noted for a prescribed dose of Robitussen, a                                                                  
person shows up as a .003 to .005 alcohol level, but if a person                                                                
drank the bottle it shows up at .123, which is a level of                                                                       
intoxication in Alaska.  These issues need to be addressed and                                                                  
corrected.                                                                                                                      
                                                                                                                                
Number 0941                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Jordan whether there is alcohol                                                               
in some root beer.                                                                                                              
                                                                                                                                
MR. JORDAN replied Henry Weinhard's root beer contains a one-half                                                               
of one percent alcohol level.  In conducting a study of airline                                                                 
passengers drinking O'Douls, Budweiser and root beer, three root                                                                
beers showed in one hour a .005 alcohol level; and three                                                                        
Budweiser's showed in one hour a .076 alcohol level.  According to                                                              
the state, any alcohol is a violation.                                                                                          
                                                                                                                                
Number 1022                                                                                                                     
                                                                                                                                
KEVIN HYDE, President, Good Legislation Assures Democracy                                                                       
(G.L.A.D.), testified via teleconference from Kenai.  He noted                                                                  
G.L.A.D. was formed out of concern on AS 28.15.183, which HB 151                                                                
addresses.  He is a father and is very concerned about drug and                                                                 
alcohol use.  However, there is a recent appeals court ruling that                                                              
determined AS 28.15.183 was unconstitutional because driver's                                                                   
licenses were being removed for non-driving offenses.  In addition,                                                             
there is a justice system in place that is intended to help with                                                                
the administration and enforcement of laws, but the administrative                                                              
process through the DMV is adding a double jeopardy type of                                                                     
situation.  The young are being subject to criminal procedures and                                                              
often being sent off as not guilty or having their cases dismissed                                                              
then having to go to a DMV hearing to be found guilty with a                                                                    
revocation imposed.  It is a legal situation, but it is wrong.  The                                                             
40 members participating in G.L.A.D. have heard that kids are                                                                   
losing their driver's license, but not taking it very seriously.                                                                
They figure that they won't get caught again or go ahead and drive                                                              
without a license.  He originally had assumed that taking a                                                                     
driver's license made sense, but it is not working.  The testimony                                                              
yesterday [April 8, 1999] indicated that the kids are not taking it                                                             
seriously.  They are being forced to obey a law that maybe they                                                                 
don't understand.  They don't understand when a judge finds them                                                                
innocent, but another person says that they can't have their                                                                    
license.  It puts a level of doubt on the justice system.  He                                                                   
reiterated he doesn't want kids drinking alcohol or using drugs.                                                                
He would like to see it recriminalized so that a judge is put in                                                                
charge of the situation.                                                                                                        
                                                                                                                                
Number 1309                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked Mr. Hyde what he thinks would be an                                                              
effective deterrent.  Has G.L.A.D. had a chance to talk to kids                                                                 
affected by this, and does it have any suggestions on what to do to                                                             
encourage kids who are underage not to use alcohol?                                                                             
                                                                                                                                
Number 1368                                                                                                                     
                                                                                                                                
MR. HYDE replied yes G.L.A.D. has had that opportunity.  Some                                                                   
suggestions were community service, treatment and evaluation                                                                    
specific to youths, addressing needs, speaking to them on their                                                                 
level, and taking away their time.  For example, his kid who is                                                                 
part of a cool gang would not think it is cool to wear a bright                                                                 
orange suit and pick up cans.  The process is such that most kids                                                               
talk to a judge via the telephone which doesn't have the same                                                                   
effect as going to court.  Having to face that judge, would really                                                              
get their attention.  He has heard kids describe the process as a                                                               
joke.                                                                                                                           
                                                                                                                                
Number 1503                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI said it seems that the penalty is                                                                      
invisible.  Who sees a driver's license anyway and a person can                                                                 
still drive as long as that person doesn't get caught.  She likes                                                               
the suggestion of community service because of the importance of                                                                
image and free time being taken away compared to another revocation                                                             
that hasn't had an impact anyway.                                                                                               
                                                                                                                                
Number 1565                                                                                                                     
                                                                                                                                
MR. HYDE mentioned in quite a few bush community there aren't any                                                               
cars or a license is not required to drive.                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Juanita Hensley [Division of Motor Vehicles,                                                                
Department of Administration] whether a driver's license is needed                                                              
to drive a snowmobile or a 3-wheeler.                                                                                           
                                                                                                                                
Number 1651                                                                                                                     
                                                                                                                                
JUANITA HENSLEY, Administrator, Director's Office, Division of                                                                  
Motor Vehicles, Department of Administration, replied yes.  A                                                                   
vehicle does not need to be registered, however, if the village or                                                              
community has fewer than 499 average cars per day on any particular                                                             
roadway.                                                                                                                        
                                                                                                                                
CHAIRMAN KOTT said, based on Ms. Hensley's answer, then there                                                                   
should be some impact in rural Alaska.                                                                                          
                                                                                                                                
Number 1692                                                                                                                     
                                                                                                                                
VIRGINIA ESPENSHADE, Executive Director, Kenai Peninsula Youth                                                                  
Court, testified via teleconference from Kenai.  She has practiced                                                              
law in Homer for the past 14 years.  She is in support of parts of                                                              
the bill and in opposition to parts.  She strongly supports any                                                                 
legislative change that would provide young adults with a way to                                                                
earn their driver's licenses back, especially for the kids with                                                                 
multiple convictions.  We are setting up these young adults by                                                                  
taking away any future for them.  They are facing years without a                                                               
driver's license.  If they can't get jobs, they can't provide for                                                               
their families.  She is also in favor of using the youth courts as                                                              
judicial entities to hear these violations.  In Homer, the youth                                                                
court hears minor consuming and possessing offenses and has already                                                             
adjudicated ten of them.  It's an ongoing process and is being                                                                  
developed as it goes.  It is based on a community consensus of all                                                              
the parties involved.  That understands that wouldn't work in every                                                             
community.  She is concerned that the bill sets up the youth court                                                              
as an alternative administrative agency.                                                                                        
                                                                                                                                
CHAIRMAN KOTT interjected and stated the current version of the                                                                 
bill does not reference youth court.                                                                                            
                                                                                                                                
MS. ESPENSHADE further stated that peer adjudication can be a big                                                               
part of the community response.  The kids in Homer appear before                                                                
peers wearing black robes.  The consequences include an essay and                                                               
community work service.  She asked the committee members to                                                                     
consider that when trying to fix this problem.  It is up to the                                                                 
legislature to fix it because it will take at least another year                                                                
for the courts to sort it out.  The appeal that Mr. Jordan                                                                      
referenced earlier was a two-two split, therefore, it doesn't                                                                   
control any other court.  The legal status of the statute is cloudy                                                             
at best.  She applauded the committee members for looking at the                                                                
whole issue and asked them to look at individual communities having                                                             
input in order to solve their particular problems.                                                                              
                                                                                                                                
Number 1873                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT said he agrees that a two-two split is not binding,                                                               
but it is persuasive.  He asked Ms. Espenshade to comment on a                                                                  
letter dated March 10, 1999 from Linda Johnson [Legal Advisor,                                                                  
Anchorage Youth Court] which indicates the youth courts do not have                                                             
the authority to act on any alcohol-related issue.                                                                              
                                                                                                                                
Number 1905                                                                                                                     
                                                                                                                                
MR. ESPENSHADE replied, according to her understanding, Title 47                                                                
authorizes the Department of Health and Social Services to deal                                                                 
with juvenile crime which excludes alcohol cases.  But, according                                                               
to the (indisc.) version of Title 47, DFYS [Division of Family and                                                              
Youth Services] cannot refer alcohol cases to youth courts, but it                                                              
can refer misdemeanor cases to them, which is happening across the                                                              
state.  The youth court in Homer is private and for non-profit.  It                                                             
has entered into agreements with the police departments and                                                                     
district attorneys, and is based on a public consensus.  She agrees                                                             
that an amendment to Title 47 would make it much clearer, that it                                                               
is something the youth courts could do.                                                                                         
                                                                                                                                
Number 1986                                                                                                                     
                                                                                                                                
LINDA WRIGHT testified via teleconference from Kenai.  She is                                                                   
concerned about Section 6 of the bill.  She wondered why there is                                                               
an age barrier at 20 because 17, 18 or 19 year olds may be in                                                                   
school or have dependent children.  In addition, the "more than one                                                             
year left" provision means to her that a person would have to have                                                              
at least two citations in order to be considered for reinstatement.                                                             
While she is glad to see the addition of school and dependent care                                                              
added, under these terms, a person with one citation who is 18                                                                  
years old would not qualify.                                                                                                    
                                                                                                                                
Number 2075                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT said the application for reinstatement is filed at                                                                
least two years after the person's license, permit, or privilege                                                                
has been revoked.  It was changed from one to two years.                                                                        
                                                                                                                                
Number 2085                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT indicated that the age limit has been taken                                                                
out as well.                                                                                                                    
                                                                                                                                
CHAIRMAN KOTT stated those changes were a policy call made by this                                                              
committee.                                                                                                                      
                                                                                                                                
MS. WRIGHT asked whether a person has to have more than two years                                                               
(indisc.--coughing) in order to qualify for a privilege of a                                                                    
driver's license.                                                                                                               
                                                                                                                                
CHAIRMAN KOTT replied correct.  He asked Ms. Hensley to answer the                                                              
question further.                                                                                                               
                                                                                                                                
Number 2115                                                                                                                     
                                                                                                                                
MS. HENSLEY said, according to this version of the bill, Section 4                                                              
says an individual may apply for a limited license privilege.  In                                                               
the case of her son who had his driver's license revoked for a                                                                  
first offense, he would be able to apply for a limited license to                                                               
go to-and-from school, if he can show proof that he is in fact                                                                  
attending school such as a class schedule.  He wouldn't be able to                                                              
go anywhere else, however.                                                                                                      
                                                                                                                                
Number 2150                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT said the reinstatement for a temporary license was                                                                
increased from one to two years, so if a person had multiple                                                                    
offenses he would have to do at least two years.  Therefore, a                                                                  
21-year-old could apply and not find himself with that much of a                                                                
penalty at all.                                                                                                                 
                                                                                                                                
MS. WRIGHT asked whether this would allow a person to apply for a                                                               
provisional license to go to work.                                                                                              
                                                                                                                                
Number 2188                                                                                                                     
                                                                                                                                
MS. HENSLEY replied, providing the person meets the requirements                                                                
under the law and is eligible to drive, a person could get a                                                                    
provisional license to drive.  The DMV has taken a fairly liberal                                                               
approach when issuing limited licenses to youth drivers.                                                                        
                                                                                                                                
Number 2240                                                                                                                     
                                                                                                                                
JACK HARSHFIELD testified via teleconference from Homer.  He is 21                                                              
with a family and a fiance who is 19.  They have both been affected                                                             
by this law.  He had six minor consumptions and pled guilty to all                                                              
of them.  He will not get his driver's license back until the year                                                              
2004.  His fiance had three convictions of which two were thrown                                                                
out and she will not get her license back until next year.  When a                                                              
person is 16, he thinks he knows everything and the world, but                                                                  
people change.  He now realizes those actions were really dumb, but                                                             
he is still getting fined for something that he did when he was a                                                               
kid.  It is really hard because both he and his fiance don't have                                                               
a driver's license and they have a kid on the way.  It is hard to                                                               
push a stroller around in the winter.  In addition, many jobs                                                                   
require a driver's license, and if a person can't get a job he                                                                  
can't get money.  As a result, some resort to petty theft.  When he                                                             
was 16, he didn't care if he got caught again because he wasn't                                                                 
going to get his license back for a long time anyway.  Now, that he                                                             
has grown up, has a family and responsibilities, he wishes that he                                                              
wouldn't have drank when he was underage.  He wishes that he could                                                              
change it, but he can't.                                                                                                        
                                                                                                                                
Number 2367                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Mr. Harshfield to tell him the circumstances                                                                
behind his fiance's two convictions that were dismissed.                                                                        
                                                                                                                                
MR. HARSHFIELD replied two were dismissed in court by a judge, but                                                              
the DMV proceeded with them because she didn't read the fine print                                                              
requiring her to go back within seven days to file for an appeal.                                                               
She now has to file for a late appeal, but there is still no                                                                    
guarantee that she will get her driver's license back.                                                                          
                                                                                                                                
Number 2415                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Mr. Harshfield whether he is aware of any of                                                                
his friends that were also cited under the "Use It, Lose It" law                                                                
who had their driver's licenses revoked when they were not using                                                                
alcohol.                                                                                                                        
                                                                                                                                
MR. HARSHFIELD replied there was a case down at the beach where two                                                             
people were cited who were not drinking because they were the                                                                   
designated drivers.  Their cases were dismissed in court.  They                                                                 
still had their driver's licenses revoked for 90 days, however.                                                                 
                                                                                                                                
Number 2452                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked Mr. Harshfield whether any of his                                                                    
violations were related to using alcohol while driving a car.                                                                   
                                                                                                                                
TAPE 99-27, SIDE B                                                                                                              
Number 001                                                                                                                      
                                                                                                                                
MR. HARSHFIELD replied yes.  He got a DWI (driving while                                                                        
intoxicated) while driving a 3-wheeler.                                                                                         
                                                                                                                                
Number 0033                                                                                                                     
                                                                                                                                
MS. CARPENETI stated that there is another case before the supreme                                                              
court on the "Use It, Lose It" law.  The record will be certified                                                               
this month and cited before a year.  She noted that the court of                                                                
appeals has upheld the "Use It, Lose It" law as constitutional.                                                                 
                                                                                                                                
CHAIRMAN KOTT asked Ms. Carpeneti to provide him a copy of the                                                                  
court of appeals case.                                                                                                          
                                                                                                                                
Number 0064                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT announced that the bill will be held over for further                                                             
consideration.                                                                                                                  
ADJOURNMENT                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee                                                                  
meeting at 3:40 p.m.                                                                                                            

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