Legislature(1999 - 2000)
04/09/1999 01:05 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.