Legislature(1999 - 2000)
04/28/1999 01:20 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 28, 1999 1:20 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft MEMBERS ABSENT Representative Beth Kerttula COMMITTEE CALENDAR HOUSE JOINT RESOLUTION NO. 18 Proposing an amendment to the Constitution of the State of Alaska relating to an office of administrative hearings. - HEARD AND HELD SENATE JOINT RESOLUTION NO. 3 Proposing an amendment to the Constitution of the State of Alaska relating to the repeal of regulations by the legislature. - HEARD AND HELD HOUSE BILL NO. 177 "An Act relating to foster parents; relating to the right of foster parents to have notice of, and testify at, delinquency hearings and to the disclosure of minors' records to foster parents; and amending Rules 3, 7, 10, 12, 21, 23, and 25, Alaska Delinquency Rules." - MOVED CSHB 177(HES) OUT OF COMMITTEE * SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 33 "An Act relating to arrests." - MOVED CSSSHB 33(JUD) OUT OF COMMITTEE (* First public hearing) PREVIOUS ACTION BILL: HJR 18 SHORT TITLE: CONST. AM: ADMINISTRATIVE HEARINGS SPONSOR(S): REPRESENTATIVES(S) OGAN, Foster, Dyson, Rokeberg Jrn-Date Jrn-Page Action 2/24/99 300 (H) READ THE FIRST TIME - REFERRAL(S) 2/24/99 300 (H) STA, JUD, FIN 2/26/99 328 (H) COSPONSOR(S): FOSTER 3/04/99 (H) STA AT 8:00 AM CAPITOL 102 3/04/99 (H) HEARD AND HELD 3/04/99 (H) MINUTE(STA) 3/05/99 377 (H) COSPONSOR(S): DYSON, ROKEBERG 3/09/99 (H) STA AT 8:00 AM CAPITOL 102 3/09/99 (H) SCHEDULED BUT NOT HEARD 3/16/99 (H) STA AT 8:00 AM CAPITOL 102 3/16/99 (H) MOVED CSHJR 18(STA) OUT OF COMMITTEE 3/16/99 (H) MINUTE(STA) 3/17/99 489 (H) STA RPT CS(STA) NT 4DP 2DNP 3/17/99 489 (H) DP: JAMES, COGHILL, WHITAKER, OGAN; 3/17/99 489 (H) DNP: SMALLEY, KERTTULA 3/17/99 490 (H) FISCAL NOTE (GOV) 3/17/99 490 (H) REFERRED TO JUD 3/24/99 (H) JUD AT 1:00 PM CAPITOL 120 3/24/99 (H) HEARD AND HELD 3/24/99 (H) MINUTE(JUD) 3/29/99 (H) JUD AT 1:00 PM CAPITOL 120 3/29/99 (H) HEARD AND HELD SUBCMTE APPOINTED 3/29/99 (H) MINUTE(JUD) 4/28/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: SJR 3 SHORT TITLE: REPEAL OF REGULATIONS BY LEGISLATURE SPONSOR(S): SENATOR(S) TAYLOR, Kelly Tim, Phillips; REPRESENTATIVE(S) Harris Jrn-Date Jrn-Page Action 1/21/99 43 (S) READ THE FIRST TIME - REFERRAL(S) 1/21/99 44 (S) STA, FIN 1/28/99 (S) STA AT 3:30 PM BELTZ ROOM 211 1/28/99 (S) MOVED OUT OF COMMITTEE 1/28/99 (S) MINUTE(STA) 2/01/99 125 (S) STA RPT 3DP 1DNP 2/01/99 125 (S) DP: WARD, PHILLIPS, MACKIE; DNP: ELTON 2/01/99 125 (S) ZERO FISCAL NOTE (S. STA) 2/05/99 164 (S) ZERO FISCAL NOTE (GOV) 2/11/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 2/11/99 (S) HEARD AND HELD 2/11/99 (S) MINUTE(FIN) 2/11/99 227 (S) FISCAL NOTE (GOV) 2/16/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 2/16/99 (S) MOVED OUT OF COMMITTEE 2/16/99 (S) MINUTE(FIN) 2/16/99 256 (S) FIN RPT 2DP 4NR 1DNP 2/16/99 256 (S) DP: TORGERSON, PARNELL; NR: GREEN, 2/16/99 256 (S) PETE KELLY, WILKEN, LEMAN; DNP: ADAMS 2/16/99 256 (S) PREVIOUS FN (GOV) 3/15/99 (S) RLS AT 1:40 PM FAHRENKAMP 203 3/15/99 (S) MINUTE(RLS) 3/16/99 564 (S) RULES TO CALENDAR AND 1 OR 3/16/99 3/16/99 570 (S) READ THE SECOND TIME 3/16/99 571 (S) ADVANCE TO THIRD READING FLD Y14 N4 E2 3/16/99 571 (S) THIRD READING 3/17 CALENDAR 3/17/99 585 (S) READ THE THIRD TIME SJR 3 3/17/99 585 (S) COSPONSOR(S): TIM KELLY, PHILLIPS 3/17/99 586 (S) PASSED Y14 N4 E2 3/17/99 586 (S) ELLIS NOTICE OF RECONSIDERATION 3/17/99 587 (S) RECON TAKEN UP SAME DAY UNAN CONSENT 3/17/99 587 (S) HELD ON RECONSIDERATION TO 3/23 CALENDAR 3/23/99 650 (S) BEFORE THE SENATE ON RECONSIDERATION 3/23/99 651 (S) PASSED ON RECONSIDERATION Y15 N5 3/23/99 652 (S) TRANSMITTED TO (H) 3/24/99 544 (H) READ THE FIRST TIME - REFERRAL(S) 3/24/99 544 (H) STA, JUD, FINANCE 3/24/99 562 (H) CROSS SPONSOR(S): HARRIS 4/08/99 (H) STA AT 8:00 AM CAPITOL 102 4/08/99 (H) MOVED OUT OF COMMITTEE 4/08/99 (H) MINUTE(STA) 4/08/99 687 (H) STA RPT 4DP 2DNP 1NR 4/08/99 687 (H) DP: JAMES, COGHILL, WHITAKER, OGAN; 4/08/99 687 (H) DNP: SMALLEY, KERTTULA; NR: HUDSON 4/08/99 687 (H) SENATE FISCAL NOTE (GOV) 2/11/99 4/08/99 687 (H) REFERRED TO JUD 4/26/99 (H) JUD AT 1:00 PM CAPITOL 120 4/26/99 (H) HEARD AND HELD 4/28/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 177 SHORT TITLE: FOSTER CARE & DELINQUENT MINORS SPONSOR(S): REPRESENTATIVES(S) DYSON, Croft, Smalley, Ogan, Cissna Jrn-Date Jrn-Page Action 4/07/99 670 (H) READ THE FIRST TIME - REFERRAL(S) 4/07/99 670 (H) HES, JUD 4/15/99 (H) HES AT 3:00 PM CAPITOL 106 4/15/99 (H) MOVED CSHB 177(HES) OUT OF COMMITTEE 4/15/99 (H) MINUTE(HES) 4/19/99 864 (H) HES RPT CS(HES) 3DP 1NR 4/19/99 865 (H) DP: DYSON, COGHILL, BRICE; NR: KEMPLEN 4/19/99 865 (H) 2 ZERO FISCAL NOTES (ADMINISTRATION, DHSS) 4/28/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: SSHB 33 SHORT TITLE: ARRESTS BY PRIVATE PERSONS SPONSOR(S): REPRESENTATIVES(S) DYSON, Green, James, Kott Jrn-Date Jrn-Page Action 1/19/99 26 (H) PREFILE RELEASED 1/8/99 1/19/99 26 (H) READ THE FIRST TIME - REFERRAL(S) 1/19/99 26 (H) JUDICIARY 3/05/99 367 (H) SPONSOR SUBSTITUTE INTRODUCED 3/05/99 367 (H) READ THE FIRST TIME - REFERRAL(S) 3/05/99 367 (H) JUDICIARY 4/28/99 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER JOHN KIMMEL, Legislative Administrative Assistant to Senator Robin Taylor Alaska State Legislature Capitol Building, Room 30 Juneau, Alaska 99801 Telephone: (907) 465-3922 POSITION STATEMENT: Presented sponsor statement on SJR 3. REPRESENTATIVE FRED DYSON Alaska State Legislature Capitol Building, Room 104 Juneau, Alaska 99801 Telephone: (907) 465-2199 POSITION STATEMENT: Sponsor of HB 177 and SSHB 33. LISA TORKELSON, Legislative Assistant to Representative Fred Dyson Alaska State Legislature Capitol Building, Room 104 Juneau, Alaska 99801 Telephone: (907) 465-2199 POSITION STATEMENT: Explained HB 177. ROBERT BUTTCANE, Juvenile Probation Officer Youth Corrections Division of Family and Youth Services Department of Health and Social Services P.O. Box 110630 Juneau, Alaska 99811-0630 Telephone: (907) 465-2212 POSITION STATEMENT: Testified in favor of HB 177. BLAIR McCUNE, Deputy Director Central Office Public Defender Agency Department of Administration 900 West 5th Avenue, Suite 200 Anchorage, Alaska 99501-2090 Telephone: (907) 264-4400 POSITION STATEMENT: Testified in favor of HB 177 and SSHB 33. DOUG WOOLIVER, Administrative Attorney Administrative Staff Office of the Administrative Director Alaska Court System 820 West 4th Avenue Anchorage, Alaska 99501-2005 Telephone: (907) 264-8265 POSITION STATEMENT: Testified on HB 177. DAVID HUDSON, First Sergeant Division of Alaska State Troopers Department of Public Safety 5700 East Tudor Road Anchorage, Alaska 99507-1225 Telephone: (Not provided) POSITION STATEMENT: Testified on SSHB 33. CORY WINCHELL, Administrative Assistant to Representative Pete Kott Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-3777 POSITION STATEMENT: Testified on SSHB 33. ACTION NARRATIVE TAPE 99-43, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:20 p.m. Members present at the call to order were Representatives Kott, Rokeberg, James, Murkowski and Croft. Representative Green arrived at 2:45 p.m. HJR 18 - CONST. AM: ADMINISTRATIVE HEARINGS CHAIRMAN KOTT announced the first order of business is House Joint Resolution 18, Proposing amendments to the Constitution of the State of Alaska relating to an office of administrative hearings. Number 0137 REPRESENTATIVE MURKOWSKI said the subcommittee met and made some changes to the resolution. She indicated that Subsection C was added on page 1, beginning on line 14, and reads as follows: The legislature may exempt any agency of the State from (a) of this section by law. REPRESENTATIVE MURKOWSKI further stated that this was added to address the concerns that were in the initial resolution where it appeared that the legislature, in fact, did not have the authority to decide who may or may not be in or out with regards to the full centralized office of administrative hearings. She said there had been some discussion over language that would have specifically exempted boards and commissions. She feels, as do those on the subcommittee, that this legislation is far from perfect, and that it needs review during the interim. REPRESENTATIVE ROKEBERG stated that he is satisfied with the stipulation, regarding an agency and the ability to include or exclude, to include the boards and the commissions. He believes this will help the success of this resolution. REPRESENTATIVE CROFT asked, "What change does this make in our power to do anything in this area?" REPRESENTATIVE MURKOWSKI stated that she understood that the testimony indicates that the public needs to basically provide the direction to the legislature that "you shall create an office of administrative hearing that is your centralized office." She said if this is not put before the people then this legislature would not do it. REPRESENTATIVE CROFT commented that it does not change the legal authority in this area. REPRESENTATIVE MURKOWSKI replied that she does not believe it changes the legal authority in this area. Number 0430 REPRESENTATIVE JAMES stated that she was happy to see the inclusion of Subsection C because she feels, without it, the issue is dead. She said, "I think this is probably one of the best things that we could do. It couldn't have been done by statute, but we couldn't pass it by statute. We might have a little problem getting a constitutional amendment passed. I'd be happy to talk to anybody about this issue. From a practical standpoint, I know that what happens with us when we have a system, and you get used to the system, we don't want change, and we think that what we're doing works perfectly fine. We can find all kinds of excuses, from the fact that no one else would know how to do this. No one else would have the expertise. All of those kinds of excuses are not valid excuses. It's to say that, 'I'm the only one that smart, and no one else is smart, so no one else can do this besides me.' So, I think ... in the regulation process, where the regulations are written by the agency, they are enforced by the agency, and, if you want to appeal any of those actions, you appeal to the same agency. That is not democracy. So, I think this is a really good plan to have innocent, third-party decision-makers in the appeal process." Number 0584 REPRESENTATIVE ROKEBERG stated that he would also prefer to have this done by statute. He said, "But that would require that the administration would cooperate (indisc.)." REPRESENTATIVE CROFT said no and stated, "We have a veto-proof majority. We can do it anytime we want." REPRESENTATIVE ROKEBERG indicated that it is his preference that the administration and legislature work jointly on this. He thinks it is an excellent model for reducing costs and providing better service to the people of Alaska. He made a motion to adopt the proposed committee substitute [Version I, Cook, 4/27/99]. There being no objection, it was so ordered. REPRESENTATIVE ROKEBERG made a motion to move Version I, with individual recommendations and zero fiscal notes, out of the committee. CHAIRMAN KOTT objected, noting that they did not have the votes. He asked Representative Rokeberg to withdraw his motion. Number 0666 REPRESENTATIVE ROKEBERG withdrew his motion. CHAIRMAN KOTT asked Representative Murkowski to comment on her concerns regarding the resolution. Number 0685 REPRESENTATIVE MURKOWSKI stated that it is her understanding that the attempt the sponsor made, in terms of getting the resolution through statutorily, was rather tortuous, and ended up with a product that was not feasible. She noted that there was some concern expressed that it cannot be done statutorily because there was some opposition from those within the department and the administration. Her indication is that the administration recognize the benefits and merits of pursuing this and are willing to work with the sponsor and subcommittee to make it happen. She said, "Because it is such a major step, though, in terms of how we handle our administrative hearings, it wasn't something that my subcommittee is able to do at this point in time. I don't think, though, that that same resistance, if you will, or perceived resistance is there now. I think that there is a recognition that perhaps the system does not work as it should. ... I think that it deserves more scrutiny and more work." REPRESENTATIVE JAMES stated that she appreciates what Representative Murkowski said. She believes that if the administration cooperated, there is no reason that this could not be done by statute. She indicated that she is encouraged by the tone reported from the administration by Representative Murkowski. She thinks that maybe having a constitutional amendment has made them look a little harder, or maybe they have been persuaded in some other way. Number 0876 CHAIRMAN KOTT noted that from his discussion with the administration it was suggested that they were more than willing to sit down and craft some legislation that would attempt to satisfy the intent of the resolution. He is concerned about "entrenching our Constitution." He stated that a statute would have to be passed to make this work, and he does not think putting the cart before the horse is the way to go. It is his intent to hold the resolution in the committee and work on the resolution during the interim. He commented that it is not the intent to let the resolution sit in committee without subsequent legislation going forward. REPRESENTATIVE JAMES stated that she would be willing to offer her expertise on this issue. CHAIRMAN KOTT indicated that he does not want anyone in the administration to think that the resolution is "D.O.A" [dead on arrival] to this committee. He stated that he would like to have one shot to work on the resolution in order to give it a legitimate chance to pass. REPRESENTATIVE CROFT said, "I was here when the statutory version by the same sponsor as this resolution came before us. And, I mean, it was this committee, in its prior form, saw enough problems with it that we didn't think it should go forward. It has serious flaws that the sponsor never rectified, never corrected. I've before had the experience of driving down the road and rolling down the window and telling somebody they've got a flat tire and having them be pissed off at me. I mean, the administration just pointed out the problems that were in the bill, and that's their job. It is not the administration that killed this bill, the Judiciary Committee killed this bill because it had-last year's bill-[be]cause it had serious flaws that were never corrected, and this year I think the Judiciary Committee has appropriate concerns about this all-or-nothing approach. ... There's never been a governor's veto of a statute, it's never gotten that far [be]cause it's never been put in any kind of form that approached reasonable. It is an extremely time-consuming process to do this right, to try and do it in a blanket approach. You end up with huge, unintended consequences; some of which are obvious, some which take a long time to figure out. ... We may end up, after doing this all session, or all interim, with the conclusion that there isn't any significant savings to be had [be]cause the numbers of places that we do this are so small that you're accumulating small. ... Putting in our constitution, a directive to do what we have the power to do now, but allowing us to not do it if we decide not to, is simply, in my mind, ridiculous." Number 1271 CHAIRMAN KOTT stated that maybe no savings will be found. REPRESENTATIVE MURKOWSKI said she was glad that the committee is willing to undertake this throughout the interim and look at just those issues. She stated that the items Representative Croft mentioned are exactly accurate. It is her opinion that there are very serious and substantial flaws with the resolution. She hopes the committee considers the concept during the interim, not whether or not there is a joint resolution coming forward. She appreciates that Representative Ogan has kept the issue in the forefront. CHAIRMAN KOTT added that he also applauds Representative Ogan's attempt. He believes it is a great concept that needs to be furthered. REPRESENTATIVE JAMES agrees that this is the way to go. She feels, without cooperation and help from the administration, that changes cannot be made. She would also like to fit dispute resolution into the process in order to have it as the first opportunity, and, if that does not resolve anything, then have it go on to a hearing officer. She stated that her goal is to create a better relationship between the agencies and the public, and what the public does. CHAIRMAN KOTT stated that it would be taken into consideration. Number 1481 REPRESENTATIVE ROKEBERG stated that he does not entirely agree with the diagnoses of the "death" of this resolution last year. He believes from discussions with the sponsor that it was as much the administration's reluctance to further work on the issue as much as anything else. REPRESENTATIVE CROFT said, "The administration has no seat on this committee. I mean, the committee decided from the (indisc.), and I asked the sponsor then and I'll ask him again this, 'What questions hasn't the administration, ... or whoever, answered on behalf?' Last year when I asked him that, it was, 'None, but we just don't think they like it.' Of course they didn't like it. We didn't like it. It didn't work, but that's not their fault. I guess he wanted them to rewrite the bill, ... They didn't do that, but they did say, I mean, clearly on the record, where the problems areas were, and what to do with it. ... I will ask again, 'What questions haven't been answered?' I think they have been, and I think it's just, it's a very difficult, time-consuming area to do right, and it has not been done right to date." Number 1562 CHAIRMAN KOTT said if the resolution had ended up in the House Judiciary Standing Committee they could have moved it out if the votes were there. He is not sure about the details, but it is obvious to him that there must have been a problem or some concerns by some of the committee members. REPRESENTATIVE JAMES stated that the best way to provide a working piece of legislation is for "us to sit on the committee, and have the administration out there, and we have this interchange." She indicated that this did not happen last year, and that this year the administration was not interested in having anything move forward. She feels that if there is a change of heart now, she is excited. CHAIRMAN KOTT indicated that the bill would be held over for further consideration. SJR 3 - REPEAL OF REGULATIONS BY LEGISLATURE CHAIRMAN KOTT stated the next order of business is Senate Joint Resolution No. 3, Proposing an amendment to the Constitution of the State of Alaska relating to the repeal of regulations by the legislature. Number 1680 JOHN KIMMEL, Legislative Administrative Assistant to Senator Robin Taylor, came forward to speak on behalf of Senator Taylor, sponsor of SJR 3. He stated that SJR 3 is a proposed amendment to the Constitution of the State of Alaska which would grant the legislature the authority to repeal a regulation adopted by a state agency that is inconsistent with its enabling statute. It would also allow the people of Alaska to provide the legislature with the authority to repeal regulations through a simple resolution. He indicated that the most onerous portions of state government are the application of regulations to our lives. MR. KIMMEL believes that if the legislature can make those regulations more attuned to legislative intent, the public would be more pleased with their government and may understand it better. The public would also know that the policy makers could quickly and efficiently amend those regulations that they find onerous. He stated that this issue has come before the voters in the past, and now the time has come again for the voters to reduce the amount of time and money spent in legislation. The voters would have a chance to speak out about the proposed amendment in the next general election. Number 1746 CHAIRMAN KOTT asked how many times this issue has been presented to the voters. MR. KIMMEL replied that it has been presented to the voters three times. REPRESENTATIVE ROKEBERG said, "Once very narrowly (indisc.)." CHAIRMAN KOTT asked whether it was the first time or the last time. REPRESENTATIVE ROKEBERG said he believed it was the middle time [laughter]. He asked whether the Senate changed the language versus the resolution that was presented to the voters before. MR. KIMMEL believes the Senate did. He believes the original had administrative regulations included somehow. He does not know the entire history of that. REPRESENTATIVE ROKEBERG stated that it seemed to him that the language was slightly different and that was one of the concerns. Number 1808 REPRESENTATIVE CROFT stated that it is important to know the distinction of the language from the last three times "we've asked and been rejected." He said, "If we're asking them to do the same thing, it's one thing, to the extent that there's a material difference that would be important, but I'd like to see the last three ones that failed if you have copies of them." MR. KIMMEL replied that he does not have copies now, but could get copies for the committee. REPRESENTATIVE CROFT stated that it seems to be important if there is any difference from what has been tried three times previously. REPRESENTATIVE JAMES commented that what was in the voter pamphlet also needs to be seen. She stated that there was no effort on anyone's part to pass or not pass that, and it was difficult for people to understand. She said the other issue is that "it's a little out of synch with the rest of the things that we do in government where the first, second and third reading of issues and where the separation of powers, and, this, to do a resolution to overturn administrative law is a reach." REPRESENTATIVE JAMES indicated that we do have the right to undo regulation by pieces of legislation, but it is difficult to do if the reason it is being undone is because of the onerous intent that was not the intent of the legislation. She blames the legislature for that because they make very bland statements in their legislation which have to sometimes be characterized by the administration who sometimes guess wrong. She feels "a hammer" is needed. REPRESENTATIVE JAMES stated that some of the states that have passed this resolution never have to use it is because they have a hammer. This helps to have the negotiation between the administration and the legislature in order to solve the problem. Number 1932 CHAIRMAN KOTT agrees that the problem, to a large extent, has been brought about by themselves. He said, "It amazes me that if you're sponsoring a piece of legislation and it passes, and ultimately signs into law, there's going to be regulations out there. And then, as the sponsor of your piece of legislation, you should at least take some interest in the regulations to ensure that they meet your intent, and then work with the department to clarify anything that, perhaps, is incorrectly stated in the regulatory process." REPRESENTATIVE ROKEBERG informed the committee that he believes the questions Representative Croft raised earlier can be found in the file on HJR 1, a bill sponsored by Representatives Rokeberg and James during the Twentieth Alaska State Legislature. He stated, "I think one reason we felt very strongly about this last time, we felt that there was a change in attitude in the interest, particularly in a business community; as the amount of regulations has grown over the years because of these problems we just discussed." REPRESENTATIVE ROKEBERG believes there is a recognition among the public now that there has to be a simpler way to rectify some of those laws by regulation that are promulgated by the bureaucracy and the administration. He thinks a sound case can be made, and that the business community is in a position now to get behind that. He indicated that a point of frustration for he and Representative James has been airport regulations in which they tried to change four or five sentences in the leasing law to correct the commercial leasing activities at the international airports in the state. He stated that they are still waiting, four years later, for the regulations which became over 200 pages. He feels that if this "hammer" had been available back then the Department of Transportation and Public Facilities could have been a little more receptive to what the public wanted. Number 2045 REPRESENTATIVE MURKOWSKI referred to the enactment of a statute by way of an initiative with regard to the medical use of marijuana. She stated that the regulations are being worked on now and will take effect in June. She said there are many who believe the regulations and the statute are not necessarily consistent with the intent. She asked whether the ability to repeal the regulation changes when a statute has been enacted by initiative. MR. KIMMEL replied that he has not looked at that part of it. REPRESENTATIVE MURKOWSKI stated, by law, a statute that has been enacted by initiative cannot be repealed. REPRESENTATIVE JAMES believes that the same thing might apply in the case of an initiative as it would in a statutory change. The reason they would utilize this resolution process is because the regulations do not implement the intent of the law. She said if the regulations on the medical marijuana bill do not implement the intent of the law that would be a reason to turn them over. REPRESENTATIVE JAMES stated, "If you don't like the regulations and you can't find something in the law that they are, I mean, the law's so open, many times it is, that they could do it this way or this way, and they just chose the wrong way according to your opinion or according to the public, then that's a different issue. Then what you need to do is clarify the law if it's not specifically enough in the law as to what was meant, what the intent was, and that's why they've guessed wrong and taken the wrong approach. Then you need to change the law, you don't need to use a resolution. The only time you use a resolution is if there's some definite evidence that the regulation does not activate the intent of the law." REPRESENTATIVE CROFT expressed frustration at putting in the Constitution of the State of Alaska various things that "we have the power to do." He stated that when a regulation is contrary to statute, you can challenge it. He indicated that sometimes it is difficult to prove because the statute is so wide open that almost nothing is contrary to it. He said, "When there's a statute that we think isn't what we meant, is contrary to the statute, ... but the administration thinks it was and the court system thinks it was ... that's why we have this separation of powers. That's why it keeps getting rejected by the people, and, when we try to do it in statute, unconstitutional. We're saying that's not what we meant. ... We still have an option in that case, which is to change the statute. ... That's within our power now. ... I think it's been a consistent view of the people that that's just not, that's overstepping our bounds. We have a proper role to play in this. Right now, if the marijuana regulations don't reflect the statute, ... you can pass a law that ... changes it." REPRESENTATIVE CROFT continued to say, "We've looked at three strikes, you're out before. I think we're three strikes we're out on this proposal, and that we ought to start, after being told three times, at a tremendous expense, 'No', we ought to take 'No' for an answer. And we ought to start figuring out ways that are within our constitutional authority. ... Colorado does a sunset of regulations without law putting them back in. The fact that the legislature didn't approve it, is the legislature's opinion. ... It's an idea that is within ... our jurisdiction. The other [state] ... has a shift in the burden of proof, which I think you can do constitutionally. If we say, 'That's not what we meant.', then it's a much harder task to prove that it was. [It] could still be, right? God forbid, we might act out of pure partisan political actions in passing the resolution instead of pure public good. ... A court could still look at it and say, 'Well, the legislature passed a resolution by a close vote that said that's not what they meant, but, boy, it fits the statute just hand in glove', ... but the burden is now shifted. The court is going to force the person challenging it (indisc.) that it doesn't fit. You can shift that burden of proof and say, 'If the legislature said, 'That wasn't what we meant.', you, the agency, have to prove it was before we go any further. All of these things are at least arguably constitutional. They don't violate separation of powers, ... but I don't know why we're trying to get this dead horse to stand up and run." Number 2346 REPRESENTATIVE ROKEBERG responded, "Because of the Alive case." REPRESENTATIVE CROFT said, "The Alive case told us we couldn't do it. And we tried three times to get the approval of the people to do it and they keep telling us 'no.' When are we going to take 'no' for an answer? He believes that there is a genuine separation of powers argument that the people understand. He stated, "We ought to take that 'No' for what it was worth and try and figure out alternative approaches instead of just running this up again." Number 2369 REPRESENTATIVE JAMES indicated she heard Representative Croft say, "It's okay. We can do it with a two-thirds vote." She stated the issue is whether or not this can be done with a two-thirds vote or a majority vote. She specified that with this constitutional amendment it can be done with a majority vote, but without the constitutional amendment it cannot be done. She feels that if the administration was going to listen and change the regulation then they would have already done it. She said the public she has been talking with has said they think a majority vote should do it. REPRESENTATIVE JAMES stated that a resolution is not subject to a veto. She does not believe this is completely a whole separation of powers. She understands Representative Croft's argument and agrees that this seems to be controverting the whole system of putting forth a law that has not gone through the process outlined in the Constitution of the State of Alaska. She said, "Once it becomes in law, ... then we've given that authority of regulation writing to the administration, and, so, then we have hands-off without a two-thirds vote." She thinks it is a problem and she would be perfectly happy to take back some of the authorization. However, she does believe this is an option because no one wants to have the cost of the regulations in the legislature's budget, as opposed to the administration's budget. She feels it is unrealistic to believe that a two-thirds vote could always be accomplished. TAPE 99-43, SIDE B Number 0001 REPRESENTATIVE CROFT stated, "We're overruling the executive and the judiciary when we do this. The executives decided this ought to be in this way. We've given them the authority (indisc.) to be in that area, and there either is a judiciary case saying, 'Yeah, this is within the purview granted by the legislature or not.' So, it is entirely appropriate that when we seek to overrule the ... determination of the other two branches of government we do it with a two-thirds vote." REPRESENTATIVE CROFT disagreed with Representative James' comment that the public told her they wanted it by two-thirds. He argued, "The people have said three times they didn't. They wanted it by a two-thirds, not a majority. They wanted it the way it was." REPRESENTATIVE JAMES disagrees about what the court said. She said, "We didn't have constitutional authority to do what we did. By putting this in as a constitutional amendment, we have constitutional authority." She indicated there are several states that have done constitutional authority this way. She said the net result is that those states do not have a conflict anymore. Number 0085 REPRESENTATIVE ROKEBERG agrees with Representative Croft that this is a separation of powers issue. He said, "When Monsieur Montesquieu articulated the theory, and our Founding Fathers here in the state did it, ... At one point, there was not only a separation of powers theory, but there was even a balancing of powers theory ... implicit in that, and our Founding Fathers decided not to do that. They gave up an abundance of power to the executive. But they did reserve to the legislature the right to be the policy makers and law makers of the state." REPRESENTATIVE ROKEBERG believes the legislature should reserve the right to make the law. By granting authority to the executive agencies by statutory authority to adopt regulation, he feels we do cede that power. He stated that the point is to take back that power. He said he is beguiled by Representative Croft's theory of having a two-thirds vote to overcome two of the three branches of government. Number 0143 REPRESENTATIVE CROFT stated it is his belief that two different overrulings are being discussed. He referred to the Alive case that Representative James mentioned and stated that she is right that this case indicates that constitutional authority was not yet had. He said other states have ruled that way, and some have not. Other states are in agreement with the Alive case. He said, "Clearly, if there's some question on the regulation, the executive thinks that's the way to go. That's why they put the regulation, ... If it is so out of whack with the statute, you can bring it to court, and, if you're right, you will win. The court will say, 'Yeah. The statute says black and the reg[ulation] says white.' And they overrule regulations on that basis. ... We're really saying we want a power to do that even when a court says, 'Yeah. That looks like it fits.' That's what I mean by overruling, ... Not necessarily overruling the Alive case, but there's a branch of government who [is] supposed to do these reg[ulation]s and they do, and they disagree with us. Then there's a branch of government that's supposed to decide if things are done according to law, and they've said, 'The reg[ulation] fits.'" REPRESENTATIVE CROFT continued to say, "And we're about to say you're all wrong. ... We should do that by two-thirds ... We know resolutions. We have them all the time. ... They propose constitutional amendments, but aside from that, they're usually of wimpier stuff. And we should have to go through the formal process of a bill and have a super majority, a sizable majority, to say both branches were wrong in this instance. The judiciary upheld this reg[ulation], the executive put it in, but they're both wrong, and we're right. We ought to do that with some surety. ... Vetoes are overridden." Number 0242 REPRESENTATIVE KOTT stated that SJR 3 would be held in committee. He requested Mr. Kimmel provide the committee with the last three ballot propositions and the election pamphlets on this issue. REPRESENTATIVE MURKOWSKI asked that she be provided with information on the Alive case. REPRESENTATIVE JAMES stated that she agrees with the Alive case. Number 0332 CHAIRMAN KOTT called for a brief at-ease at 2:15 p.m. and called the meeting back to order at 2:17 p.m. HB 177 - FOSTER CARE & DELINQUENT MINORS CHAIRMAN KOTT announced the next order of business is House Bill 177, "An Act relating to foster parents; relating to the right of foster parents to have notice of, and testify at, delinquency hearings and to the disclosure of minors' records to foster parents; and amending Rules 3, 7, 10, 12, 21, 23, and 25, Alaska Delinquency Rules." CHAIRMAN KOTT indicated the committee would be taking up CSHB 177(HES), Version 1-LS0760\G. Number 0344 REPRESENTATIVE FRED DYSON, Alaska State Legislature, came before the committee as sponsor of HB 177. He noted that the bill cleans up a piece of the child protection bill from last year. He asked Ms. Lisa Torkelson to explain the bill. Number 0366 LISA TORKELSON, Legislative Assistant to Representative Fred Dyson, Alaska State Legislature, explained last year HB 456 was introduced which gave the right of foster parents to have notice of and testify at child-in-need-of-aid delinquency hearings, as well as disclose to them some records of children in their care. She noted that the child-in-need-of-aid portion was put into HB 375 - the governor's child protection bill - and this bill would take the delinquency portion and make it go to the same level as a child in need of aid. Number 0400 REPRESENTATIVE DYSON noted that last year there was unanimous support for the need of foster parents to have information on past criminal behavior and behavioral problems; and, that foster parents would be a valuable asset in the treatment plans, final placement plans, and court proceedings involving their children. That was included in the child-in-need-of-aid law, last year, and this bill takes care of the children in the other category that by-en-large have been adjudicated as delinquent. Number 0428 MS. TORKELSON noted that the only reason it was not included in the governor's child protection bill last year was because it was 64 pages long and it pretty much focused on children in need of aid. They were not comfortable with adding section 12, which deals with delinquency, and they requested it be done in a separate bill. Number 0449 REPRESENTATIVE ROKEBERG asked Representative Dyson why HB 15 is not stuck in this bill. REPRESENTATIVE DYSON replied they are very close. REPRESENTATIVE CROFT AND REPRESENTATIVE MURKOWSKI asked Representative Rokeberg to explain HB 15. REPRESENTATIVE ROKEBERG replied it is a bill that gives foster parents the right to protest the placement or removal of a child back to his/her natural parent(s) in court. REPRESENTATIVE DYSON noted he is a co-sponsor of that bill, and it is a good idea. Number 0485 REPRESENTATIVE CROFT asked what the material difference is between the two bills. REPRESENTATIVE ROKEBERG replied it is the right of a foster parent to protest the placement or removal of a child back to his/her natural parent(s) in court. Number 0516 REPRESENTATIVE CROFT stated that HB 15 assures the right of the foster parent to have a notice of and testify at delinquency hearings, but not necessarily ask for a hearing in a particular factual situation. REPRESENTATIVE ROKEBERG stated that is the distinction between the two bills. MS. TORKELSON said it basically includes the foster parents in the loop of the department because often times they have the most knowledge of the children. Number 0539 REPRESENTATIVE DYSON suggested passing HB 177 out of committee, at which point he would look at merging the bills either on the House floor or in the House Rules Standing Committee. He's sorry that he didn't think of it earlier. Number 0572 REPRESENTATIVE JAMES said she is happy to see this bill before the committee. She knows how important it is for foster parents to be included in the loop. She knows that when they have been left out of the loop it has been unfortunate for them and the kids. Furthermore, it's not easy to keep foster parents around. They can get discouraged fast, and they aren't easy to come by. She knows of the problems, having been a foster parent herself, but she's not sure, however, what would happen if a foster parent has erred. They should also have the right to speak on their own behalf. Number 0623 CHAIRMAN KOTT called for a brief at-ease at 2:24 p.m. and called the meeting back to order at 2:25 p.m. Number 0637 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health and Social Services, came before the committee to testify in favor of HB 177. It is appropriate to bring parity between the two statutes regulating delinquency proceedings and children in need of aid. He is concerned about HB 15, but as far as HB 177 is written, it is appropriate. He urged the committee to move it forward. Number 0666 CHAIRMAN KOTT asked Mr. Buttcane what his specific concerns are regarding HB 15. MR. BUTTCANE replied HB 15 speaks to very specific situations that arise in child-in-need-of-aid proceedings, and muddies the waters by transposing those into a delinquency proceeding. He would want to look very carefully at that before speaking in favor of merging the bills. He noted that it is a sound concept and that he thinks that foster parents should be treated as partners in dealing with either delinquents or children in need of aid, but HB 15 is something that the department probably would not want in the delinquency statute. Number 0714 REPRESENTATIVE ROKEBERG stated for clarification that it would not be in the delinquency statute. MR. BUTTCANE noted that HB 177 really speaks to the delinquency statutes. Number 0751 REPRESENTATIVE CROFT asked Mr. Buttcane to review HB 15 later knowing that it might be thrown together in the House Rules Standing Committee. He would like to know whether or not he has any objections before it goes to the House floor. REPRESENTATIVE CROFT asked Mr. Buttcane how the child-in-need-of-aid and delinquency statutes are distinguishable. MR. BUTTCANE replied a child in need of aid is a person who has been neglected or abused, whereas a delinquent is a person who has been a perpetrator or offender. In one, a child is being protected, while in the other, a child is being regulated to protect the community. Number 0830 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage in favor of HB 177. Foster parents are a real big help in juvenile delinquency cases. There appears to be a notice provision in the early stage of a juvenile delinquency case whereby a foster parent would have to be notified. The agency is wondering whether that means a foster parent for child in need of aid in which that child has done something wrong and has gotten into the delinquency system. Usually, the placement in a foster home happens after the arraignment. He further suggested considering the issue of safety in regards to delinquent children. He referred the committee members to page 7, Section 9, of the bill, and noted that foster parents need to know before a child in placed in their home about their prior records, incidents in that child's life, and their issues. It looks like the section deals with a court review, and noted a lot of the court files have pretty confidential material, such as a psychotherapist's review. Number 1018 REPRESENTATIVE JAMES said, from personal experience, foster parents ought to know everything about a foster child in their home. She doesn't understand his concern about not letting them know what they need to know in order to parent that child and to know what to expect. Number 1046 MR. McCUNE replied he is thinking about a case where an adolescent boy was sexually abused. The particulars of that abuse would be discussed with a therapist with a real clear understanding that the information is kept confidential. Foster parents have a legitimate need to know the generals of a case, but the particulars are included in the court's files. A foster parent doesn't need to know the details of the who, what, when and where. Number 1115 REPRESENTATIVE JAMES stated a birth parent knows all about the child from birth, whereas a foster parent has to jump in in the middle. Foster parents need all the help that they possibly can to understand what to anticipate and why a child does what he does. She agrees that the sordid details don't necessarily need to be part of an issue, but certainly the issues would need to be made available to the foster parent. Number 1156 MR. McCUNE agreed with Representative James. Number 1164 REPRESENTATIVE CROFT asked Mr. McCune whether the foster parents are considered the guardian or is the state. MR. McCUNE replied, generally, the Department of Health and Social Services has legal custody in both juvenile delinquency and child-in-need-of-aid cases. In child-in-need-of-aid cases there is a provision just for supervision, and in juvenile delinquency cases there could be a relative placement where the department would not have custody. Number 1213 REPRESENTATIVE CROFT asked Mr. McCune whether that is the reason for a gap when using the phrase, "parent or legal guardian." Foster parents fall between the two. Number 1227 MR. McCUNE replied, yes, but they have been given more and more rights and considerations in the past several years as the result of legislation. The buck stops, however, with the Department of Health and Social Services. Number 1249 REPRESENTATIVE JAMES responded that is the way it ought to be. A foster parent needs a place to go for responsibility. Number 1278 MR. BUTTCANE referred the committee members to page 3, section 3, of the bill, and noted that it would require the department to notify the foster parent of an informal action/adjustment, which is appropriate. A child who is in a foster home may be committing offenses and is asked to come in and talk with the department to explain his/her behavior and negotiate a consequence, or be held accountable through a delinquency petition. Number 1359 REPRESENTATIVE DYSON asked Mr. McCune whether there are any qualifying words for Section 9, in the bill, that would make him feel more comfortable. The language matches the child-in-need-of-aid section. MR. McCUNE replied, he thinks, it gives the courts the authority to hold back information of concern. He doesn't have a proposal to change it, however. Number 1419 REPRESENTATIVE ROKEBERG said, according to his reading of the section, it's just granting a foster parent - the person with a legitimate interest - the right to look at a portion of the court's record. Number 1452 MS. TORKELSON explained that this very issue was addressed last year, which resulted in the language in the section in order that the court could choose what information is given to a foster parent. Number 1492 REPRESENTATIVE CROFT said he sees the distinction, but he's not sure that the language accomplishes that. The language really says the portions relating to the child have to be released, which is everything. It doesn't say relating to the function or portions relating to the safety and welfare of what a foster parent should know. He's not sure how to draft it, however, so that it's not overly intrusive. Number 1589 REPRESENTATIVE MURKOWSKI noted that the bill says with the court's permission. She reads it as having the courts permissions "and" a person with a legitimate interest. REPRESENTATIVE CROFT said, "I think that's probably a correct reading, and if it is, then the court, even with people with legitimate interests, they don't have to do it if they decide they don't want to." Number 1644 REPRESENTATIVE ROKEBERG stated he reads it as the court giving permission for the portion of a record it wants the foster parent to see. Number 1668 CHAIRMAN KOTT said that is the way he reads it as well, and that is the intent of the sponsor. Number 1676 REPRESENTATIVE DYSON said, "Slap my mouth. I am more now of the persuasion than ever, that we need to be wary about limiting court prerogatives. My view is, we need to get gutter mechanics in the court system, but allow them quite a bit of discretion. In my own--the judges that I've dealt with, which are quite a few now, in--that are dealing with children's issues are generally very experienced and quite perceptive about these sort of things. My guess is we will not err or there won't be many problems in allowing the judges as Representative Rokeberg says is we know the files for those portions that are inappropriate." Number 1719 REPRESENTATIVE JAMES said she wishes that she has had the same experiences. Number 1730 REPRESENTATIVE ROKEBERG indicated that the committee, if the sponsor wishes, could put discretionary language in relation to the court to make it crystal clear. Number 1766 DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System, came before the committee to answer questions. The language was part of last year's child protection bill and it should be in this portion as well. The judges are comfortable with it. The concern that was brought to him was that the foster parents get the appropriate information relating to the children, but not information that is not relevant to them, such as personal information on the natural parents. Number 1839 REPRESENTATIVE CROFT referred to AS 47.12.310 and read the following: "(H) foster parent or relatives with whom the child is placed by the department as may be necessary to enable the foster parents or relatives to provide appropriate care for the child who is the subject of the case, to protect the safety of the child who is the subject of the case, and to protect the safety and property of family members and visitors of the foster parents or relatives." REPRESENTATIVE CROFT stated, based on that provision, the committee may have done enough by putting its concerns on the record. Number 1926 CHAIRMAN KOTT asked Representative Dyson whether he is comfortable with the language the way it is. REPRESENTATIVE DYSON replied yes. Number 1956 REPRESENTATIVE JAMES made a motion to move CSHB 177(HES) from the committee with individual recommendations and the attached fiscal note(s). There being no objection, it was so moved from the House Judiciary Standing Committee. SSHB 33 - ARRESTS BY PRIVATE PERSONS CHAIRMAN KOTT announced the next order of business is Sponsor Substitute for House Bill No. 33, "An Act relating to bounty hunters and to capturing criminal suspects or fugitives." CHAIRMAN KOTT called on Representative Fred Dyson, sponsor of the bill. Number 2035 REPRESENTATIVE FRED DYSON, Alaska State Legislature, came before the committee as sponsor of SSHB 33. He referred to a federal law back in the 1800s and some federal decisions that allowed for bounty hunters. This bill was prompted by the unfortunate experience when two or three gentlemen under contract, broke into a home in the Kenai area wearing black outfits and brandishing weapons, took a person out at gunpoint, and handcuffed him. There was quite a bit of concern. The public safety officers are concerned also for the people who are contracting to provide this service, particularly in the areas of Alaska where people take exception to having their homes broken into in the middle of the night and are prepared and equipped to resist those efforts. The first draft just forced the bounty hunters to register with the local law enforcement. The public safety officers asked them to just prohibit it. The public safety officers pick up any felony warrants as soon as they know about them. Any other jurisdiction, as in Canada or other countries, where they are willing to extradite, the public safety officers are willing to go out and get them. The public safety officers don't want people who are ducking warrants in other states or areas to be running around. REPRESENTATIVE DYSON further stated he is concerned about the well-being of the Alaskan citizen who is in custody of some non-sworn folks, and how they are going to be treated. He also wonders how the neighbors are supposed to respond to somebody getting rousted in the middle of the night at gunpoint. It is an area that needs to be addressed. Number 2289 REPRESENTATIVE JAMES asked whether this bill just eliminates bounty hunters or does it eliminate citizen's arrest. REPRESENTATIVE DYSON replied that it not their intention to do anything about citizen's arrest. Citizen's arrests are allowed. REPRESENTATIVE CROFT asked what was the law before Section 1. TAPE 99-44, SIDE A Number 0001 REPRESENTATIVE DYSON said, "...for a crime you didn't witness without a warrant. The only exception to that has been this old federal decision that empowered bounty hunters in essence do it on contract. If the person employing them had a warrant or they themselves or they could contract for folks to go get them. The law expects you to call the police and report, but they would choose to have you as a verifying witness not an enthusiastic participant." Number 0090 REPRESENTATIVE MURKOWSKI asked whether there is anything on the state books now that regulates bounty hunters. REPRESENTATIVE DYSON said that it is his understanding that there is not. Number 0136 REPRESENTATIVE MURKOWSKI asked whether there is anything in federal statute that could be used within the individual states that would give some guidance or direction. REPRESENTATIVE DYSON didn't know the answer. Whenever this has come up, it always goes back to the case in 1867 or 1878 in a federal court where the decision authorized it. Several states are moving towards regulating it. Number 0222 DAVID HUDSON, First Sergeant, Division of Alaska State Troopers, Department of Public Safety, testified via teleconference from Anchorage. In regard to the situation in the Kenai area recently, they support this bill. By placing the onus of arrest on peace officers in a majority of situations in eliminating the private persons arrest in crimes not committed or attempted the presence of the person making the arrest, they hope to eliminate some of the problems which they have seen regarding bounty hunting. National news has been responsive to these issues of bounty hunters across the nation, and there is national bounty hunters association where anybody, under federal statutes dating back to the 1800s, can go into another state, or they have no limits to what they can do in regards to making arrests under the federal statutes of someone who has absconded from a bail or bondsman or something of that nature. It is a way of the bail bondsman not losing his/her money when they put up the funds to have a person released in their community. They will lose those funds if the person is not brought back before the court in a specific time. That is what the impetus is for bounty hunters. There are no particular statutes or licensing requirements for bounty hunters in the state of Alaska. He doesn't know of any in other states either. They are in support of the bill and believe it will preclude situations like the previous one. REPRESENTATIVE GREEN asked Sergeant Hudson how many arrests have been made by bounty hunters roughly per year, or per decade. SERGEANT HUDSON can think of several in his personal experience, however he has no statistical documentation to provide today to answer that. REPRESENTATIVE GREEN asked whether this is not an uncommon thing to have people being arrested by someone coming in as a bounty hunter. SERGEANT HUDSON said he is aware of a situation approximately a year ago in Homer that there was a person in that area, or believed to be in that area, for whom bounty hunters came after. When they were unable to locate that individual on their own, they did contact the Alaska State Troopers. The troopers then verified that there was a warrant for the individual, and they went out, located and arrested him. He felt that if the bounty hunters had been able to find the person in a timely manner, they would have made the arrest and would have removed the individual from the state and the troopers probably would have never known about it. As it is now, they would probably not know about these arrests if they happened smoothly, and the law enforcement wasn't called in as it was in the Soldotna case. REPRESENTATIVE GREEN asked whether Sergeant Hudson has any idea of how much mischief has been caused by either false arrests or the Kenai area situation. SERGEANT HUDSON agreed the scenario in the Kenai area could have played out extremely different than what it had. If he remembers correctly, the individual was seized from the father's home, and the father then took a gun and went looking for the bounty hunters. There were numerous law enforcement officers who were called to the scene into areas looking for them for the potential home invasion, which it sounded like when the call was made for help on 911. There is no doubt in anybody's mind that the situation could have turned out extremely different; however, in that case no one was injured. Number 0604 REPRESENTATIVE JAMES asked how there wouldn't also be a charge against these folks for unlawful use of deadly force. SERGEANT HUDSON replied that these individuals were charged with assault under Alaska statutes. He is not familiar with what the status is of the current case. REPRESENTATIVE DYSON told Representative James that the court case is going on this week. He asked Sergeant Hudson if he thinks that the bail bonds industry will almost disappear if the bill does pass. SERGEANT HUDSON finds that hard to believe. People are entitled to bail under the constitution so he suspects that they will continue to operate no matter how this law changes. REPRESENTATIVE DYSON asked what the remedy will be if someone jumps bails or fails to appear on a misdemeanor. SERGEANT HUDSON answered that if a person fails to respond to court, the judge would then issue a bench warrant for that person and they would eventually be arrested through the normal arrest system. He is unfamiliar with the statutes in regard to bail bondsmen if a subject doesn't show up to court on Monday, but is subsequently arrested and taken in front of a magistrate or judge on Tuesday that is of the bail bondsman's fees would be, so he can't answer that. REPRESENTATIVE DYSON commented that bail bondsmen are very inventive and they will find a way to look after their own interests. Number 0772 REPRESENTATIVE CROFT commented that he is still trying to understand the current law, AS 12.25.030, as to his ability to make a citizen's arrest. He interprets that he could under part (a) under three situations: if the crime was committed in his presence, if he is right about who did it, and if it is a felony even though it was not committed in his presence, or if he is right about a felony having been committed, and he has reasonable cause for believing that the person he goes out and grabs did it. SERGEANT HUDSON indicated that Representative Croft's interpretation is similar to what he also sees when he reads this statute. Currently under AS 12.25.030 under parts (2) and (3), it allows citizens of the state of Alaska to make an arrest, as a law enforcement officer could, for a felony either committed or not committed in their presence or with reasonable suspicion or cause. Whereas under the amendment that is before them under 12.25.025 which would be in Section 1, lines 6-8, a private person would now be eliminated from making a felony arrest for a crime committed not in their presence. REPRESENTATIVE CROFT asked whether Sections 2 and 3, not including bounty hunters, have been problematic for the state troopers. He asked whether they have a lot of vengeance arrests and some that have been wrong. SERGEANT HUDSON answered that he is not aware of any specific problems across the state where a citizen has made a felony arrest, and it has been an issue. He doesn't have any statistical information to offer, just his own personal experience. Number 0954 REPRESENTATIVE GREEN asked Sergeant Hudson if he is familiar with the article where Dean Guaneli, Chief Assistant Attorney General, was quoted about untrained people getting liquored up and kicking in the wrong doors. He asked whether all bounty hunters are licensed to carry concealed weapons. SERGEANT HUDSON answered as far as carrying concealed weapons under the Alaska concealed handgun permit program, there is no formal carrying concealed weapons for bounty hunters or any other individuals specifically other than the citizens of the state of Alaska meeting the criteria as so deemed. There are not any statutes or laws or licensing in regards to allowing any particular business, such as a bounty hunter, to carry a concealed weapon. Even in their security guard licensing program, they are required to be working for their company, and the weapons are not concealed. The weapons are exposed, and they wear a uniform and identification from their company. He is not aware of any specifics in regard to bounty hunters being legally authorized in the state of Alaska carrying concealed weapons. REPRESENTATIVE GREEN are these people uniformed and showing weapons when they go after these bond jumpers. SERGEANT HUDSON said in his limited experience with people who profess to be bounty hunters, they put on what they call a uniform, put a sign on their back saying that they are bounty hunters or call themselves whatever they choose to call and wear sidearms and go about their business. In our state, if they are not carrying a concealed weapon, if they are carrying a firearm exposed, that is not against the law unless they are a felon, or there is a municipal code against that so they can wear some type of identifying marks as long as they were not impersonating a public officer, they wouldn't be breaking the law. REPRESENTATIVE JAMES said she doesn't understand, under existing laws, that private persons may arrest a person without a warrant. That means they have to convince them that they are arrested. She doesn't believe they can pull their sidearm without violating the unlawful use of deadly force, unless that person is threatening them in some way. She can't imagine anybody arresting somebody without some power to overcome them, either physically or with a gun, and it seems like the law is clear that they can't do that unless their life is being threatened. She asked Sergeant Hudson to respond to that. SERGEANT HUDSON said he didn't understand exactly what she is asking, other than the fact that he believes the law allows during the making of an arrest, to utilize reasonable force. If they could legally make an arrest, then they could use whatever would be the justifiable minimum force. He assumes that if a bounty hunter or citizen had a legitimate reason to make an arrest, then they could utilize a level of justifiable force up to the level needed to make that arrest. It is not appropriate for a citizen or a law enforcement officer to start waving firearms around and assaulting people, even during an arrest, unless that level of force is justified. REPRESENTATIVE JAMES mentioned a case where someone was up on a ladder trying to steal something, and the homeowner took away the ladder and held the person at gunpoint until the police came. SERGEANT HUDSON said it is not uncommon in Alaska for the citizens to apprehend individuals burglarizing their homes or stealing their property and utilizing such methods. Number 1348 CORY WINCHELL, Administrative Assistant to Representative Pete Kott, Alaska State Legislature, appreciates the bill and is not making a position on it. The majority of the bounty hunters going after these people have a contract. They have been bailed out for serious crimes, hardcore felony crimes. They actually go in, they have been taken into custody, and they bond out. They sign a contract that basically says if I'm not showing up for these things you have the right to go into my house, the people that come in and sign for them actually say you can come into my house to find him if you need to if he doesn't show up. By that contract it is spelled out, we have been doing a bail type system since the country's inception. All of them are those types of contracts and then the bounty hunters actually are attached to or are employees to for the companies that do the bailing. You have a contract down and say I promise to pay you guys 10 percent of this or x amount, we're going to bail you out at ten percent of this and you are going to show up for every single one of your hearings and if you don't, we are going to chase you down. Officer Hudson did talk about cross-jurisdictional boundaries. They are basically enforcing a contract and the situations do get sticky. If he can argue on behalf of Representative Dyson, there was an occurrence in Arizona where someone actually kicked down the wrong door and there was killing that occurred. They killed innocent people. So accidents do occur. However, by enacting this bill they are going to making substantial inroads into the bail system. It is by contract that they do these things for the most part. He doesn't know any posses that say "Hey, let's go find us some felons and make some arrests because we can under an 1800s statutes." It is a contractual basis, a bail bonding basis and one concern is the misdemeanors. Police officers perhaps won't have the time, the energy, the gumption, practically speaking, if they force the policeman to go out and execute warrants, even if these folks are bailed out on misdemeanor charges, practically is just might not happen. He spoke to Representative Dyson for amendments to placing a registration in regard to bounty hunters, getting into their background, history and ensuring that they are not psychopaths, and the second thing is for any felony warrants that they are actually executing that they contact local law enforcement, that they make it mandatory by statute, as to the time, whether they are under contract to go into that house, to ensure that the contract is being complied with on both ends and/or to ask for backup or have the police do it on the more serious felony levels. REPRESENTATIVE GREEN asked whether Mr. Winchell was saying if this is passed that the cost of bail bonding will go up or that there will be people who will no longer serve as bail bondsmen. MR. WINCHELL answered no. He said under Washington's system, the courts themselves can offer bonding arrangements so it can be incorporated back into the court, and perhaps that is the flavor of where the law is going. They want the courts to do it and not private individuals. He was only suggesting that if they can't private bounty hunters for bail bonding agents under contract and if they require policemen in general to do it, they might have bail bonding agencies that are not willing to bond out on the smaller measures because they know they are going to fly and perhaps law enforcement can get to it. They have more pressing issues. There will be a burden on that. There is a contract involved; they know if they skip or run that someone will chase them. REPRESENTATIVE GREEN asked, if the bounty hunters were to register, would that go so far down the road that they might as well allow the peace officer to go get them rather than the bounty hunter. MR. WINCHELL answered yes they have taken the felonies and placed them into the police officer's arms and notable so in the case of felonies. REPRESENTATIVE MURKOWSKI asked Mr. Winchell if Washington had a registration for bounty hunters. MR. WINCHELL said he was associated with one of the bail bonding agencies and they would go after unclassified. Whether they were registered or not, he didn't have to put that within the purview. He linked on as an associate. He was not registered, but he doesn't know if they were or not. On the weapon's issue, he does have a concealed weapon in Washington and can carry it. Number 1747 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage saying they support the legislation. It is better to leave this type of thing to professional law enforcement people. He wonders whether the statute conditions of release on the amendment should be AS 12.30.020 rather than AS 12.30.030. He had a question on the type of force allowed in making arrest or terminating his case, that is found in the justification statutes AS 11.81.390. It is important to note that they can use non-deadly force in making arrests that have occurred in their presence, but deadly force should only be used where there is a felony against the person or involving use of force against the person involving a firearm. There have been cases of someone making a citizen's arrest on minor vandalism and being charged with assault in that situation and not have a justification defense. CHAIRMAN KOTT noted that they do have an amendment to replace AS 12.30.030 with AS 12.30.020. MR. McCUNE wondered if the words "conditions of release" referred to the conditions of release that are set by the judicial officer and those are usually in AS 12.30.020. MS. TORKELSON told them that Legislative Legal and Research Services explained to her that the portion on page 4, line 7, that is taken out 12.25.030(b), they moved (b) to (a), therefore it should read 12.25.030. It was a typographical error. Number 1990 REPRESENTATIVE JAMES made a motion to adopt Amendment 1, which reads as follows: Page 4, following line 7: Insert a new bill section to read: "* Section 3. AS 12.70.130 is amended to read: Sec. 12.70.130. Arrest without warrant. The arrest of a person may also be lawfully made by a peace officer [OR A PRIVATE PERSON] without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year, When [,but when] arrested, the accused must be taken before a judge or magistrate without unnecessary delay and, in any event, within 24 hours after arrest, including Sundays and holidays. A [, AND] complaint shall be made against the accused under oath setting out the ground for the arrest as in AS 12.70.120. Thereafter, the answer of the accused shall be heard as if the accused had been arrested on a warrant." REPRESENTATIVE GREEN objected for discussion purposes. He noted that the amendment says Section 3, and he believes it should be Section 6. CHAIRMAN KOTT agreed that it should read Section 6. With that change noted, he asked whether there was any objection. There being none, Amendment 1 was so adopted. Number 2024 REPRESENTATIVE JAMES made a motion to move Amendment 2, which reads as follows: Page 4, Line 7 Delete "AS 12.30.030" Add "AS 12.25.030" CHAIRMAN KOTT asked whether there is any objection. There being none, Amendment 2 was so adopted. Number 2042 REPRESENTATIVE CROFT said they have dealt with the bounty hunter issue to his satisfaction, but he is still struggling with the change in the authority of a private person to do something. He noted that it is a fairly significant change in the law that a private person cannot arrest somebody who committed a felony unless it was done in his presence. For example, somebody breaks into his house, he gets home and the person is outside on the street, his wife says "That is the one," and now he is limited to calling the police. It may be what they want to do, but he would like more discussion on that issue. REPRESENTATIVE DYSON responded to Representative Croft that his wife could make the arrest with his assistance. As long as somebody who witnessed the crime was there, he/she is the one technically making the arrest. They don't want people without any knowledge of the crime doing it. REPRESENTATIVE JAMES made a motion to move SSHB 33, Version 1-LSO240\D, as amended, from the committee with individual recommendations and the attached zero fiscal note(s). There being no objection, CSSSHB 33(JUD) was so moved from the House Judiciary Standing Committee. ADJOURNMENT CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 3:38 p.m.