Legislature(1999 - 2000)

04/29/1999 03:10 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         HOUSE JUDICIARY STANDING COMMITTEE                                                                                     
                   April 29, 1999                                                                                               
                     3:10 p.m.                                                                                                  
MEMBERS PRESENT                                                                                                                 
Representative Pete Kott, Chairman                                                                                              
Representative Joe Green                                                                                                        
Representative Norman Rokeberg                                                                                                  
Representative Jeannette James                                                                                                  
Representative Lisa Murkowski                                                                                                   
Representative Eric Croft                                                                                                       
Representative Beth Kerttula                                                                                                    
MEMBERS ABSENT                                                                                                                  
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                              
* HOUSE BILL NO. 214                                                                                                            
"An Act relating to litigation involving correctional facilities;                                                               
and amending Rules 59(f), 60(b), 62, and 65, Alaska Rules of Civil                                                              
     - HEARD AND HELD                                                                                                           
HOUSE BILL NO. 135                                                                                                              
"An Act relating to use of eavesdropping and recording devices by                                                               
peace officers."                                                                                                                
     - MOVED CSHB 135(JUD) OUT OF COMMITTEE                                                                                     
HOUSE JOINT RESOLUTION NO. 6                                                                                                    
Proposing amendments to the Constitution of the State of Alaska                                                                 
relating to state aid for education.                                                                                            
     - MOVED HJR 6 OUT OF COMMITTEE                                                                                             
(* First public hearing)                                                                                                        
PREVIOUS ACTION                                                                                                                 
BILL: HB 214                                                                                                                    
SHORT TITLE: PRISON LITIGATION                                                                                                  
SPONSOR(S): REPRESENTATIVES(S) MULDER                                                                                           
Jrn-Date    Jrn-Page           Action                                                                                           
 4/27/99      1027     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 4/27/99      1027     (H)  JUD                                                                                                 
 4/29/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
BILL: HB 135                                                                                                                    
SHORT TITLE: POLICE USE OF EAVESDROPPING DEVICES                                                                                
SPONSOR(S): REPRESENTATIVES(S) KOTT                                                                                             
Jrn-Date    Jrn-Page           Action                                                                                           
 3/12/99       438     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 3/12/99       438     (H)  JUDICIARY                                                                                           
 4/09/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/09/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 4/21/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/21/99               (H)  HEARD AND HELD                                                                                      
 4/21/99               (H)  MINUTE(JUD)                                                                                         
 4/29/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
BILL: HJR 6                                                                                                                     
SHORT TITLE: CONST. AM: EDUCATION FUNDING                                                                                       
SPONSOR(S): REPRESENTATIVES(S) KOHRING, Coghill                                                                                 
Jrn-Date    Jrn-Page           Action                                                                                           
 1/19/99        17     (H)  PREFILE RELEASED 1/15/99                                                                            
 1/19/99        17     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/19/99        17     (H)  HES, JUDICIARY, FINANCE                                                                             
 2/05/99       146     (H)  COSPONSOR(S): COGHILL                                                                               
 3/16/99               (H)  HES AT  3:00 PM CAPITOL 106                                                                         
 3/16/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 3/23/99               (H)  HES AT  3:00 PM CAPITOL 106                                                                         
 3/23/99               (H)  HEARD AND HELD                                                                                      
 3/23/99               (H)  MINUTE(HES)                                                                                         
 4/01/99               (H)  HES AT  3:00 PM CAPITOL 106                                                                         
 4/01/99               (H)  MEETING CANCELED                                                                                    
 4/10/99               (H)  HES AT 10:00 AM CAPITOL 106                                                                         
 4/10/99               (H)  MOVED OUT OF COMMITTEE                                                                              
 4/10/99               (H)  MINUTE(HES)                                                                                         
 4/12/99       724     (H)  HES RPT 1DP 4NR                                                                                     
 4/12/99       724     (H)  DP: COGHILL; NR: GREEN, MORGAN,                                                                     
 4/12/99       724     (H)  WHITAKER                                                                                            
 4/12/99       724     (H)  FISCAL NOTE (GOV)                                                                                   
 4/26/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/26/99               (H)  HEARD AND HELD                                                                                      
 4/29/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
WITNESS REGISTER                                                                                                                
REPRESENTATIVE ELDON MULDER                                                                                                     
Alaska State Legislature                                                                                                        
Capitol Building, Room 507                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2647                                                                                                      
POSITION STATEMENT:  Testified as sponsor of HB 214.                                                                            
DEAN GUANELI, Chief 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 214 and explained proposed                                                                 
GERALD LUCKHAUPT, Attorney                                                                                                      
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency                                                                                                      
130 Seward Street, Suite 409                                                                                                    
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2450                                                                                                      
POSITION STATEMENT:  Answered questions on HB 214.                                                                              
ACTION NARRATIVE                                                                                                                
TAPE 99-45, SIDE A                                                                                                              
Number 0001                                                                                                                     
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee                                                                
meeting to order at 3:10 p.m.  Members present at the call to order                                                             
were Representatives Kott, Rokeberg, Croft and Kerttula.                                                                        
Representatives Murkowski, Green and James arrived at 3:12 p.m.,                                                                
4:35 p.m. and 4:44 p.m., respectively.                                                                                          
HB 214 - PRISON LITIGATION                                                                                                      
CHAIRMAN KOTT announced that the first item of business would be                                                                
House Bill No. 214, "An Act relating to litigation involving                                                                    
correctional facilities; and amending Rules 59(f), 60(b), 62, and                                                               
65, Alaska Rules of Civil Procedure."                                                                                           
Number 0067                                                                                                                     
REPRESENTATIVE ELDON MULDER, Alaska State Legislature, sponsor,                                                                 
explained that HB 214 is largely modeled after a federal statute                                                                
that sought to accomplish the same end.  It provides that court                                                                 
decisions affecting Alaska's prison system be as direct and                                                                     
unobtrusive as possible to the overall operations of the prison                                                                 
system.  Currently, as seen with the Cleary case, judicial                                                                      
judgments are allowed to make broad, sweeping requirements of the                                                               
entire system in order to solve specifically identified,                                                                        
nonsystemic problems within the Department of Corrections (DOC).                                                                
REPRESENTATIVE MULDER noted that HB 214 requires that any court                                                                 
orders or consent decrees be limited in scope, to include only the                                                              
specific problems or issues contained in the original complaint.                                                                
It also requires the court to consider the overall effect of its                                                                
decisions on the management of, and fiscal impact upon, the                                                                     
department.  Alaska's constitution clearly states that the                                                                      
legislature has the exclusive right to appropriation, he said.                                                                  
Recent court orders and consent decrees that require certain levels                                                             
of funding and services, however, are in direct conflict with the                                                               
legislature's exclusive appropriation powers.  Representative                                                                   
Mulder commented, "And I'm sure we all remember the ... ongoing                                                                 
battle that we've had with the court in relation to noncompliance,                                                              
and being fined, and paying the fines back to ourselves."                                                                       
REPRESENTATIVE MULDER told members that the far-reaching effects of                                                             
court orders and consent decrees have also conflicted with the                                                                  
administrative branch's requirement to manage state facilities and                                                              
to carry out several constitutional goals of prison administration.                                                             
While the legislature recognizes the judiciary's ability to ensure                                                              
the constitutional rights of Alaska's prison population, it also                                                                
recognizes that a constitutional separation of powers and duties                                                                
allows the state to effectively carry out its function.                                                                         
Representative Mulder said that HB 214 will hopefully accomplish                                                                
that goal.                                                                                                                      
REPRESENTATIVE MULDER stated his belief that the DOC doesn't really                                                             
run its own institutions, which instead are run by a                                                                            
court-appointed monitor who determines what the right conditions                                                                
are,  including appropriate population levels within each                                                                       
institution, whether meals should be hot, and a myriad of other                                                                 
considerations,  to determine whether the state is in compliance.                                                               
This has set up a fundamental problem in trying to administer the                                                               
DOC.  Representative Mulder expressed the belief that HB 214 will                                                               
go a long way towards restoring control to the commissioner.                                                                    
REPRESENTATIVE MULDER pointed out that Alaska's prison system is                                                                
successful and progressive, not antiquated, and he isn't seeking,                                                               
to return the state to the Dark Ages.  Rather, he is trying to                                                                  
retain a balance within this prison system and its funding,                                                                     
recognizing that every dollar the state must spend for prisoners,                                                               
beyond what it would normally spend, otherwise could go for roads,                                                              
education, universities or other essential services, especially                                                                 
when there are huge budget deficits.  He noted that Mr. Luckhaupt,                                                              
drafting attorney, had done a lot of research over the years                                                                    
regarding the national model of the Prisoner Litigation Reform Act                                                              
(PLRA), and was available for questions.                                                                                        
Number 0389                                                                                                                     
REPRESENTATIVE CROFT asked, "What do you mean we pay fines to                                                                   
ourselves?  How does the Cleary fine work?"                                                                                     
REPRESENTATIVE MULDER replied, "It was a matter where the court                                                                 
ordered us to pay fines for overcrowding at a certain preset                                                                    
amount, over millions of dollars each year.  And we'd end up                                                                    
appropriating the money -- well, the House would take the action,                                                               
where we'd actually appropriate it and ... appropriate it back to                                                               
ourselves, because ... there was no entity to receive it.  And the                                                              
Senate just flat refused to make the appropriation at all. ... She                                                              
[Judge Hunt] was fining us with no definite end recipient, other                                                                
than the general fund."                                                                                                         
Number 0444                                                                                                                     
REPRESENTATIVE CROFT asked if, in the House version of that, the                                                                
legislature would write a check to the court system for the fine                                                                
and then appropriate the money back from the court system to                                                                    
wherever they want.                                                                                                             
REPRESENTATIVE MULDER clarified that it would be to the general                                                                 
REPRESENTATIVE CROFT asked whether that is much of a deterrent.                                                                 
REPRESENTATIVE MULDER replied, "Not really, and I think Judge Hunt                                                              
recognized that."                                                                                                               
Number 0470                                                                                                                     
REPRESENTATIVE ROKEBERG asked why the monitor remained in place                                                                 
even after the finance committees and the subcommittee on                                                                       
corrections made an agreement the previous year regarding sending                                                               
prisoners to Florence, Arizona, to get relief from Cleary.                                                                      
REPRESENTATIVE MULDER responded with his interpretation that they                                                               
had reached a critical point with the court-appointed monitor and                                                               
the court.  The judge, increasingly impatient with the                                                                          
noncompliance, was deliberating about either taking money from the                                                              
general fund, for some undetermined action or forcing the early                                                                 
release of prisoners.  Representative Mulder stated:                                                                            
     And when working with the department, and with the Governor's                                                              
     office - he appealed directly to us, asking us to take the                                                                 
     leap of faith and try and ... come in full compliance with                                                                 
     capacity levels, which cost us somewhere between $8 and $10                                                                
     million - it was with the hope or desire that ... the                                                                      
     court-appointed monitor would leave.  And I believe that is                                                                
     still going to be the action taken by the department, after we                                                             
     leave this spring.  But, heretofore, that has still not                                                                    
     And, as you've read the paper recently, the court-appointed                                                                
     monitor is still finding problems, and will probably continue                                                              
     to find problems with the prison system. ... We think ...                                                                  
     we've complied.  They will continue to find little things that                                                             
     they feel are not in compliance, in my estimation.  And I have                                                             
     great fear whether we would ever be able to petition the court                                                             
     ... to get ourselves out of Cleary.                                                                                        
Number 0644                                                                                                                     
REPRESENTATIVE MURKOWSKI asked whether the consent decree in HB 214                                                             
is open-ended in duration.                                                                                                      
REPRESENTATIVE MULDER affirmed that.                                                                                            
REPRESENTATIVE MURKOWSKI inquired whether anything in it would                                                                  
allow that if situations changed, the consent decree would no                                                                   
longer be in force.                                                                                                             
REPRESENTATIVE MULDER deferred to Mr. Guaneli and Mr. Luckhaupt.                                                                
Number 0689                                                                                                                     
REPRESENTATIVE MURKOWSKI asked if Representative Mulder's                                                                       
understanding is that it could possibly continue in perpetuity.                                                                 
REPRESENTATIVE MULDER noted that the legislature had passed a                                                                   
resolution several years ago, requesting the Department of Law to                                                               
go to court, in an appeal to have this removed; the department                                                                  
hasn't taken that action yet.  He pointed out that the Department                                                               
of Law would be testifying that day, largely in support of HB 214,                                                              
which they believe would enhance their position in court, he said,                                                              
were they to go forward and do that.                                                                                            
Number 0730                                                                                                                     
REPRESENTATIVE ROKEBERG asked how much the legislature has                                                                      
increased the DOC's budget, both by percentage and dollar amounts,                                                              
since the Cleary settlement.                                                                                                    
REPRESENTATIVE MULDER indicated he would provide those numbers,                                                                 
which are substantial.                                                                                                          
REPRESENTATIVE ROKEBERG asked if there has ever been a court                                                                    
challenge regarding the court's ability to make appropriations,                                                                 
which is what he believes has happened here, in effect, by                                                                      
overstepping its powers to mandate appropriations.                                                                              
REPRESENTATIVE MULDER answered, "The only way to effectively do                                                                 
that, I believe, Representative Rokeberg, is to get ourselves out                                                               
from underneath the consent decree, because the court would say by                                                              
joining into the consent decree we implicitly agreed to ... provide                                                             
these certain functions."                                                                                                       
REPRESENTATIVE ROKEBERG asked whether the legislature had agreed to                                                             
REPRESENTATIVE MULDER said no, the Department of Law did.  The                                                                  
legislature has never agreed to a consent decree, and has                                                                       
repeatedly tried to reflect that position to the courts and to the                                                              
Department of Law.                                                                                                              
Number 0848                                                                                                                     
REPRESENTATIVE ROKEBERG noted that the latest complaints by the                                                                 
monitor were regarding the Arizona facility under contract.  He                                                                 
asked if it has been the policy, or is part of the settlement, that                                                             
any privately owned correctional facilities would not be under                                                                  
REPRESENTATIVE MULDER replied that although the DOC still maintains                                                             
that the outside facility doesn't fall under Cleary, the judge has                                                              
ruled otherwise, in the court monitor's favor.                                                                                  
Number 0915                                                                                                                     
REPRESENTATIVE MULDER advised members that the Department of Law                                                                
had requested amendments.  He specified that he had no problems                                                                 
with the first two, but would like some discussion on the third.                                                                
Number 0940                                                                                                                     
DEAN GUANELI, Chief Assistant Attorney General, Legal Services                                                                  
Section-Juneau, Criminal Division, Department of Law, reminded                                                                  
members that running a prison system is perhaps one of the most                                                                 
difficult tasks of government.  It is particularly difficult in                                                                 
Alaska because the state not only does what most states do in                                                                   
running a standard penitentiary system, but it also takes over                                                                  
functions usually handled at the county level, which is running                                                                 
jails.  In many instances, jails are more difficult to run, because                                                             
of the hundreds or thousands of people in and out yearly.                                                                       
Therefore, the state needs the utmost flexibility to run its prison                                                             
MR. GUANELI emphasized the difficulty that the legislature has in                                                               
putting together a budget every year, particularly when revenues                                                                
are wildly cyclical.  These two functions - the executive branch                                                                
actually running the prison and the legislative branch setting the                                                              
policies and fiscal constraints - set up a certain amount of                                                                    
tension.  In addition, the courts sometimes get involved in these                                                               
cases and must resolve certain legal issues that arise.                                                                         
MR. GUANELI advised members that the Alaska Supreme Court has                                                                   
recognized that the courts shouldn't be involved in the day-to-day                                                              
running of the prison, which is an executive branch function.                                                                   
"That generally has not been our experience in the trial court, in                                                              
superior courts," he added.  "Many people don't know it, but we                                                                 
actually went to trial in the Cleary case in 1984.  As a result of                                                              
that trial, the judge found that we had one of the safest, most                                                                 
humane systems in the country, and it was not overcrowded at the                                                                
time.  But, the judge said, '... Even though it is not                                                                          
unconstitutionally overcrowded now, I think it is going to be in                                                                
the future, and, therefore, I am going to impose certain limits ...                                                             
on the population.'"                                                                                                            
MR. GUANELI said as a result of that order and getting back into                                                                
negotiations with the plaintiffs, the state ultimately entered into                                                             
the Cleary consent decree, agreeing to certain population caps that                                                             
actually were higher than the caps that the judge was going to                                                                  
impose.  Therefore, the state got a better deal out of negotiation                                                              
than the judge was going to impose.                                                                                             
MR. GUANELI told members that legislation like HB 214 takes the                                                                 
court out of that role.  In the first instance, it requires that                                                                
the court find that some current unconstitutional condition that                                                                
justifies taking action.  Even then, this legislation recognizes                                                                
that the landscape may change completely in a couple of years,                                                                  
including changes in population, facilities, staffing or budgets.                                                               
All of those executive and legislative branch activities are really                                                             
beyond the court's control, and after a couple of years, the                                                                    
court's decision may be out of date.  Under HB 214, the state is                                                                
allowed back into court after two years, asking that a order be                                                                 
terminated; if the plaintiffs can't show that conditions are still                                                              
unconstitutional, the court is obligated to terminate its order.                                                                
MR. GUANELI explained that all states have the same system of court                                                             
rules allowing that unusual, unexpected changed circumstances                                                                   
justify some relief; it is only rarely that states can get out of                                                               
these court orders.  Under Alaska law, it has to be an                                                                          
extraordinary circumstance to allow getting out of an order, and it                                                             
must be proved that it would be unfair to make compliance with the                                                              
order continue.   Furthermore, that is a discretionary decision by                                                              
the court, and those kinds of discretionary decisions are rarely                                                                
overruled.  This kind of situation has been hampering state                                                                     
correctional facilities and legislatures all over the country.  It                                                              
led Congress to adopt this kind of legislation at the federal                                                                   
level.  Mr. Guaneli commended Representative Mulder for introducing                                                             
this needed legislation.                                                                                                        
MR. GUANELI addressed how HB 214 would apply to consent decrees or                                                              
orders issued in the past.  After a one-year period following the                                                               
effective date of this Act, the state could make a motion to                                                                    
terminate any existing court decrees.  Unless the plaintiffs could                                                              
prove that there are still unconstitutional conditions, the judge                                                               
would be obligated to terminate the order.  That provides the                                                                   
plaintiffs a year to gather evidence, Mr. Guaneli said, and it                                                                  
recognizes that conditions change.  He noted that the three                                                                     
proposed amendments were in writing.                                                                                            
Number 1271                                                                                                                     
CHAIRMAN KOTT asked Mr. Guaneli to walk the committee through what                                                              
the court looked at to determine whether there would be future                                                                  
overcrowded conditions.  He asked if there is any correlation with                                                              
what has happened nationwide, particularly in the federal system,                                                               
and if Alaska's system is being overburdened.                                                                                   
Number 1305                                                                                                                     
MR. GUANELI restated that there had been a trial in this case;                                                                  
after a six-week trial in 1984, the judge issued his decision in                                                                
1985 that there was anticipated overcrowding.  The judge set                                                                    
certain population limits, based on expert testimony from both                                                                  
parties at the trial.  Although there are general standards that                                                                
the experts ordinarily apply, it isn't an exact science.  Square                                                                
footage standards aren't hard and fast, and also considered must be                                                             
the condition of the facilities, including plumbing, lighting and                                                               
ventilation, as well as the training level of the staff and the                                                                 
other programs that are available for inmates.  The decision is                                                                 
highly subjective.  In this case, after the judge considered those                                                              
factors and decided upon population levels, after a time the state                                                              
got back into negotiations with the plaintiffs, who actually agreed                                                             
to higher population limits than the judge had decided upon.                                                                    
MR. GUANELI pointed out that it is often difficult to compare                                                                   
conditions in Alaska with those in other states.  Although many                                                                 
states have received federal funding and built new prisons, many                                                                
others have had their prison systems challenged based upon their                                                                
antiquated, decrepit or dangerous facilities, or upon dangerous                                                                 
levels of overcrowding and conditions far worse than Alaska's.                                                                  
MR. GUANELI expressed belief that as the DOC gets more                                                                          
sophisticated in classifying inmates - as far as who needs maximum                                                              
security and who needs minimum security, for example, and to                                                                    
segregate certain inmates from others - the better they will be                                                                 
able to control the populations and handle higher populations                                                                   
levels in their facilities.  That factor also changes over time, he                                                             
said, and the DOC has found an ability to handle a few more inmates                                                             
than they believed they could handle several years ago.  Because it                                                             
is a moving target, the utmost flexibility is needed to run the                                                                 
system, which legislation like HB 214 would provide.                                                                            
Number 1476                                                                                                                     
CHAIRMAN KOTT asked if there was a nationwide movement at the time                                                              
of Cleary regarding challenges to prison systems.                                                                               
MR. GUANELI replied that this has been going on for 25 years.                                                                   
Beginning in the mid-1970s, prison systems, particularly in the                                                                 
South and East, were hit with a large number of challenges.  Even                                                               
now state systems, under the federal counterpart to this type of                                                                
legislation, are getting out of consent decrees.  "But there are                                                                
other systems, Texas being one that is continually being hit with                                                               
more and more lawsuits because they continue to run their systems                                                               
in really deplorable ways," he told members.  "I'm not saying all                                                               
of their facilities are, but certain of them are, and the judges                                                                
... keep hammering them.  At least ... under the federal                                                                        
legislation now, a judge hammers the state of Texas, ... they've                                                                
got two years to kind of get their act in shape, and then they can                                                              
get out of the judgment if things are okay after two years.  At                                                                 
least they aren't burdened with that kind of order in perpetuity,                                                               
which has been the case in the past."                                                                                           
Number 1541                                                                                                                     
REPRESENTATIVE KERTTULA asked what the consent decree on population                                                             
was, and whether Mr. Guaneli has a rough breakdown on that.                                                                     
MR. GUANELI explained that it is set out in the Cleary judgment                                                                 
itself, and there have been subsequent modifications.  As                                                                       
facilities change slightly, the population limits change.  They                                                                 
vary by facility, setting out both a maximum operating capacity and                                                             
an emergency capacity.  The department is required to do certain                                                                
things when the population hits each of those levels; after a                                                                   
certain level is hit, and after a certain number of facilities hit                                                              
that level, then the fines start to be imposed.  Mr. Guaneli                                                                    
pointed out that the fines are no longer being imposed, however,                                                                
because the legislature gave money to transport prisoners to                                                                    
Arizona, which reduced the population in in-state facilities.  But                                                              
it is conceivable that could happen again.                                                                                      
Number 1596                                                                                                                     
REPRESENTATIVE KERTTULA requested numbers or examples from the time                                                             
when the state was fined for overcrowding.                                                                                      
MR. GUANELI responded that although he couldn't provide that                                                                    
immediately, he certainly could provide a large amount of data on                                                               
that, perhaps focusing on a specific facility.  He noted that the                                                               
department had kept excellent records about how much, as a                                                                      
percentage, they were over the capacities on a daily basis for the                                                              
several years; all that is available.                                                                                           
Number 1637                                                                                                                     
REPRESENTATIVE ROKEBERG referred to Representative Mulder's mention                                                             
of a resolution asking the Department of Law to bring an action on                                                              
this issue.  He asked what the direction was, and whether they had                                                              
heard from the attorney general about that.                                                                                     
MR. GUANELI responded that a specific provision in the Cleary                                                                   
agreement itself says that if conditions have significantly                                                                     
changed, the state can go back and ask the court to modify the                                                                  
judgment; it is the same as the provision under Rule 60 of the                                                                  
Alaska Rules of Civil Procedures, which allows parties to go back                                                               
and ask courts to change their judgments.  A body of case law has                                                               
arisen around that rule, giving judges direction as to how to                                                                   
interpret and apply it, and in what circumstances.  Mr. Guaneli                                                                 
     It was our judgment that we would not prevail if we brought                                                                
     that action too prematurely. ... Once enough prisoners had                                                                 
     been sent to the Arizona, and the population level in the                                                                  
     state had been lowered, we were hoping to bring that kind of                                                               
     action under the current court rules, and give the judge an                                                                
     opportunity to modify the order.                                                                                           
     Unfortunately, what has happened is the court and the court                                                                
     monitor now believe that the Arizona facility falls under                                                                  
     Cleary, as well.  They think that there are problems at that                                                               
     facility.  And so, again, we don't find ourselves in the kind                                                              
     of good litigation posture to bring that kind of motion. ...                                                               
     We just don't think we're going to win, and we don't think the                                                             
     court is going to allow us to keep bringing that motion time                                                               
     and time again.  We want to put ourselves in the best position                                                             
     to do that. ... We haven't had the situation where we think we                                                             
     can win that, and ... we don't want to try unless we think we                                                              
     can win.                                                                                                                   
MR. GUANELI said that kind of situation has faced a number of                                                                   
states, which therefore are turning to this kind of legislation to                                                              
force the courts to look at whether there are current                                                                           
unconstitutional conditions that justify continuing such an order.                                                              
Number 1758                                                                                                                     
REPRESENTATIVE ROKEBERG referred to his own conversation with the                                                               
warden at "CCA," in particular, saying one of the biggest concerns                                                              
was the requirement for certain specific due process steps before                                                               
punishing an offending prisoner.  He asked Mr. Guaneli to explain                                                               
that issue and what the Cleary settlement required the people                                                                   
on-site to do.                                                                                                                  
MR. GUANELI responded that in 1975, the Alaska Supreme Court issued                                                             
an opinion that established certain requirements for the DOC to go                                                              
through in order to discipline a prisoner.  Those requirements                                                                  
differ from those applied by courts in other states or the U.S.                                                                 
Supreme Court.  The DOC adjusted to that precedent and now, after                                                               
25 years, rather takes it in stride.  However, it was new for the                                                               
private prison in Arizona, which hasn't similarly taken it in                                                                   
stride.  Mr. Guaneli believes that it is a source of tension.  He                                                               
pointed out that it was not specifically in Cleary.                                                                             
REPRESENTATIVE ROKEBERG suggested it is subsumed under it, though,                                                              
because it differs from what happens nationally.  He asked Mr.                                                                  
Guaneli to address the fact that Cleary wasn't assumed to be                                                                    
enforced in private facilities, and to explain how the change came                                                              
MR. GUANELI pointed out that the Cleary agreement itself, which is                                                              
1/2-inch thick, contains specific definitions of what facilities it                                                             
applies to.  He stated:                                                                                                         
     We believe that the wording in those definitions was pretty                                                                
     crystal-clear that it would not apply to a facility that's                                                                 
     operated by somebody else.  It doesn't apply to halfway                                                                    
     houses, it doesn't apply to community jails not operated by                                                                
     the Department of Corrections, and it wouldn't apply to a                                                                  
     private prison.                                                                                                            
     The judge, however, ruled - after the plaintiffs asked her to                                                              
     rule this way - that, in essence, it was unfair to, quote,                                                                 
     deprive a prisoner of their rights under the Cleary settlement                                                             
     by involuntarily transferring them to a prison outside the                                                                 
     state of Alaska, where Cleary might not apply.  The judge                                                                  
     thought that that was unfair, thought that perhaps there was                                                               
     some ambiguity in the definition, and therefore applied the                                                                
     decision to ... the facility in Arizona. ...                                                                               
     It was not a result that we ever anticipated.  We always                                                                   
     thought that if it was another facility, operated by someone                                                               
     else, that the Cleary settlement would not apply. ...  But, in                                                             
     fact, it does at the present time.                                                                                         
Number 1921                                                                                                                     
CHAIRMAN KOTT asked whether that is just for those who were                                                                     
involuntarily transferred.                                                                                                      
MR. GUANELI said he believes the voluntariness was one factor that                                                              
the judge looked at in determining that Cleary applies.  However,                                                               
it applies to any Alaska prisoner in the entire facility, whether                                                               
or not an individual volunteered to go.  At the time of transfer,                                                               
most of the inmates didn't want to go, Mr. Guaneli pointed out,                                                                 
although he believes that many of them have found that it isn't                                                                 
Number 1948                                                                                                                     
REPRESENTATIVE MULDER asked Mr. Guaneli what he estimates it costs                                                              
the Department of Law to try to determine compliance with Cleary.                                                               
MR. GUANELI replied that since the time of trial, about 12 years,                                                               
the department has probably had the equivalent of one full-time                                                                 
attorney working on nothing but Cleary, costing several hundred                                                                 
thousand dollars in state salaries.  For the trial itself, the DOC                                                              
hired outside counsel from San Francisco to work with the                                                                       
Department of Law, costing another few hundred thousand dollars.                                                                
He emphasized the further costs to the DOC, which has people at                                                                 
every facility who are specifically designated to determine whether                                                             
there is compliance with the agreement, and who collect and submit                                                              
records, an enormous undertaking.                                                                                               
Number 2007                                                                                                                     
REPRESENTATIVE KERTTULA referred to page 3, lines 8 through 10,                                                                 
which read:  "Preliminary injunctive relief shall automatically                                                                 
expire 90 days after the entry of the order unless the court orders                                                             
final relief in the civil action before the expiration of the                                                                   
90-day period."  She asked if Mr. Guaneli could provide any other                                                               
examples where preliminary injunctions work that way, noting that                                                               
she herself is more used to natural resource cases, in which an                                                                 
injunction stays in effect throughout the case unless the parties                                                               
come back in or something has changed.                                                                                          
MR. GUANELI replied that he doesn't know that there is another                                                                  
example under state law, although there is certainly a provision                                                                
under the federal PLRA.  He said it goes back to the underlying                                                                 
theory of the bill that courts shouldn't enter orders against state                                                             
prison systems unless there are unconstitutional conditions.  He                                                                
pointed out that the standards for getting a preliminary injunction                                                             
or a temporary restraining order, in contrast, don't require proof                                                              
of an unconstitutional condition, just that there are serious and                                                               
substantial questions.  He suggested that in this type of case, as                                                              
long as the case wasn't frivolous, there would likely be some kind                                                              
of injunction, which ought to be temporary, not lasting more than                                                               
90 days unless it can be proved that there is something                                                                         
unconstitutional, in which case the judge ought to rule.                                                                        
Number 2080                                                                                                                     
REPRESENTATIVE KERTTULA asked what happens with the prospective                                                                 
relief section, which is right under that in the bill.  She asked                                                               
whether it is  correct that prospective relief has to be only for                                                               
a current violation.                                                                                                            
MR. GUANELI affirmed that the legislation would require the judge                                                               
to find some current violation of a state or federal right.  He                                                                 
clarified that when he says "unconstitutional conditions," the                                                                  
standard in here is a state or federal right, which includes a                                                                  
violation of state law.  Therefore, violation of a statute would                                                                
also justify relief.  The bill prevents the type of situation that                                                              
occurred in 1985, when the judge said Alaska had one of the safest,                                                             
most humane systems in the country but nonetheless entered an order                                                             
based on what he believed was going to happen.                                                                                  
Number 2121                                                                                                                     
REPRESENTATIVE KERTTULA asked what happens if it is known that a                                                                
situation will occur one week hence.  She then suggested that                                                                   
perhaps the section about a consent order or private settlement                                                                 
agreement overcomes that.                                                                                                       
MR. GUANELI agreed that there is a provision for a private                                                                      
settlement, where the parties get together and themselves agree,                                                                
although it is not enforceable in court.  He explained that the                                                                 
third amendment proposed by the department, with which the sponsor                                                              
had not expressed agreement, would allow the state to continue to                                                               
enter into consent decrees even with no finding of an                                                                           
unconstitutional condition.  This is simply a matter of litigation                                                              
tactics, he said.  The federal PLRA doesn't allow consent decrees,                                                              
as it doesn't allow the parties to get together and have the judge                                                              
order something, unless the judge makes an absolute finding of an                                                               
unconstitutional condition.  The federal PLRA was strongly                                                                      
supported by states nationwide, except for Texas, where they said,                                                              
"You're tying our hands.  We want to be able to go in there and                                                                 
negotiate, because we think we can get a better deal from the                                                                   
plaintiffs' attorneys than from the judge."                                                                                     
MR. GUANELI said that has really come back to haunt the state of                                                                
Texas, where they are constantly in court because these issues                                                                  
can't be settled out of court through a consent decree.  The one                                                                
advantage with HB 214 that after two years the consent decree can                                                               
be terminated, he pointed out, if the state goes in and if no                                                                   
unconstitutional conditions can be proved.  It is, therefore, a                                                                 
two-year consent decree rather than a 12-year consent decree, as                                                                
Cleary has been.  That is Amendment 3, he concluded, which is just                                                              
a matter of litigation tactics.                                                                                                 
Number 2255                                                                                                                     
REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1, which                                                               
reads as follows:                                                                                                               
          1.  Page 3, lines 20-22:  Replace the sentence beginning                                                              
     with "prospective relief ..." with the following:                                                                          
     "Prospective relief must be modified upon the motion of a                                                                  
     party whenever, and to the extent, the findings required by                                                                
     this section no longer apply to one or more provisions of the                                                              
     prospective relief then in effect."                                                                                        
          2.  Page 3, line 26:  Insert the words "modify or"                                                                    
     between "to" and "terminate."                                                                                              
CHAIRMAN KOTT objected for discussion purposes.                                                                                 
Number 2262                                                                                                                     
MR. GUANELI explained that Amendment 1 would set a more certain                                                                 
standard for courts to apply when the state is moving for partial                                                               
termination or modification of a consent decree, rather than                                                                    
termination of the entire decree.  The standard on page 3, lines                                                                
20-22, can be tightened up a little, and that is what the amendment                                                             
does.  He noted that the Cleary settlement is a hundred pages long,                                                             
and the state believes itself to be in compliance with all but the                                                              
population caps.  If HB 214 had been in effect two years ago, he                                                                
added, the state could have gone in and had all of the Cleary                                                                   
settlement - perhaps except for the population caps - set aside.                                                                
Number 2310                                                                                                                     
REPRESENTATIVE CROFT asked about the legal distinction between the                                                              
original wording and the newly proposed language.                                                                               
MR. GUANELI explained that the department felt that the wording "no                                                             
longer justify the imposition" perhaps could be interpreted to                                                                  
allow an exercise of more judicial discretion than is justified.                                                                
He said he believes that the entire subsection requires a judge to                                                              
find certain definite things and then allows the judge to ask                                                                   
whether those justify the imposition or not.  The question is:  Do                                                              
the findings apply to these provisions, or don't they?  If they do                                                              
apply, then the order can stay in effect.  If they don't apply,                                                                 
however, then that part of the order must go.                                                                                   
REPRESENTATIVE CROFT expressed his understanding that those are the                                                             
four conditions in subsection (a).                                                                                              
MR. GUANELI affirmed that.  He suggested it is a fairly minor                                                                   
REPRESENTATIVE CROFT reviewed those four conditions, then said he                                                               
still has a hard time understanding the distinction.                                                                            
Number 2397                                                                                                                     
REPRESENTATIVE KERTTULA commented that she was having the same                                                                  
trouble, although she thinks an argument could be made either way                                                               
as to whether "apply" or "justify" is broader.                                                                                  
Number 2409                                                                                                                     
CHAIRMAN KOTT withdrew his objection and asked if there was any                                                                 
further objection.  There being none, Amendment 1 was adopted.                                                                  
Number 2416                                                                                                                     
REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 2, which                                                               
reads as follows:                                                                                                               
     Page 4, line 18:  replace the word "prison" with "correctional                                                             
CHAIRMAN KOTT objected for discussion purposes.                                                                                 
MR. GUANELI told members it was felt that this legislation should                                                               
apply broadly to all correctional facilities.  Whereas the term                                                                 
"prison" tends to be interpreted as a larger facility holding                                                                   
longer-term prisoners, broadening it to "correctional facilities"                                                               
would allow it to apply to community jails, for example, providing                                                              
the benefit of this legislation to all facilities.                                                                              
Number 2450                                                                                                                     
REPRESENTATIVE CROFT asked whether the word "prison" is used                                                                    
elsewhere in the bill.                                                                                                          
TAPE 99-45, SIDE B                                                                                                              
Number 0001                                                                                                                     
MR. GUANELI noted that the phrase "civil action with respect to                                                                 
prison conditions" probably rolls off the tongue easier than does                                                               
"civil action with respect to conditions in correctional                                                                        
facilities," which is why he believes it was used there.  However,                                                              
when they actually go in and define it, the broader term                                                                        
"correctional facilities" is the appropriate language.                                                                          
Number 0019                                                                                                                     
REPRESENTATIVE MURKOWSKI pointed out that whereas the title says                                                                
"litigation involving correctional facilities," AS 09.19.200 on                                                                 
page 2 is titled "Prison litigation."                                                                                           
MR. GUANELI responded that the titles of legislation have no                                                                    
substantive impact.  He indicated there was probably a feeling that                                                             
a more commonly used term is better for titles, whereas in                                                                      
substantive definitions the more specific would be preferable.                                                                  
CHAIRMAN KOTT asked if Mr. Guaneli was satisfied with the term                                                                  
"prison litigation" used in AS 09.19.200.                                                                                       
MR. GUANELI affirmed that, indicating the department is also                                                                    
satisfied with the other references.                                                                                            
Number 0065                                                                                                                     
REPRESENTATIVE ROKEBERG recounted that in five years on the budget                                                              
subcommittee, he doesn't recall ever talking about "prisons."  He                                                               
said the term of art in the state seems to be "correctional                                                                     
facilities," and he wonders if there is a statutory distinction                                                                 
between the two.                                                                                                                
MR. GUANELI responded that he believes "correctional facilities" is                                                             
the broadest term in the statutes, particularly in Title 33,                                                                    
relating to the DOC.  He clarified that he isn't suggesting that                                                                
this will apply to halfway houses that are run by private                                                                       
individuals; for those, their contracts with the state will largely                                                             
determine how they are handled.                                                                                                 
Number 0112                                                                                                                     
REPRESENTATIVE ROKEBERG asked whether "prison" is defined under                                                                 
CHAIRMAN KOTT suggested that Mr. Luckhaupt could help with that.                                                                
He said he had the same question, noting that the McGinnis case                                                                 
talks about the administration of the "state prison system."  He                                                                
asked if that is the correct term of art in discussing jails.                                                                   
Number 0132                                                                                                                     
MR. GUANELI pointed out that "prison" in other states usually                                                                   
applies to the penitentiaries, whereas the jail system is separate.                                                             
"Correctional facilities" applies to a broader range.  He asked for                                                             
confirmation by Mr. Luckhaupt.                                                                                                  
Number 0143                                                                                                                     
GERALD LUCKHAUPT, Attorney, Legislative Legal and Research                                                                      
Services, Legislative Affairs Agency, clarified that Alaska has no                                                              
definition of "prison" in statutes.  "Correctional facilities" is                                                               
used in Title 33 in reference to Alaska's correctional facilities.                                                              
"Correctional facility" means any place where the commissioner                                                                  
decides to put anybody, he said, and "state correctional facility"                                                              
means any correctional facility run by the state.  He told members                                                              
his own choice of words regarding prison litigation was modeled                                                                 
basically after the federal Act, which talks about prison                                                                       
litigation; that applies both to places normally thought of as                                                                  
prisons, where people are serving sentences, and to jails.  No                                                                  
distinction is made in the federal Act between a prison and a jail.                                                             
He added, "In Alaska, we don't make any distinction, but prison                                                                 
just seems to sound a little better to the public."                                                                             
MR. LUCKHAUPT pointed out that the title or short title of any                                                                  
section isn't law, by statute.  Only the language of each section                                                               
of statute itself is law.  Although the titles can be changed at                                                                
any time, the Revisor of Statutes has the ultimate authority, under                                                             
the statutes, to make that choice.                                                                                              
Number 0228                                                                                                                     
CHAIRMAN KOTT asked if the use of "state prison system" in the bill                                                             
correlates to the decision in McGinnis v. Stevens.                                                                              
MR. LUCKHAUPT noted that in the 1960s and 1970s, there were                                                                     
"prisons" in Alaska.  "We then entered the enlightened era of                                                                   
deciding we didn't have prisons anymore, but we had correctional                                                                
facilities," he noted.  Mr. Luckhaupt pointed out that many states                                                              
now use the term "correctional facilities" rather than "prisons,"                                                               
and "wardens" have become "superintendents."                                                                                    
CHAIRMAN KOTT asked if there is a distinction between "prison                                                                   
conditions" and "jail conditions."                                                                                              
MR. LUCKHAUPT said he doesn't believe the prisoners think there is                                                              
a difference.  [There was laughter.]                                                                                            
Number 0290                                                                                                                     
REPRESENTATIVE ROKEBERG said the definition under AS 33.30.901 of                                                               
a correctional facility says a prison, jail, camp, farm, halfway                                                                
house, group home or other placement designated by the commissioner                                                             
for custody, care or discipline of prisoners.  He expressed concern                                                             
that by leaving "prison" in there, a distinction will be assumed                                                                
regarding the applicability of the new statute.                                                                                 
MR. GUANELI said that was the specific reason for Amendment 2.  "We                                                             
think that making that change in the definition, only, ... so that                                                              
the phrase, 'civil action with respect to prison conditions,'                                                                   
applies broadly to all correctional facilities, ... that that's the                                                             
appropriate place to make that change," he stated.  "And it's not                                                               
necessary to make it throughout the rest of the bill.  We certainly                                                             
could, though."                                                                                                                 
REPRESENTATIVE ROKEBERG proposed defining "prison" for the purpose                                                              
of this section.                                                                                                                
Number 0336                                                                                                                     
MR. LUCKHAUPT suggested just changing it in the other two places,                                                               
then, and doing a definition in the committee substitute.  He                                                                   
restated that it makes no substantive difference.                                                                               
Number 0405                                                                                                                     
REPRESENTATIVE KERTTULA said she sees somewhat the same issue with                                                              
the definition of "prisoner" in Title 33, which also leaves out                                                                 
"correctional facility" and just includes "official detention."                                                                 
She said she doesn't know if there is a need to keep the two                                                                    
parallel, but she believes they should look at it and be certain.                                                               
Number 0421                                                                                                                     
MR. LUCKHAUPT explained that the definition of "prisoner" in AS                                                                 
33.30 had been expanded for this, as a result of discussions                                                                    
between himself and Michael Stark of the Department of Law, to                                                                  
ensure that also covered under this Act are prisoners being held                                                                
for federal or other jurisdictions.  They had decided to add in                                                                 
anyone who is confined in a correctional facility.  Also in the                                                                 
definition of AS 33.30, not included are prisoners held under the                                                               
authority of municipal law.  Mr. Luckhaupt stated, "We added that                                                               
in here to make sure that those people are covered by this Act, and                                                             
any lawsuits they bring - and potential consent decrees that result                                                             
therefrom - would be covered by this Act."                                                                                      
MR. GUANELI agreed that the intent, which he believes is being                                                                  
accomplished, is to expand both of those definitions, so that it                                                                
covers as many facilities and prisoners in those facilities as                                                                  
possible.  He acknowledged that it gets a bit complicated, though.                                                              
Number 0513                                                                                                                     
CHAIRMAN KOTT said he understands and appreciates the intent, but                                                               
he isn't as confident that the intent has been accomplished.  He                                                                
asked whether Representative Rokeberg was satisfied with the                                                                    
Number 0524                                                                                                                     
REPRESENTATIVE ROKEBERG restated that the term "correctional                                                                    
facility" is used as a broad-brush term around the corrections                                                                  
subcommittee.  He expressed the desire to not cause confusion but                                                               
said he would rely on Mr. Luckhaupt's judgment.                                                                                 
Number 0557                                                                                                                     
MR. LUCKHAUPT suggested that the committee just tell him to replace                                                             
"prison" in the two places it appears with "correctional facility."                                                             
As Mr. Guaneli had said, it would also be changing the term being                                                               
defined to read, "litigation involving conditions in correctional                                                               
facilities," for example.  He said now that he thinks about it,                                                                 
that sounds better.                                                                                                             
CHAIRMAN KOTT said he was convinced, agreeing that it probably                                                                  
clears up ambiguity.                                                                                                            
Number 0594                                                                                                                     
REPRESENTATIVE ROKEBERG made a motion to adopt a conceptual                                                                     
amendment "to accede to the definition suggestions of legislative                                                               
CHAIRMAN KOTT noted that they were changing "prisons" to                                                                        
"correctional facilities" and doing the corresponding change                                                                    
regarding conditions.  He withdrew his objection to Amendment 2,                                                                
then specified that the conceptual amendment is inclusive of                                                                    
Amendment 2, broadening it to clarify that nobody is slipping by.                                                               
There being no objection, Chairman Kott announced that [Conceptual]                                                             
Amendment 2 was adopted.                                                                                                        
Number 0633                                                                                                                     
REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 3, which                                                               
reads as follows:                                                                                                               
          1.  Page 2, line 15:  Insert "and (e)" after "(b)"                                                                    
          2.  Page 4, line 3:  Insert the following at the                                                                      
     beginning of this subsection:  "Notwithstanding (a) of this                                                                
     section, in a civil action with respect to prison conditions,                                                              
     a court may order prospective relief as provided in a consent                                                              
     decree without complying with (a) of this section.  In                                                                     
          3.  Page 4, line 3:  change the P in "Parties" to a lower                                                             
     case p.                                                                                                                    
CHAIRMAN KOTT objected for discussion purposes.                                                                                 
MR. GUANELI referred to his earlier testimony and said the intent                                                               
is to allow the state to enter into consent decrees when it can                                                                 
predict that it would lose in court, to avoid being in the position                                                             
of the state of Texas, where they are forced to go in and lose                                                                  
these cases in court.                                                                                                           
Number 0666                                                                                                                     
REPRESENTATIVE MULDER asked Mr. Guaneli if the national model                                                                   
includes this language.                                                                                                         
MR. GUANELI said no, which is why he had explained that the                                                                     
representatives from the Texas corrections department had objected                                                              
to that at the federal level.  He added, "It got enacted anyway,                                                                
without this provision, and I think they're regretting that part of                                                             
it, at least."                                                                                                                  
REPRESENTATIVE MULDER explained that he is reluctant to adopt it                                                                
without additional sideboards.  He expressed concern about getting                                                              
into the same situation as under Cleary.  The Department of Law                                                                 
could agree to a consent decree, for example, and there would be                                                                
the two-year time frame, without legislative authority or approval.                                                             
The legislature could want to get out of it, but the department                                                                 
could disagree.  With absolute time frames, it is a little more                                                                 
clear and direct, he said, adding that he is trying to think of a                                                               
middle ground.                                                                                                                  
Number 0745                                                                                                                     
MR. GUANELI said he understands the concern and hopes his                                                                       
explanation would make the sponsor feel better.  He then explained                                                              
that HB 214 is structured so that any court order entered is                                                                    
subject to the two-year limitation, after which the state can move                                                              
to terminate the order; that is regardless of whether the order                                                                 
follows a trial in a contested case, or, if Amendment 3 is adopted,                                                             
results from a consent decree.  If there really were such a                                                                     
disagreement between the legislative and executive branches over                                                                
moving to amend, nothing in HB 214, without the amendment, would                                                                
force the state to move to terminate the court order.                                                                           
MR. GUANELI said he thinks the difference, however, is that here                                                                
there is a mechanism to go in and, with some degree of certainty,                                                               
get the court order terminated.  Under current law, that isn't the                                                              
case, which is why the state has not proceeded in spite of the                                                                  
legislature's request to do so.  He emphasized that the landscape                                                               
changes significantly under this bill.  If the legislature passed                                                               
a resolution asking the attorney general to move to terminate, for                                                              
example, but the attorney general did not without good grounds, Mr.                                                             
Guaneli said it seems that would present the legislature with an                                                                
opportunity to adjust its funding decisions in light of that.  He                                                               
believes that would be acting in good faith, just as the                                                                        
legislature has acted in good faith in responding to the Cleary                                                                 
order, coming up with the money to send prisoners to Arizona to                                                                 
lower the in-state population.  This completely changes the ground                                                              
rules for this type of litigation, which is something the House                                                                 
Finance Standing Committee would have to take into account, he                                                                  
Number 0874                                                                                                                     
REPRESENTATIVE CROFT indicated that although a consent decree would                                                             
still be subject to the same restrictions, this essentially allows                                                              
one to try to get a better deal without going to court.                                                                         
MR. GUANELI affirmed that.                                                                                                      
Number 0895                                                                                                                     
REPRESENTATIVE KERTTULA suggested it would also solve the problem                                                               
where there is no current violation, but it is known that in two                                                                
days, there will be a violation.  She added, "And right now, under                                                              
the statute, as it would be rewritten, the judge couldn't make the                                                              
order.  But the parties could say, 'We're not going to waste the                                                                
time, and energy and money to come back to court.'"  She asked                                                                  
whether that is correct, then added, "So, you really could end up                                                               
having to do the whole thing all over again, for no good reason."                                                               
MR. LUCKHAUPT said that has been one dispute between the                                                                        
legislature and the executive branch about Cleary over the years,                                                               
that the executive branch saw they were getting a little better                                                                 
deal, but the legislature, the first few years, didn't care because                                                             
there was ample money.  In the last nine years he has been in this                                                              
job, there has been a constant dispute about how the executive                                                                  
branch entered into an agreement without legislative involvement,                                                               
but the legislature is then expected to fund everything in that                                                                 
agreement, even though some items aren't of a constitutional                                                                    
dimension.  That is something which parties might agree to give up                                                              
in a settlement or in a consent decree, he noted.                                                                               
MR. LUCKHAUPT pointed out that while the court system cannot                                                                    
require the legislature to appropriate those funds, the courts                                                                  
could fine the legislature or executive branch for not providing                                                                
that level of services.  For a number of years, the legislature                                                                 
chose not to pay those fines, claiming the right to appropriate.                                                                
Therefore, there is constant friction caused by consent decrees.                                                                
MR. LUCKHAUPT informed members that in the past, he had                                                                         
participated in consent decrees in another state.  He said he can                                                               
understand the concerns of Mr. Guaneli and the department that                                                                  
there are cases where litigation choices are made, deciding it may                                                              
be cheaper in the long run to make an agreement or settle a case.                                                               
The way the amendment is written now, it is open-ended.  Although                                                               
a motion could be filed to terminate an order two years after                                                                   
entering into a consent decree, the parties could choose not to,                                                                
either, and the legislature would still be bound the same way.                                                                  
MR. LUCKHAUPT noted that the federal litigation doesn't include                                                                 
this.  The state of Texas, to his understanding, had objected to                                                                
some portions, and other states didn't want any consent decree                                                                  
language in there or to allow any consent decrees that did not meet                                                             
this requirement.  That was because federal courts, in some cases,                                                              
were seemingly pressuring state attorneys into entering into                                                                    
certain settlements, Mr. Luckhaupt told members, when it didn't                                                                 
appear to the states that there was a present constitutional                                                                    
violation; that was one of the issues the state appealed on in the                                                              
original Cleary case.                                                                                                           
MR. LUCKHAUPT suggested that the state was able to obtain a better                                                              
deal in that case because the judge's decision to impose injunctive                                                             
relief was potentially going to be overturned by the supreme court.                                                             
He further suggested that a remedy would be having the ability to                                                               
enter into consent decrees but being bound by a time limit, so they                                                             
don't go on forever without the legislature's involvement.  He                                                                  
noted that Mr. Guaneli had suggested that the legislature's remedy                                                              
would be to basically gut the funding for the Department of Law or                                                              
the Department of Corrections.  "And those things usually don't get                                                             
anybody anywhere, on either side," he added.                                                                                    
Number 1203                                                                                                                     
REPRESENTATIVE MULDER responded that Mr. Luckhaupt had expressed                                                                
his own concern.  He stated that the purpose of this legislation                                                                
was to try to limit, in time and scope, consent decrees and court                                                               
orders.  "And I was just concerned about putting us back into that                                                              
same position again," he stated.                                                                                                
Number 1292                                                                                                                     
REPRESENTATIVE ROKEBERG stated his understanding that a consent                                                                 
decree would have to have the agreement of both the plaintiff and                                                               
the administration, in this case.  He asked whether there is any                                                                
way to inject the legislature here without it becoming a massive                                                                
burden of decision making.                                                                                                      
Number 1329                                                                                                                     
REPRESENTATIVE MULDER surmised that the separation of powers would                                                              
prohibit that from being entered into.  "This is one of those                                                                   
'Really, trust me' issues," he added.                                                                                           
REPRESENTATIVE KERTTULA noted that it would be, "Trust me for two                                                               
Number 1344                                                                                                                     
REPRESENTATIVE CROFT asked how this would keep going.  He asked if                                                              
there would be separate consent decrees, noting that it says it                                                                 
"shall be terminated upon the motion of the defendant unless the                                                                
court finds that there exists".  He stated, "You can put the same                                                               
language into this section (e), that is, any consent decree expires                                                             
after two years, unless the court finds that there continue to                                                                  
exist violations of law.  They could sunset, in effect, unless the                                                              
court stepped in and said ... there are existing violations."                                                                   
Number 1378                                                                                                                     
MR. GUANELI asked whether Representative Croft's idea is that it                                                                
would automatically terminate after two years, even if the state                                                                
didn't affirmatively move for it, unless the plaintiffs could come                                                              
in and show the unconstitutional violations.  He said he sort of                                                                
likes that idea.                                                                                                                
REPRESENTATIVE MULDER responded that he likes it, too.  He                                                                      
indicated it provides the sideboards he was looking for.                                                                        
REPRESENTATIVE CROFT affirmed that it was the idea, although he                                                                 
expressed ambiguity about it.                                                                                                   
REPRESENTATIVE MULDER said that there has to be some trigger                                                                    
mechanism.  He agreed with Representative Croft's interjection that                                                             
the court review it again.                                                                                                      
REPRESENTATIVE CROFT agreed to work on that.                                                                                    
CHAIRMAN KOTT stated that he did not believe that would be a                                                                    
substantial amendment to get to that end.  He noted that HB 214 has                                                             
another committee of referral.  He inquired as to the wishes of the                                                             
REPRESENTATIVE CROFT expressed his discomfort in sending a                                                                      
judiciary issue to the capable House Finance Standing Committee.                                                                
CHAIRMAN KOTT commented that the committee could address this                                                                   
REPRESENTATIVE MULDER pointed out that the only outstanding issue                                                               
is the fiscal note, which is currently indeterminate.  He indicated                                                             
that money could actually be saved with this.                                                                                   
CHAIRMAN KOTT agreed.  Chairman Kott withdrew his objection to                                                                  
Amendment 3 and requested that Amendment 3 be withdrawn.                                                                        
REPRESENTATIVE ROKEBERG withdrew the motion to adopt Amendment 3.                                                               
CHAIRMAN KOTT announced that HB 214 as amended would be held to                                                                 
tomorrow, April 30, 1999, in order for the sponsor and the                                                                      
committee to work on this legislation.  He requested that Mr.                                                                   
Luckhaupt incorporate the language into a clean committee                                                                       
substitute with the other two noted amendments.  [HB 214 was held                                                               
CHAIRMAN KOTT called for a brief at-ease at 4:34 p.m. and called                                                                
the meeting back to order at 4:40 p.m.                                                                                          
HB 135 - POLICE USE OF EAVESDROPPING DEVICES                                                                                    
CHAIRMAN KOTT announced that the next order of business would be                                                                
House Bill 135, "An Act relating to use of eavesdropping and                                                                    
recording devices by peace officers."                                                                                           
Number 1679                                                                                                                     
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed                                                                     
committee substitute for HB 135, version 1-LS0427\H, Luckhaupt,                                                                 
4/28/99, as a work draft.  There being no objection, it was so                                                                  
CHAIRMAN KOTT explained that two changes were made to Version H.                                                                
The first change is the removal of a subsection that dealt with the                                                             
making of an audio recording in conjunction with a video recording                                                              
of a traffic or other law enforcement control, at the request of                                                                
Representative Kerttula.  The second change is the addition of a                                                                
"FINDINGS AND INTENT" section, at the request of Anne D. Carpeneti                                                              
from the Department of Law.                                                                                                     
Number 1750                                                                                                                     
REPRESENTATIVE ROKEBERG made a motion to move the proposed                                                                      
committee substitute for HB 135, version 1-LS0427\H, Luckhaupt,                                                                 
4/28/99, from the committee with individual recommendations and the                                                             
attached fiscal note(s).  There being no objection, CSHB 135(JUD)                                                               
was so moved from the House Judiciary Standing Committee.                                                                       
HJR 6 - CONST. AM:  EDUCATION FUNDING                                                                                           
CHAIRMAN KOTT announced the next order of business is House Joint                                                               
Resolution 6, Proposing amendments to the Constitution of the State                                                             
of Alaska relating to state aid for education.                                                                                  
Number 1926                                                                                                                     
CHAIRMAN KOTT noted that he has provided a copy of the comments                                                                 
from the law firm Josephson and Associates regarding the                                                                        
constitutionality of the proposed constitutional amendment.  He                                                                 
found the comments somewhat interesting, but he doesn't believe                                                                 
that if this amendment was adopted it would not be a violation of                                                               
church and state separation provisions since similar vouchers have                                                              
been incorporated at the municipal level around the country.                                                                    
Number 1980                                                                                                                     
REPRESENTATIVE ROKEBERG made a motion to move HJR 6 from the                                                                    
committee with individual recommendations and the attached fiscal                                                               
CHAIRMAN KOTT noted that there is a $1,500 fiscal note.                                                                         
REPRESENTATIVE CROFT objected.  The $1,500 fiscal note does not                                                                 
come close to reflecting the cost of such a program to the school                                                               
Number 2060                                                                                                                     
CHAIRMAN KOTT echoed the concern of Representative Croft.  However,                                                             
from a legal standpoint he doesn't find anything ... From a public                                                              
policy standpoint he has problems with it, but it clearly meets the                                                             
intent of the constitution.  It would require a lot of convincing,                                                              
however, before he would vote for it on the House floor.                                                                        
Number 2099                                                                                                                     
REPRESENTATIVE ROKEBERG stated that he is in favor of the concept,                                                              
but how it is accomplished and carried out is a huge issue.                                                                     
Nevertheless, the House Judiciary Standing Committee has done its                                                               
job and has met its responsibilities.                                                                                           
Number 2133                                                                                                                     
CHAIRMAN KOTT stated there was a lot of discussion in regards to                                                                
the funding, the provisions of any subsequent legislation, and the                                                              
parameters placed on private institutions.                                                                                      
Number 2164                                                                                                                     
REPRESENTATIVE ROKEBERG stated that it would be relatively                                                                      
impossible for the electorate to consider the amendment without                                                                 
seeing an outline or design of the statutory backup in order to see                                                             
the ramifications.                                                                                                              
Number 2206                                                                                                                     
CHAIRMAN KOTT noted it would be a massive change to the state                                                                   
education system.  Really, the jury is still out on those                                                                       
communities who have tried a voucher system; he is not convinced,                                                               
therefore, it would work at this point.  Until he is convinced                                                                  
otherwise, he would not be supporting a voucher system.                                                                         
Number 2246                                                                                                                     
REPRESENTATIVE JAMES stated she's not convinced that the language                                                               
in the proposed constitutional amendment is what she would like.                                                                
She doesn't have a problem with a prohibition on direct funding to                                                              
a religious school, but she has a problem with a child not having                                                               
some money to go somewhere else to school.  She disagrees with the                                                              
idea of having a statute outlined beforehand because one can't be                                                               
passed unless the constitutional amendment has passed.                                                                          
Furthermore, the funding of education should consider every                                                                     
schoolage child in a district.  How the money is spent is the next                                                              
issue.  She said, "I don't think that the whole amount of money                                                                 
divided by the kids would go with the kid, but I think a certain                                                                
portion of it would.  Maybe a thousand or fifteen hundred bucks or                                                              
something would do that.  And, I wish that I had more confidence in                                                             
charter schools, but I think they're limited pretty much by the                                                                 
statutes that we've provided.  Charter schools might provide the                                                                
information that we need that would eliminate a lot of private                                                                  
schools.  But somehow or another I do not believe that the public                                                               
schools fully support all of the needs of all of the kids and they                                                              
need to have some options and we should be helping to give them                                                                 
that option."                                                                                                                   
Number 2416                                                                                                                     
CHAIRMAN KOTT stated certainly there could have been legislation                                                                
crafted to accompany the resolution, which could have included an                                                               
effectuation depending on the passage of the resolution.                                                                        
Nevertheless, the House Judiciary Standing Committee did its best                                                               
with the information available, and from a constitutional                                                                       
TAPE 99-46, SIDE A                                                                                                              
Number 0001                                                                                                                     
REPRESENTATIVE KERTTULA said, "...I mean we've had a lot of                                                                     
hearings on other pieces of legislation that don't rise to this                                                                 
level of concern, so I'm not comfortable that it does.  I'd much                                                                
prefer to be able to flush that out, understand it better."                                                                     
Fundamentally, she further stated there is enough money to fund                                                                 
education, but the legislature is not doing it and this would not                                                               
help any.                                                                                                                       
Number 0049                                                                                                                     
REPRESENTATIVE GREEN stated he understands why a parent would want                                                              
to send his/her child to a different school.  But he wouldn't want                                                              
to be charged anymore than what he is being charged now.  "Whether                                                              
or not I select then to send my child to somewhere else I don't                                                                 
know that it's necessarily the right thing to do to say instead of                                                              
funding there I want you to fund him at my choice.  There I'm                                                                   
having a real fundamental problem and so I will support moving it                                                               
from here because I agree with you [Chairman Kott] it does stand                                                                
the gaff of the legal portion.  I have a lot of problems with it."                                                              
CHAIRMAN KOTT called for a roll call vote.  Representatives Green,                                                              
Rokeberg, James and Kott voted in favor of the motion.                                                                          
Representatives Croft and Kerttula voted against the motion.  The                                                               
motion passed by a vote of 4-2.  House Joint Resolution 6 was so                                                                
moved from the House Judiciary Standing Committee.                                                                              
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee                                                                  
meeting at 4:55 p.m.                                                                                                            

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