Legislature(2003 - 2004)

03/24/2004 01:15 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         March 24, 2004                                                                                         
                           1:15 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Lesil McGuire, Chair                                                                                             
Representative Tom Anderson, Vice Chair                                                                                         
Representative Jim Holm                                                                                                         
Representative Dan Ogg                                                                                                          
Representative Ralph Samuels                                                                                                    
Representative Les Gara                                                                                                         
Representative Max Gruenberg                                                                                                    
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
HOUSE BILL NO. 244                                                                                                              
"An Act relating  to the Code of Criminal  Procedure; relating to                                                               
defenses,  affirmative defenses,  and  justifications to  certain                                                               
criminal  acts; relating  to rights  of  prisoners after  arrest;                                                               
relating  to  discovery,  immunity from  prosecution,  notice  of                                                               
defenses,  admissibility  of  certain   evidence,  and  right  to                                                               
representation in  criminal proceedings; relating  to sentencing,                                                               
probation,  and discretionary  parole; amending  Rule 16,  Alaska                                                               
Rules of  Criminal Procedure, and  Rules 404, 412, 609,  and 803,                                                               
Alaska Rules of Evidence; and providing for an effective date."                                                                 
     - HEARD AND HELD                                                                                                           
HOUSE BILL NO. 517                                                                                                              
"An Act relating  to registration in beneficiary  form of certain                                                               
security  accounts,  including certain  reinvestment,  investment                                                               
management, and custody accounts."                                                                                              
     - MOVED HB 517 OUT OF COMMITTEE                                                                                            
HOUSE BILL NO. 533                                                                                                              
"An Act relating to the  state's administrative procedures and to                                                               
judicial oversight of administrative matters."                                                                                  
     - HEARD AND HELD                                                                                                           
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: HB 244                                                                                                                  
SHORT TITLE: CRIMINAL LAW/SENTENCING/PROBATION/PAROLE                                                                           
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                                                                    
04/04/03       (H)       READ THE FIRST TIME - REFERRALS                                                                        
04/04/03       (H)       JUD, FIN                                                                                               
04/14/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/14/03       (H)       Heard & Held                                                                                           
04/14/03       (H)       MINUTE(JUD)                                                                                            
04/25/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/25/03       (H)       -- Meeting Postponed --                                                                                
05/07/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
05/07/03       (H)       Scheduled But Not Heard                                                                                
05/08/03       (H)       JUD AT 3:30 PM CAPITOL 120                                                                             
05/08/03       (H)       Heard & Held                                                                                           
05/08/03       (H)       MINUTE(JUD)                                                                                            
05/09/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
05/09/03       (H)       Moved CSHB 244(JUD) Out of Committee                                                                   
05/09/03       (H)       MINUTE(JUD)                                                                                            
05/12/03       (H)       JUD RPT CS(JUD) NT 1DP 1DNP 4NR                                                                        
05/12/03       (H)       DP: SAMUELS; DNP: GARA; NR: HOLM,                                                                      
05/12/03       (H)       OGG, GRUENBERG, MCGUIRE                                                                                
05/13/03       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
05/13/03       (H)       -- Meeting Canceled --                                                                                 
05/14/03       (H)       FIN AT 8:30 AM HOUSE FINANCE 519                                                                       
05/14/03       (H)       Heard & Held                                                                                           
05/14/03       (H)       MINUTE(FIN)                                                                                            
05/15/03       (H)       FIN AT 8:30 AM HOUSE FINANCE 519                                                                       
05/15/03       (H)       Moved CSHB 244(JUD) Out of Committee                                                                   
05/15/03       (H)       MINUTE(FIN)                                                                                            
05/15/03       (H)       FIN RPT CS(JUD) NT 2DNP 4NR 4AM                                                                        
05/15/03       (H)       DNP: KERTTULA, FOSTER; NR: MOSES,                                                                      
05/15/03       (H)       CHENAULT, HARRIS, WILLIAMS; AM: HAWKER,                                                                
05/15/03       (H)       STOLTZE, BERKOWITZ, WHITAKER                                                                           
05/15/03       (H)       RETURNED TO JUD COMMITTEE                                                                              
05/15/03       (H)       IN JUDICIARY                                                                                           
03/19/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/19/04       (H)       Heard & Held                                                                                           
03/19/04       (H)       MINUTE(JUD)                                                                                            
03/24/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB 517                                                                                                                  
SHORT TITLE: SECURITY ACCOUNT BENEFICIARY DESIGNATION                                                                           
SPONSOR(S): LABOR & COMMERCE                                                                                                    
02/23/04       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/23/04       (H)       L&C, JUD                                                                                               
03/01/04       (H)       L&C AT 3:15 PM CAPITOL 17                                                                              
03/01/04       (H)       Moved Out of Committee                                                                                 
03/01/04       (H)       MINUTE(L&C)                                                                                            
03/03/04       (H)       L&C RPT 4DP 1NR                                                                                        
03/03/04       (H)       DP: LYNN, ROKEBERG, DAHLSTROM, GATTO;                                                                  
03/03/04       (H)       NR: CRAWFORD                                                                                           
03/24/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB 533                                                                                                                  
SHORT TITLE: IF UNREAS. AGENCY DELAY, COURT DECIDES                                                                             
SPONSOR(S): STATE AFFAIRS                                                                                                       
03/08/04       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/08/04       (H)       JUD, FIN                                                                                               
03/24/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
WITNESS REGISTER                                                                                                              
SUSAN A. PARKES, Deputy Attorney General                                                                                        
Central Office                                                                                                                  
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Presented the proposed CS for HB 244 on                                                                    
behalf of the administration.                                                                                                   
ALLEN STOREY, Lieutenant                                                                                                        
Central Office                                                                                                                  
Division of Alaska State Troopers                                                                                               
Department of Public Safety (DPS)                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of Sections 1-7 and                                                                   
12, and the self-defense provisions of the proposed CS for HB
244, and responded to questions.                                                                                                
SIDNEY K. BILLINGSLEA, Attorney                                                                                                 
Alaska Academy of Trial Lawyers (AATL)                                                                                          
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During discussion of HB 244, relayed her                                                                   
concerns about Sections 8-9 and 12, and the self-defense                                                                        
provisions of the proposed CS, and responded to questions.                                                                      
MARIBETH CONWAY, Trust Manager                                                                                                  
Wells Fargo                                                                                                                     
(Address not provided)                                                                                                          
POSITION STATEMENT:   Assisted  with the  presentation of  HB 517                                                               
and responded to questions.                                                                                                     
REPRESENTATIVE BRUCE WEYHRAUCH                                                                                                  
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:    As  chair  of  the  House  State  Affairs                                                               
Standing  Committee, sponsor  of  HB 533,  explained the  changes                                                               
encompassed in Version D.                                                                                                       
DAVID STANCLIFF, Staff                                                                                                          
to Senator Gene Therriault                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Spoke on behalf of  Senator Therriault, the                                                               
sponsor of SB 333, companion bill to HB 533.                                                                                    
JAN DeYOUNG, Assistant Attorney General                                                                                         
Labor and State Affairs Section                                                                                                 
Civil Division (Anchorage)                                                                                                      
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Expressed concerns with HB 533.                                                                            
ACTION NARRATIVE                                                                                                              
TAPE 04-46, SIDE A                                                                                                            
Number 0001                                                                                                                     
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to  order  at   1:15  p.m.    Representatives                                                               
McGuire, Holm,  Ogg, Samuels, and  Gara were present at  the call                                                               
to order.  Representatives Anderson  and Gruenberg arrived as the                                                               
meeting was in progress.                                                                                                        
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE                                                                             
Number 0085                                                                                                                     
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be HOUSE BILL  NO. 244, "An Act relating to  the Code of Criminal                                                               
Procedure;  relating  to   defenses,  affirmative  defenses,  and                                                               
justifications to  certain criminal  acts; relating to  rights of                                                               
prisoners  after arrest;  relating  to  discovery, immunity  from                                                               
prosecution,  notice   of  defenses,  admissibility   of  certain                                                               
evidence, and  right to  representation in  criminal proceedings;                                                               
relating  to  sentencing,  probation, and  discretionary  parole;                                                               
amending Rule 16,  Alaska Rules of Criminal  Procedure, and Rules                                                               
404, 412, 609,  and 803, Alaska Rules of  Evidence; and providing                                                               
for an effective date."                                                                                                         
[Before the committee, adopted as a  work draft on 3/19/04, was a                                                               
proposed committee substitute (CS) labeled 04-0033, 1/16/2004.]                                                                 
Number 0092                                                                                                                     
SUSAN  A.  PARKES,  Deputy   Attorney  General,  Central  Office,                                                               
Criminal  Division, Department  of  Law  (DOL), reminded  members                                                               
that at the last hearing on  HB 244, she'd began her presentation                                                               
by pointing out the similarities  between the proposed CS and the                                                               
version  that  was reported  from  the  House Judiciary  Standing                                                               
Committee last  year.  Today,  she indicated, she would  begin by                                                               
speaking  about the  new  bootlegging  provisions, Sections  1-4,                                                               
which propose to give some  additional power to local communities                                                               
with  regard  to  setting   bootlegging  standards.    Currently,                                                               
statute allows for  a local option:  a community  can say that if                                                               
one possess  more than a certain  amount of alcohol, then  one is                                                               
presumed to  be possessing it  for sale as opposed  to possessing                                                               
it for  personal consumption.   There  are communities  that have                                                               
chosen to have  a lower limit than that which  is set in statute,                                                               
but  nothing   under  current   statute  allows   recognition  or                                                               
enforcement  of that  choice.   Sections 1-4  of the  proposed CS                                                               
would allow the  state to recognize and  enforce more restrictive                                                               
local  options  when  such  are   chosen  by  municipalities  and                                                               
established villages.                                                                                                           
MS.  PARKES turned  attention to  Sections  6-7.   She said  that                                                               
these  sections propose  to  strengthen  the state's  bootlegging                                                               
statutes by amending the forfeiture  provisions such that "money,                                                               
securities,  negotiable instruments,  or  other  things of  value                                                               
used  in  financial  transactions"  that  are  derived  from  the                                                               
bootlegging activity  could also be  subject to forfeiture.   She                                                               
noted that  these items  are currently  subject to  forfeiture in                                                               
drug cases, and  so the proposed CS simply  adds similar language                                                               
to  the  statute  pertaining  to bootlegging.    In  response  to                                                               
questions,  she explained  that  for the  purpose of  forfeiture,                                                               
there must be  a nexus between the money being  forfeited and the                                                               
bootlegging  activity, and  that  a hearing  for  the purpose  of                                                               
establishing that nexus would be required.                                                                                      
REPRESENTATIVE  GRUENBERG  raised  the question  of  whether  the                                                               
term, "cash equivalents" ought to be used.                                                                                      
MS. PARKES  offered her  belief that the  proposed CS  is drafted                                                               
broadly enough  to include  future changes  in the  way financial                                                               
transactions occur.                                                                                                             
REPRESENTATIVE OGG said  he would like to know  what the sequence                                                               
of events would  be with regard to forfeiture, for  example, in a                                                               
bootlegging situation involving an aircraft.                                                                                    
Number 0566                                                                                                                     
MS. PARKES  surmised that it  is probably similar to  the current                                                               
process  regarding  felony  driving  under  the  influence  (DUI)                                                               
crimes.  In such cases, the vehicle  is seized at the time of the                                                               
arrest; there is  a process set up for "bonding  it out," as well                                                               
as ways to protect "innocent  third parties."  She suggested that                                                               
a  representative from  the Alaska  State  Troopers could  better                                                               
explain the forfeiture procedure.                                                                                               
REPRESENTATIVE  OGG  asked whether  there  is  any evidence  that                                                               
forfeitures and seizures really do act as deterrents.                                                                           
MS. PARKES  said she  is unaware of  any specific  research being                                                               
done on  that issue, but offered  her belief that word  of such a                                                               
forfeiture  provision can  spread quickly  in small  communities,                                                               
and  so  that  kind  of   a  provision  could  perhaps  become  a                                                               
REPRESENTATIVE  GRUENBERG turned  attention  back  to Section  1,                                                               
proposed subsections  (c)(1) and (2).   He noted  that subsection                                                               
(c)(1) uses  the past tense,  whereas subsection (c)(2)  uses the                                                               
present tense.   He asked whether this is  intentional or whether                                                               
a conforming amendment might be needed.                                                                                         
MS. PARKES said she would research that issue.                                                                                  
MS.  PARKES  then  turned  attention to  Section  5,  which,  she                                                               
relayed, is a new provision that  proposes to add a new paragraph                                                               
(3) to AS 04.16.051.  Currently,  providing alcohol to a minor is                                                               
considered  a  class  A misdemeanor,  though  there  are  certain                                                               
circumstances in which such an  action would become a felony, for                                                               
example,  if the  person  has  a prior  conviction  for the  same                                                               
offense  or  if, after  being  provided  the alcohol,  the  minor                                                               
causes serious physical  injury or death to  another person while                                                               
under the influence  of that alcohol.  Paragraph  (3) proposes to                                                               
add  another  circumstance under  which  providing  alcohol to  a                                                               
minor  would be  considered a  felony:   if the  violation occurs                                                               
within the  boundaries of a  municipality or the perimeter  of an                                                               
established  village that  has adopted  a local  option under  AS                                                               
04.11.491.  She said the intent  is to recognize that it's a more                                                               
serious offense  to provide alcohol  to a  minor in a  village or                                                               
area that has adopted a local option.                                                                                           
Number 0925                                                                                                                     
MS. PARKES turned attention to  Section 12, and said this section                                                               
proposes  to establish  a new  crime -  violation of  custodian's                                                               
duty.   Currently  under the  bail statutes,  judges can  release                                                               
[defendant]  on  bail  if he/she  has  a  third-party  custodian.                                                               
Section  12 says  that  if  someone agrees  to  be a  third-party                                                               
custodian and then  fails to fulfill those duties,  he/she can be                                                               
charged  with a  class A  misdemeanor if  the released  person is                                                               
charged  with a  felony, or  with a  class B  misdemeanor if  the                                                               
released person is charged with a misdemeanor.                                                                                  
MS.  PARKES, in  response  to a  question,  said that  currently,                                                               
someone  who  fails  to  fulfill  the  duties  of  a  third-party                                                               
custodian  can  be charged  with  criminal  contempt, which,  she                                                               
opined, is  cumbersome.  She  offered her belief that  Section 12                                                               
will provide "a cleaner way"  to prosecute cases in which someone                                                               
fails  to fulfill  the duties  of a  third-party custodian.   She                                                               
     The other purpose  of putting it in Title  11 is, we're                                                                    
     trying to  flag some of these  [third-party custodians]                                                                    
     who don't  fulfill their  duties.  So  if they  come up                                                                    
     years   from  now   proposing  to   be  a   third-party                                                                    
     [custodian] in another case, ...  that flags it for us;                                                                    
     we can know  to take a look at that  person to question                                                                    
     whether  maybe  there's a  problem  with  them being  a                                                                    
     third-party [custodian].                                                                                                   
REPRESENTATIVE  GARA relayed  that although  he does  not have  a                                                               
problem  with "that,"  he does  have  a broader  concern "that  a                                                               
prosecutor who  has a particular  personal problem with  a third-                                                               
party  custodian  might  retaliate  against that  person  by  ...                                                               
seeking  a dual  charge, by  using  this statute  and then  using                                                               
criminal contempt  on top of  that."  He  said he'd like  to make                                                               
sure  that a  person could  only  be charged  under one  criminal                                                               
MS. PARKES offered her belief  that Representative Gara's concern                                                               
"would  be covered  by double  jeopardy," adding,  "you can't  be                                                               
prosecuted twice for  the same conduct, so whether you  call it a                                                               
different  crime,  if  it's  the   same  conduct,  you  can't  be                                                               
prosecuted twice."                                                                                                              
Number 1086                                                                                                                     
REPRESENTATIVE GARA responded:                                                                                                  
     But ... I'm  thinking of people who commit  a crime but                                                                    
     it leads to  ... many different counts, and  I think if                                                                    
     there is  a different element  to the behavior  that is                                                                    
     reflected in one  count, as opposed to  the other, then                                                                    
     you could possibly be charged  under two statutes.  And                                                                    
     I'm  thinking the  contempt charge  might focus  on the                                                                    
     violation of  something that the judge  told the person                                                                    
     to  do when  they became  a third-party  custodian that                                                                    
     might  be different  than  the  failure to  immediately                                                                    
     report in Section 12.                                                                                                      
     ...  I   don't  think   in  a  normal   circumstance  a                                                                    
     prosecutor  would try  to prosecute  somebody for  both                                                                    
     this  new charge  and criminal  contempt, but  ... I've                                                                    
     seen enough cases where I  think sometimes people cross                                                                    
     the line, and  I guess I wouldn't like  to see somebody                                                                    
     try to  use the  contempt charge  on top  of this.   If                                                                    
     this is  what we're going to  do, I think this  is what                                                                    
     we should do.   Would there be a way  to reword this to                                                                    
     make sure  that the  criminal contempt  charge couldn't                                                                    
     be piled on top of this charge?                                                                                            
MS.  PARKES said  she would  give  that issue  some thought,  but                                                               
remarked that  it has  not been  her experience  that prosecutors                                                               
would  do  "that."    She  added that  one  of  the  reasons  for                                                               
proposing  the language  in Section  12 is  that prosecutors  are                                                               
loath to try to use the  criminal contempt charge because "it's a                                                               
difficult  statute,"  and offered  her  belief  that "they  would                                                               
merge if they were both brought for the same conduct."                                                                          
REPRESENTATIVE  GRUENBERG  said  he  has problems  with  the  way                                                               
Section 12 is drafted, one  problem being that it doesn't require                                                               
that the  person knowingly fail to  report.  A person  might very                                                               
well  violate a  condition  of  release that  is  unknown to  the                                                               
third-party custodian; for example, "let's  say somebody is in my                                                               
custody and one of the conditions  ... is [that] you can't use an                                                               
illegal substance, and  they're out at work or  something and ...                                                               
smoke  ... marijuana  ...  - I  wouldn't  necessarily know  about                                                               
that."   He  indicated that  he  would be  offering an  amendment                                                               
later  to  ensure  that  the  third-party  custodian  "knowingly"                                                               
failed to report,  or "failed to report something  that they know                                                               
Number 1223                                                                                                                     
MS. PARKES  offered her belief that  under Title 11, if  a mental                                                               
state  is not  specified  in  a statute,  it  is  presumed to  be                                                               
"knowingly"; thus "knowingly" would be read into this provision.                                                                
REPRESENTATIVE  GRUENBERG  concurred  that  such  is  "a  general                                                               
statute," but  opined that "it ought  to be put into  ... here so                                                               
that there  is no question" and  it can't be misinterpreted.   He                                                               
then raised the  issue of perhaps creating a  class C misdemeanor                                                               
for a third-party  custodian of someone who is  only charged with                                                               
a class  B misdemeanor,  and suggested  that the  maximum someone                                                               
could be jailed for a class C misdemeanor would be 30 days.                                                                     
MS. PARKES, in  response to a question about the  mental state of                                                               
"knowingly", said  that one  can't report  something that  one is                                                               
unaware of;  for example,  if the released  person sneaks  out of                                                               
the  house  while  the third-party  custodian  is  sleeping,  the                                                               
custodian  couldn't   report  that  disappearance   until  he/she                                                               
becomes aware of it.                                                                                                            
REPRESENTATIVE OGG  asked whether  the term  "as directed  by the                                                               
court"  means that  the court  is going  to tell  the third-party                                                               
custodian what circumstances and  behaviors he/she is supposed to                                                               
MS. PARKES  said yes, adding  that currently, when one  becomes a                                                               
third-party   custodian,   he/she   must  sign   paperwork   that                                                               
specifically lists the  conditions of release.  In  response to a                                                               
question, she said  that it is her understanding  that the courts                                                               
currently  inform third-party  custodians  what the  consequences                                                               
are of  failing to perform  the custodial duties as  specified in                                                               
the release  paperwork, which  currently also  gives notification                                                               
of  possible consequences.   She  relayed her  hope that  if this                                                               
provision is adopted into law, that  the DOL and the Alaska Court                                                               
System  (ACS)   would  work  together   to  have   the  paperwork                                                               
pertaining to  third-party custodians  altered to  reference this                                                               
new crime  as a  possible consequence of  failing to  perform the                                                               
custodial duties.                                                                                                               
Number 1455                                                                                                                     
MS. PARKES  then turned attention to  Section 27.  She  said that                                                               
currently, there  is no  statutory provision  that would  allow a                                                               
state  or municipal  agency, or  employees of  such, to  disclose                                                               
information  to  a  member  of   the  public  regarding  juvenile                                                               
offenders who  are a danger to  the public.  Currently  there are                                                               
provisions for such  information to be given  to law enforcement,                                                               
to schools, and to other  government agencies.  Section 27, along                                                               
with a forthcoming amendment, is  intended to allow disclosure of                                                               
information to a  member of the public - if  that member requests                                                               
it - regarding  the adjudication of a sexual offense  if it would                                                               
be used  for the purpose of  protecting the safety of  a child or                                                               
vulnerable adult.  She relayed:                                                                                                 
     Where  we saw  situations arising  were social  workers                                                                    
     perhaps  going  into homes  ...  and  being aware  that                                                                    
     there was  a juvenile, who was  perhaps babysitting for                                                                    
     a family,  who had been  adjudicated or charged  with a                                                                    
     sex  offense,  and  there was  no  provision  for  that                                                                    
     [social worker] to warn the  family.  We're looking for                                                                    
     a  way for  the  public to  be protected,  potentially,                                                                    
     from dangerous juveniles.                                                                                                  
MS. PARKES, in response to  a question, relayed that although the                                                               
language currently  in Section 27 only  pertains to adjudications                                                               
of  sexual  offenses,  the aforementioned  forthcoming  amendment                                                               
would broaden this  provision somewhat.  In  response to question                                                               
about  who would  be entitled  to this  type of  information, she                                                               
     That's one of the  concerns about this; there certainly                                                                    
     needs to be some policy  and procedures put in place on                                                                    
     how  this   would  be  handled,  and   the  release  of                                                                    
     information, and what kind of  showing there would need                                                                    
     to be  as to  some child  or vulnerable  adult actually                                                                    
     being in  danger.  And  so as to specifically  how this                                                                    
     would  be  enforced,  [the  Department  of  Health  and                                                                    
     Social  Services (DHSS)]  would  need to  come up  with                                                                    
MS. PARKES  then turned  attention to Sections  10 and  11, which                                                               
are  new  provisions and  which  also  pertain to  juveniles  and                                                               
sexual offenses.   Currently,  [sexual abuse  of a  minor] crimes                                                               
committed by  juveniles who are 15  years old or younger  are all                                                               
classified as  misdemeanors.  The  DOL, however, feels  that such                                                               
does  not proportionally  recognize  the  seriousness of  certain                                                               
[sexual abuse  of a  minor] offenses  when committed  by 15-year-                                                               
olds.  She elaborated:                                                                                                          
     Right now,  if a  15-year-old penetrates a  3- or  a 4-                                                                    
     year-old, it's a misdemeanor.   We think that sends the                                                                    
     wrong  message,  that  if you  burglarize  a  home  you                                                                    
     commit a felony  but [if] you sexually  assault a young                                                                    
     child  it's a  misdemeanor. ...  Again, this  will only                                                                    
     affect  15-year-olds   and  younger;  these   would  be                                                                    
     provisions  handled in  the  juvenile  system. ...  The                                                                    
     "sexual    contact"   provisions    would   remain    a                                                                    
     misdemeanor,   but  it   would  make   the  penetration                                                                    
     offenses a [class] C felony.                                                                                               
Number 1699                                                                                                                     
ALLEN  STOREY, Lieutenant,  Central  Office,  Division of  Alaska                                                               
State  Troopers,  Department  of  Public Safety  (DPS),  said  he                                                               
wanted  to   offer  the  DPS's   support  of  the   proposed  CS,                                                               
specifically   Sections  1-4   and  6-7,   positing  that   these                                                               
provisions will  be great tools for  investigators, allowing them                                                               
to increase their efforts in  helping villages help themselves in                                                               
their battle against  alcoholism and the effects  that alcohol is                                                               
having  on  their  lifestyles.     He  added  that  the  DPS  has                                                               
substantially  ramped up  its  efforts to  catch  those that  are                                                               
involved  in  bootlegging  activities, and  reiterated  that  the                                                               
aforementioned  provisions  will  be  fantastic  tools  for  that                                                               
effort.     The   forfeiture   provisions   will  bring   alcohol                                                               
[bootlegging]  violations into  line with  what has  historically                                                               
been done  for many years  in drug cases.   He noted that  one of                                                               
the aforementioned provisions  would allow the DPS  to share some                                                               
of the  seized and  subsequently forfeited  items with  local law                                                               
enforcement agencies.                                                                                                           
LIEUTENANT STOREY relayed that every  dollar of money invested in                                                               
bootlegging  can generate  as  much as  a  $15 return,  sometimes                                                               
more,  so  there  is  quite  a bit  of  incentive  to  engage  in                                                               
bootlegging  activities.   Law  enforcement  has recently  seized                                                               
several snow machines  and boats, he noted, and  opined that this                                                               
is  having a  direct impact  on  bootlegging behavior.   He  then                                                               
characterized  Section  5  as  a   really  good  tool  that  will                                                               
hopefully have some  impact with regard to breaking  the cycle of                                                               
drinking in villages.                                                                                                           
LIEUTENANT STOREY added:                                                                                                        
     It's not uncommon for us  to receive direct information                                                                    
     that adults are giving alcohol  to minors in return for                                                                    
     use of  their snow machine  or just to party  with them                                                                    
     or   whatever   the   dynamics   of   that   particular                                                                    
     relationship  are.    Alcohol  is  freely  passed  from                                                                    
     adults  to minors  in these  local option  communities,                                                                    
     and we  need to have  some tools  there to help  us ...                                                                    
     break  that   cycle  of  generational   alcoholism  and                                                                    
     alcohol  abuse, and  hopefully improve  the quality  of                                                                    
     life within those communities.                                                                                             
Number 1863                                                                                                                     
LIEUTENANT  STOREY  turned  attention to  Section  12,  regarding                                                               
third-party custodians,  and characterized it  as a tool  that is                                                               
long overdue.  He relayed that  is not uncommon for a drug dealer                                                               
to be  picked up  by law  enforcement one day,  be released  to a                                                               
third-party  custodian, and  be out  on the  street the  next day                                                               
selling drugs again because he/she  had managed to slip away from                                                               
his/her  custodian.   He  opined  that historically,  third-party                                                               
custodians have  not taken  their responsibilities  as custodians                                                               
very  seriously, and  offered  his belief  that  Section 12  will                                                               
result  in  third-party  custodians being  more  responsible  and                                                               
exerting more  control over  those that  have been  released into                                                               
their care.                                                                                                                     
LIEUTENANT STOREY  then offered his belief  that the self-defense                                                               
provisions  of  the proposed  CS  are  good provisions  from  law                                                               
enforcement's point of view.  He elaborated:                                                                                    
     It's not uncommon... [to] show  up at a "sting" where a                                                                    
     multitude  of things  have  happened  and everybody  is                                                                    
     pointing at everybody else  and declaring self defense.                                                                    
     ...  Obviously, crimes  have been  committed, [but]  to                                                                    
     try  and figure  out  who  did what  to  [whom] can  be                                                                    
     incredibly  complex,  and this  gives  us  the tool  to                                                                    
     allow  us  to   more  appropriately  investigate  these                                                                    
     things.  There's another provision  also related to ...                                                                    
     co-participants in  crimes ...  being charged  with the                                                                    
     death  of their  co-participant,  and  we believe  that                                                                    
     that's  a good  tool, also,  that will  give us  a good                                                                    
     opportunity to,  again, properly  ... separate  ... the                                                                    
     bad from  the good -  take the criminals away  from the                                                                    
     law-abiding  people, and  put  them  where they  should                                                                    
     [be], that's away from society.                                                                                            
REPRESENTATIVE HOLM asked Lieutenant  Storey to describe what the                                                               
sequence  of events  would be  regarding  forfeiture of  property                                                               
related to a bootlegging offense.                                                                                               
LIEUTENANT  STOREY, using  the example  of a  drug bust,  relayed                                                               
that law enforcement takes possession  as soon as possible of any                                                               
vehicles,  vessels,  or aircraft  involved  in  the crime.    The                                                               
burden, at  that point,  is on law  enforcement to  maintain that                                                               
property and keep it from harm  so that if it is not subsequently                                                               
forfeited, it can be returned to  the owner.  He pointed out that                                                               
for  any  illegal  activity,  whether  drug-related  or  alcohol-                                                               
related,  searches  and  seizures  by  law  enforcement  must  be                                                               
conducted  in a  legal manner.   In  response to  a question,  he                                                               
clarified that  seizure and forfeiture  are two  separate things;                                                               
seizure of  property could  very likely happen  on the  spot, but                                                               
actual  forfeiture of  that property  would involve  a forfeiture                                                               
proceeding -  the parameters of  which are outlined in  statute -                                                               
that would occur later on in the process.                                                                                       
Number 2095                                                                                                                     
REPRESENTATIVE  GRUENBERG  turned   members'  attention  back  to                                                               
Section  7, which  specifies what  percentage a  court may  award                                                               
forfeited  property to  municipal law  enforcement agencies,  and                                                               
suggested  that  this  provision  might  prove  unconstitutional,                                                               
because of  an irreconcilable conflict  of interest, in  much the                                                               
same way that  in Toomey v. Ohio, the [U.S.]  Supreme Court found                                                             
it  to  be unconstitutional  for  magistrates  who heard  traffic                                                               
offense  cases to  get  paid their  salary  from traffic  offense                                                               
fines.   He opined  that the amounts  of forfeited  property that                                                               
could  be awarded  to municipal  law  enforcement agencies  under                                                               
Section 7 could  create a substantial interest in  the outcome of                                                               
the forfeiture proceedings.                                                                                                     
LIEUTENANT  STOREY pointed  out that  the language  in Section  7                                                               
merely  mirrors language  currently  in the  drug  statutes.   He                                                               
relayed that  before such language  exited in the  drug statutes,                                                               
local law  enforcement agencies were often  reluctant, because of                                                               
budgetary  issues, to  assist state  law enforcement  agencies in                                                               
the battle  against drugs.   He mentioned that any  proceeds from                                                               
forfeitures  that  are  not  awarded  to  local  law  enforcement                                                               
agencies  will end  up  going into  the general  fund  (GF).   He                                                               
offered his belief that awarding  to municipalities proceeds from                                                               
forfeitures pertaining  to drug crimes has  provided an incentive                                                               
for those  municipalities to help state  law enforcement agencies                                                               
and themselves  in doing  drug enforcement.   He opined  that the                                                               
same would  prove true regarding  alcohol enforcement,  and noted                                                               
that  he's  not  yet  seen  any  evidence  that  such  forfeiture                                                               
provisions have been abused.                                                                                                    
MS. PARKES added  that the language in the drug  statutes has not                                                               
been challenged on a constitutional basis.                                                                                      
REPRESENTATIVE GRUENBERG  asked whether  there are  any statutory                                                               
protections in  place for innocent  co-owners or lien  holders of                                                               
forfeited property.                                                                                                             
MS. PARKES said that there  are, both in the bootlegging statutes                                                               
and  in  the drug  statutes.    She then  read  a  portion of  AS                                                               
04.16.220(e) as an example of such a protection.                                                                                
REPRESENTATIVE OGG asked  for an example of the  process used for                                                               
seizing money or negotiable instruments.                                                                                        
LIEUTENANT STOREY  explained that  there must  be a  direct nexus                                                               
between  the  money and  the  illegal  activity.   If,  during  a                                                               
search,  any  money  is  found,  it  taken  into  possession  and                                                               
documented; the money  is then held in the  evidence locker until                                                               
a court order allows further  processing.  He, too, mentioned the                                                               
statutory protections  currently in place for  innocent co-owners                                                               
and/or lien holders.                                                                                                            
TAPE 04-46, SIDE B                                                                                                            
Number 2363                                                                                                                     
REPRESENTATIVE SAMUELS  asked about  the possibility  of altering                                                               
Section 7 such  that forfeited items could be  awarded to Village                                                               
Public Safety Officer (VPSO) programs.                                                                                          
LIEUTENANT STOREY said that the  DPS has struggled with that idea                                                               
in  the past,  but couldn't  come up  with a  way to  do it.   He                                                               
mentioned,  however, that  if the  DOL  could come  up with  some                                                               
acceptable  language regarding  sharing forfeiture  proceeds with                                                               
the VPSO programs,  it could enhance the VPSO's  drug and alcohol                                                               
enforcement  efforts.    In response  to  further  questions,  he                                                               
detailed how  successfully-forfeited items, or the  proceeds from                                                               
such  items,  get distributed  either  to  local agencies,  state                                                               
agencies, or the  GF.  He offered some examples  of property that                                                               
gets  forfeited,  and noted  that  forfeited  property, with  the                                                               
exception of firearms, automatically  becomes the property of the                                                               
commissioner of  the Department of Administration  (DOA); the DOA                                                               
is  then  responsible  for  distributing  that  property  or  its                                                               
REPRESENTATIVE GRUENBERG offered some  remarks about lien holders                                                               
of  forfeited   property  and  possible   contractual  agreements                                                               
between lien holders and owners.                                                                                                
REPRESENTATIVE  OGG,  turning  attention back  to  Representative                                                               
Gruenberg's concern  that Section  7 might  create a  conflict of                                                               
interest,  offered   the  suggestion   that  simply   having  all                                                               
forfeited property, and proceeds from  such, go into the GF would                                                               
prevent any conflict of interest.                                                                                               
Number 1963                                                                                                                     
SIDNEY K. BILLINGSLEA, Attorney, Alaska Academy of Trial Lawyers                                                                
(AATL), indicated that she would be discussing the sections of                                                                  
the proposed CS that she has the most concern with.  She said:                                                                  
     The first  section is  Section 8, which  is on  page 5,                                                                    
     the second  degree murder section, and  my main concern                                                                    
     on  that  is  the unintended  consequences  that  could                                                                    
     result from  trying a person  for murder in  the second                                                                    
     degree  if  one of  their  cohorts  was killed  in  the                                                                    
     course of  one of  the listed  felonies.   The scenario                                                                    
     that  I   see  happening   quite  commonly,   that's  a                                                                    
     potential  downfall  to this,  is  the  fact that  most                                                                    
     residential  burglaries  -  ... one  of  the  predicate                                                                    
     felonies - [occur] between the hours  of 2 and 6 in the                                                                    
     afternoon  and   they're  committed  by   young  people                                                                    
     generally between  the ages of ...  14 and ... 21.   If                                                                    
     one  of these  regular sort  of kids  who goes  to high                                                                    
     school and  (indisc.) going to burglarize  one of their                                                                    
     neighbor's houses, and somebody  happens to be home and                                                                    
     is  taken  by  surprise  [and]  shoots  one  of  theses                                                                    
     teenagers or  young adults, the other  teenagers can be                                                                    
     charged as adults  with second degree murder.   I don't                                                                    
     think  that  the  goal  of the  statute  is  to  create                                                                    
     murderers out  teenage burglars, but that  could be one                                                                    
     of the unintended consequences.                                                                                            
     The  other thing  that is  a problem  with some  of the                                                                    
     other predicate  felonies is that the  government would                                                                    
     first have  to prove,  posthumously, that  the decedent                                                                    
     was  in  fact  a  codefendant, or  would  have  been  a                                                                    
     codefendant if  they had lived,  [and] they  [were] not                                                                    
     somebody  who was  merely present  at the  time of  the                                                                    
     alleged offense.   So, in  a sense, the  decedent would                                                                    
     have to  be posthumously tried  and found to  be guilty                                                                    
     in  order  to prove  the  second  degree murder  charge                                                                    
     against  the accused,  against the  live defendant  who                                                                    
     would  be  accused,  there, of  second  degree  murder.                                                                    
     That  doesn't  make  sense  to me,  and  I  think  that                                                                    
     jurisprudence  has excluded  codefendants for  hundreds                                                                    
     of years partly because of  that and partly because [of                                                                    
     the]   notion   that   people  should   take   personal                                                                    
     responsibility  for  their  behavior:   they  knowingly                                                                    
     engage in a crime;  therefore, they shouldn't (indisc.)                                                                    
     of being  the victim  of a  crime if  something happens                                                                    
Number 1823                                                                                                                     
REPRESENTATIVE GARA  asked why the  example Ms.  Billingslea used                                                               
doesn't already warrant a charge of murder in the second degree.                                                                
MS. BILLINGSLEA  relayed that  under current  law, if  the person                                                               
who  dies is  one  of the  participants in  the  crime, then  co-                                                               
participants are  not charged  with second  degree murder;  it is                                                               
only if  someone other than  a participant dies that  that charge                                                               
is leveled against those who were committing the crime.                                                                         
CHAIR McGUIRE concurred, and surmised  that the intent of Section                                                               
8 is  to say  that a  life is a  life and  if someone  is killed,                                                               
regardless of whether  he/she is also engaged in  the crime, then                                                               
those who are committing the  crime should be charged with second                                                               
degree murder.   She indicated  agreement with  Ms. Billingslea's                                                               
point that having to prove  posthumously that someone was engaged                                                               
in an illegal activity could pose practical problems.                                                                           
MS. BILLINGSLEA  additionally pointed  out that under  Section 8,                                                               
it would  not just be  the kids who enter  the house or  place of                                                               
business who  could be  charged with  second degree  murder; that                                                               
charge would also be leveled at  the kids who are outside waiting                                                               
in the  car even if  they had no idea  that the kids  inside were                                                               
attempting to commit a burglary.                                                                                                
CHAIR McGUIRE said she agrees that  there could be a problem with                                                               
regard to proving posthumously who  was engaged in the crime, but                                                               
said she disagrees with the  argument that what is being proposed                                                               
by  Section  8  is  a  bad  idea because  it  would  turn  a  kid                                                               
attempting to  commit a burglary  into a murderer, since  such is                                                               
already the case if the person who dies is not a participant.                                                                   
MS. BILLINGSLEA acknowledged that latter point.                                                                                 
REPRESENTATIVE  GRUENBERG  suggested  that  the  policy  question                                                               
before the  committee is whether,  in Ms.  Billingslea's example,                                                               
the kids  who are  waiting out  in the car  and who  know nothing                                                               
about  their   friends'  attempt  at  burglary   should  be  held                                                               
responsible  if someone  dies.   He proposed  that the  committee                                                               
reexamine current  law in  light of that  question.   He surmised                                                               
that doing so would also  lead to the self-defense issues related                                                               
to gang  activities.  He added:   "These cases, some  of them are                                                               
difficult  to prosecute;  unfortunately, ...  that's life.   Some                                                               
cases are difficult  to prosecute, other cases  ... are difficult                                                               
to  defend.   But  whether  they are  difficult  to prosecute  or                                                               
difficult  to defend  isn't the  real  issue; the  real issue  is                                                               
justice, fairness, and public policy."                                                                                          
Number 1524                                                                                                                     
CHAIR  McGUIRE agreed,  adding her  belief that  the "transferred                                                               
intent rules  and the felony murder  rules" are some of  the most                                                               
difficult public policy choices  that the legislature has because                                                               
somebody ends  up being  charged with a  higher level  crime than                                                               
that  which  he/she intended  to  commit.   The  state's  current                                                               
policy,  she surmised,  has been  to say,  "Just don't  engage in                                                               
these serious, dangerous types of  crimes, because somebody could                                                               
get hurt."                                                                                                                      
REPRESENTATIVE GARA asked what the  policy basis was for adopting                                                               
the language currently in law.                                                                                                  
MS. BILLINGSLEA offered  that it was perhaps an  intention to say                                                               
that someone who  is killed while engaging  in felonious criminal                                                               
activity  doesn't get  to be  a crime  victim; for  example, "the                                                               
homeowner that kills  you isn't a murderer because  he killed you                                                               
while he's defending his house," she added.                                                                                     
REPRESENTATIVE  GRUENBERG noted  that Alaska,  unlike most  other                                                               
states,  allows the  use deadly  force  to defend  property.   He                                                               
suggested that  the question before  the committee is  whether to                                                               
punish the person  in the car differently depending on  who it is                                                               
that gets killed.  He mentioned  that he, too, would like to know                                                               
the rational behind the current law.                                                                                            
CHAIR McGUIRE surmised  that the unknowing person  waiting in the                                                               
car might  well be  charged as an  accomplice but  probably would                                                               
not be  charged, or at  least could argue against  being charged,                                                               
with  the same  level  of  crime as  the  persons  who enter  the                                                               
building with the intention of committing a crime.                                                                              
MS. PARKES  agreed.   If the prosecutor  can't show  that someone                                                               
was an active participant, whether  remaining in the car or going                                                               
into the building, then the prosecutor  isn't going to be able to                                                               
charge or  convict that  person.  She  said that  certainly there                                                               
will  be degrees  of culpability,  but  noted that  that will  be                                                               
factored in  during the process.   In  response to a  question by                                                               
Representative  Gara, she  acknowledged  that someone  who is  an                                                               
active participant in the commission  of a crime is an accomplice                                                               
and is just  as liable as the main perpetrators  of the crime for                                                               
the events that unfold.                                                                                                         
Number 1199                                                                                                                     
REPRESENTATIVE GARA offered the following scenario:                                                                             
     You're  a conspirator,  you agree  to commit  the crime                                                                    
     with all these other kids;  you're in the car, your job                                                                    
     is, you're  the getaway driver.   One of the  kids goes                                                                    
     in, they  rob the  home, they  start running  away, and                                                                    
     the homeowner  - angry, disturbed, scared,  terrified -                                                                    
     shoots the  kid running away.   Under [Section  8] ...,                                                                    
     the kid sitting  in the car is now guilty  of murder in                                                                    
     the second degree, right?                                                                                                  
MS. PARKES replied:                                                                                                             
     That's  correct  because  the homeowner  isn't  guilty.                                                                    
     The  homeowner   was  acting  lawfully,  and   ...  the                                                                    
     homicide only occurred because of  the conduct of those                                                                    
     people going  and robbing  and burglarizing  this home.                                                                    
     It is their conduct  that brought upon this foreseeable                                                                    
     consequence, which  is what felony  murder is  based on                                                                    
     to begin  with - it  is a foreseeable  consequence that                                                                    
     someone could  die during the course  of the commission                                                                    
     of one  of these  serious offenses.   Right now  we say                                                                    
     [that]  if  it's  a  non-participant,  we're  going  to                                                                    
     prosecute it, [but]  ... if it is  a participant, we're                                                                    
     not.    And that's  where,  if  the  logic is,  it's  a                                                                    
     foreseeable consequence  someone's going to  die, isn't                                                                    
     [it] just  as foreseeable [that] the  homeowner's going                                                                    
     to be quicker on the trigger than the bad guy?                                                                             
REPRESENTATIVE GARA remarked:                                                                                                   
     I have  no problem  with charging somebody  with murder                                                                    
     if they're  in this  tense situation and  the homeowner                                                                    
     ends  up getting  off the  first shot;  I don't  have a                                                                    
     problem with  that. ...  I do have  a problem  with the                                                                    
     [situation  of] then  the people  leaving the  scene of                                                                    
     the crime  - no  longer a present  danger to  anybody -                                                                    
     and  then  somebody  deciding  to  blow  away  the  kid                                                                    
     anyway, like  we had  with the case  of those  kids who                                                                    
     committed  the prank  at that  car  dealership on  15th                                                                    
     Avenue in Anchorage a number of  years ago.  It was the                                                                    
     property owner and he shot the kids in the back. ...                                                                       
MS. PARKES relayed that that man was prosecuted.                                                                                
Number 1052                                                                                                                     
REPRESENTATIVE GARA asked whether  Section 8 as currently written                                                               
would  allow a  homeowner to  shoot someone  who is  no longer  a                                                               
threat,  for  example,  someone  who  is  leaving  the  property.                                                               
"Under this  [proposed] statute, the kids  have committed robbery                                                               
in the  second degree and  a ...  killing has occurred,  so isn't                                                               
... the kid sitting in the  car, the getaway driver, still guilty                                                               
of murder  in the  second degree when  the property  owner shoots                                                               
the fleeing kid in the back?" he asked.                                                                                         
MS. PARKES replied:                                                                                                             
     An  unlawful  killing  by the  homeowner  -  you  know,                                                                    
     they're  chasing them  down  the street  -  ... it's  a                                                                    
     separate  crime, and  ... I  see your  concern and  I'd                                                                    
     have to take a look at  it and think about your factual                                                                    
     scenario ...                                                                                                               
CHAIR McGUIRE interjected  to say that what they did  not want to                                                               
have happen  is for someone to  use deadly force on  a person who                                                               
is running away  and then claim self defense.   She observed that                                                               
that issue ought to be researched  to see whether the language in                                                               
Section 8 needs to be clarified to that effect.                                                                                 
REPRESENTATIVE GARA indicated that he would do so.                                                                              
REPRESENTATIVE SAMUELS  surmised that  whether or not  the driver                                                               
in  the hypothetical  example  actually knew  what  was going  on                                                               
would be a matter for the jury to determine.                                                                                    
MS. PARKES replied:   "Absolutely; we would have  to prove beyond                                                               
a reasonable  doubt that that  person knew that's what  was going                                                               
to happen."                                                                                                                     
REPRESENTATIVE  OGG  opined that  if  someone  does something  of                                                               
his/her own  volition, then that  person is responsible  for what                                                               
Number 0719                                                                                                                     
REPRESENTATIVE  GRUENBERG  asked  whether  someone  who  provides                                                               
burglary  tools  to   a  person  who  later   gets  killed  while                                                               
committing a burglary would be  charged with murder in the second                                                               
degree.   He then  asked whether they  should make  a distinction                                                               
between armed and unarmed participants.                                                                                         
CHAIR McGUIRE,  in response to  the latter question,  opined that                                                               
because  they live  in Alaska,  it  should just  be assumed  that                                                               
everyone is armed.                                                                                                              
MS. PARKES, in  response to the former question,  said no, adding                                                               
that the  person has to either  commit the offense or  attempt to                                                               
commit the offense.                                                                                                             
MS. BILLINGSLEA, after remarking that  Section 8 appears to still                                                               
need some  work, turned  attention to Section  9 of  the proposed                                                               
CS, and said:                                                                                                                   
     The major  issue I  take with  making a  ... criminally                                                                    
     negligent  act a  felonious act  is  that our  [Alaska]                                                                    
     Supreme  Court has  said  that  the difference  between                                                                    
     civil  and  criminal   negligence,  quote,  "while  not                                                                    
     major,  is distinct."   And  what it  comes down  to is                                                                    
     whether or  not an  act is a  gross deviation  from the                                                                    
     standard of care and [whether]  that gross deviation is                                                                    
     something  more than  the slight  degree of  negligence                                                                    
     required for civil torts.   A really good discussion of                                                                    
     criminal negligence comes from  the Hazelwood case that                                                                  
     you  may be  familiar  with from  our [Alaska]  Supreme                                                                    
     Court in  1997, and I  think that would  be instructive                                                                    
     for   the  committee   to   review.     Negligence   is                                                                    
     essentially carelessness,  and criminal  negligence is,                                                                    
     quote,  "something   more  than  carelessness   but  it                                                                    
     doesn't  require  a  guilty  mind,"  and  felonies  are                                                                    
     serious crimes.                                                                                                            
     So it  seems to be  that if  you convict somebody  of a                                                                    
     serious  crime   with  an  equally  serious   level  of                                                                    
     criminal intent,  it probably violates our  due process                                                                    
     clause.    I  ...  think Alaska's  due  process  clause                                                                    
     requires  ...  that  society's  interest  in  obtaining                                                                    
     compliance   with   [this    law]   not   outweigh   an                                                                    
     individual's  interest  in   freedom  from  substantial                                                                    
     punishment  if  that   person  couldn't  reasonably  be                                                                    
     expected  to avoid  the  violation.   And  I know  that                                                                    
     sounds  complex,   but  let  me  throw   something  out                                                                    
     hypothetically.     So  the  dangerous   instrument  is                                                                    
     anything,  and  could  be  snow  machines,  snowboards,                                                                    
     skis, cars.   You  could have an  individual who  had a                                                                    
     few drinks at  the top of Alyeska, or even  a couple of                                                                    
     drinks at the top Alyeska,  and skis or snowboards down                                                                    
     and hurts  somebody, causes serious physical  injury as                                                                    
     defined  by statute  -  which isn't  that  great ...  a                                                                    
     standard   to  prove,   it's  physical   injury  that's                                                                    
     protracted - they could be charged with a felony.                                                                          
Number 0501                                                                                                                     
     And  I'm not  sure  that the  committee  wants that  to                                                                    
     happen  in  Alaska.     There's  carelessness  that  is                                                                    
     assault  in the  fourth  degree,  that causes  physical                                                                    
     injury,  and I  think  that that's  sufficient for  our                                                                    
     purposes.  So having said that  I'll move on to my next                                                                    
     problematic  section that  I'm  focusing  on, which  is                                                                    
     Section 12  on page  7 about  criminalizing third-party                                                                    
     custodians.  I  don't know what the fiscal  ... note on                                                                    
     this bill is,  but I can tell  you [that] criminalizing                                                                    
     the failure of third-party  custodians to do their duty                                                                    
     to report violations of bail  - which is now a contempt                                                                    
     of  court [and]  which  is punishable  by fines  and/or                                                                    
     jail depending  on the  level of  contempt -  will have                                                                    
     the effect of  reducing the number of  volunteers to be                                                                    
     third-party custodians.                                                                                                    
MS. BILLINGSLEA continued:                                                                                                      
     Alaska, Anchorage in particular,  is addicted to third-                                                                    
     party  custodians  for   conditions  of  bail  release.                                                                    
     We'll  have  fewer  people  out  of  jail  on  pretrial                                                                    
     release,   [and  that]   would   raise   the  cost   of                                                                    
     incarcerating people.   I can tell you  that both jails                                                                    
     are  full and  they have  "boats"  in the  rooms now  -                                                                    
     boats  are those  plastic sleds  that people  sleep in;                                                                    
     they're sleeping  four, five, and  six to a  room right                                                                    
     now  [in a]  brand  new  jail.   And  if you  prosecute                                                                    
     people for  violating ... third-party  custodian duties                                                                    
     under criminal  law, you may actually  be incarcerating                                                                    
     more people.  So this is  not a freebee.  I don't think                                                                    
     the  system is  broken  right now;  I'm  not sure  that                                                                    
     there's a  need to fix [it].   I don't know  where this                                                                    
     idea  came from.    I  don't know  why  people need  to                                                                    
     criminalize more  and more behavior  by people  who are                                                                    
     essentially  no-criminal-record   volunteers  [getting]                                                                    
     people  out [of]  jail,  essentially,  doing the  court                                                                    
     system a favor.   So it's nuts to me  - that section is                                                                    
     nuts. ...                                                                                                                  
Number 0353                                                                                                                     
     Self defense is  the last issue ... and I  just want to                                                                    
     briefly say that it does tie  in, to a degree, with the                                                                    
     felony murder  section that we talked  about [earlier].                                                                    
     ...  I've been  practicing criminal  law up  here since                                                                    
     1986 [and] I've  been a lawyer since 1984.   I see what                                                                    
     the State  of Alaska prosecutes  [and] I see  what they                                                                    
     screen out; ... I  represent people before they've been                                                                    
     charged  with crimes  formally,  [and] represent  them,                                                                    
     certainly,  after.   ...  What  [Chair   McGuire]  said                                                                    
     earlier  about  Alaska  being a  place  where  you  can                                                                    
     assume  everybody   is  armed,  you  know,   we're  all                                                                    
     citizens;  everybody in  this state  is a  citizen, and                                                                    
     that's the first  thing that we need to  not lose sight                                                                    
     We're  all entitled  to equal  protection of  the laws,                                                                    
     we're all  entitled to the  right to self  defense, and                                                                    
     we're  all  aware that  this  is  a dangerous  society.                                                                    
     Some of us live closer  to the front lines than others;                                                                    
     some of  us who make  these laws  live in the  back, in                                                                    
     the  rear, but  we're aware,  from our  observation and                                                                    
     [from] the fact that we  actually pass laws that permit                                                                    
     people  to carry  firearms in  ever-growing quantities,                                                                    
     that  it's dangerous.   It's  not  a good  idea, in  my                                                                    
     opinion, to carve  out a group of  citizens and deprive                                                                    
     them of  a right  to defend  themselves when,  in fact,                                                                    
     they  live  on  the   front  lines  of  this  dangerous                                                                    
MS. BILLINGSLEA concluded:                                                                                                      
     ...  I   think  that   the  question  of   whether  ...                                                                    
     reasonable  self defense  occurs  in a  case should  be                                                                    
     left to ... other citizens sitting  on a jury, and if a                                                                    
     person  has  reasonably  defended  himself  and  that's                                                                    
     proved  - that  is, not  disproved beyond  a reasonable                                                                    
     doubt  - then  they'll  be acquitted.    If they  can't                                                                    
     produce  some evidence  - as  our standard  now -  that                                                                    
     they defended  themselves in a reasonable  way, they'll                                                                    
     be convicted.  Depriving  the alleged gangsters and the                                                                    
     alleged drug  dealers -  or the people  who want  to be                                                                    
     gangsters [or] who might want to be drug dealers - of                                                                      
     the right to self defense is not an equal protection.                                                                      
     And that's what I have to say.  Thank you.                                                                                 
CHAIR McGUIRE thanked Ms. Billingslea for her comments.                                                                         
REPRESENTATIVE GARA,  turning attention  back to Section  8, said                                                               
that there is only one  possible circumstance that he has concern                                                               
about, that  being if the  homeowner shoots a participant  in the                                                               
back and  the other participants  are charged with  second degree                                                               
murder.   He  suggested amending  Section  8 such  that it  would                                                               
apply unless the  killing was the result of illegal  conduct by a                                                               
MS.  BILLINGSLEA offered  her recollection,  however,  of a  case                                                               
wherein a  homeowner shot a  burglar in  the back as  the burglar                                                               
was fleeing  the house.   The burglar,  a young man,  was killed,                                                               
but the homeowner was not prosecuted.   She said, "You would have                                                               
to  prove that  his behavior  was illegal  over [vociferous  self                                                               
defense  and  defense  of  property  claims.]    [The  previously                                                               
bracketed portion  was not on tape  but was taken from  the Gavel                                                               
to Gavel recording on the Internet.]                                                                                            
TAPE 04-47, SIDE A                                                                                                            
Number 0001                                                                                                                     
MS. BILLINGSLEA continued:  "I'm not  sure that you can carve out                                                               
a sufficient amendment for that.   It would add extra elements to                                                               
the crime;  it would be sort  of like the hearsay  rule where the                                                               
exceptions consume the rule."                                                                                                   
REPRESENTATIVE GARA  said he is  comfortable with the  concept of                                                               
applying a  charge of  murder in the  second degree  when someone                                                               
creates an array of circumstances  that are somewhat foreseeable.                                                               
He  remarked, however,  "Except I  draw the  line at:   it's  not                                                               
foreseeable for, then,  somebody else not related to  you to then                                                               
go  commit a  crime, an  illegal act,  that [you  then] get  held                                                               
responsible for."                                                                                                               
MS.   BILLINGSLEA  mentioned   that  foreseeability   is  usually                                                               
confined to  conspiracy statutes, and  pointed out that  there is                                                               
no foreseeability clause  in the statute pertaining  to murder in                                                               
the second degree.                                                                                                              
CHAIR McGUIRE  asked interested parties  to fax  written comments                                                               
to the committee and relayed that HB 244 would be held over.                                                                    
[Following was a  brief discussion regarding when  the bill would                                                               
be  heard   next,  who  had  provided   the  proposed  amendments                                                               
currently  in members'  packets, and  what form  further proposed                                                               
amendments should take.]                                                                                                        
HB 517 - SECURITY ACCOUNT BENEFICIARY DESIGNATION                                                                             
Number 0425                                                                                                                     
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE  BILL  NO.  517,  "An   Act  relating  to  registration  in                                                               
beneficiary form of certain  security accounts, including certain                                                               
reinvestment, investment management, and custody accounts."                                                                     
REPRESENTATIVE  ANDERSON,  speaking as  the  chair  of the  House                                                               
Labor  and  Commerce  Standing  Committee,  sponsor  of  HB  517,                                                               
relayed that  the bill  will permit  an investment  management or                                                               
custody account  with a trust company,  or a trust division  of a                                                               
bank with  trust powers, to  have a beneficiary  designation take                                                               
effect  upon  the  death  of  the  owner.    Under  current  law,                                                               
securities   and   brokerage   accounts  may   have   beneficiary                                                               
designations take effect upon the  death of the owner pursuant to                                                               
the   Uniform   Transfer-On-Death  Security   Registration   Act.                                                               
However,  the current  definition  in  Alaska statutes  regarding                                                               
security  accounts  is not  broad  enough  to include  investment                                                               
management  or  custody accounts,  which  are  generally used  by                                                               
trust departments.                                                                                                              
REPRESENTATIVE ANDERSON relayed that HB  517 comes at the request                                                               
of Wells  Fargo and will allow  all of "these products"  to avoid                                                               
probate   by  providing   statutory   authorization   to  use   a                                                               
beneficiary designation.   The  bill will  also put  banks' trust                                                               
departments  on  an equal  footing  with  brokerage firms.    The                                                               
problem cannot  be solved other  than by statute, he  opined, and                                                               
noted  that several  states have  enacted similar  legislation in                                                               
the  last   three  years,  including  California,   Idaho,  Iowa,                                                               
Minnesota, and  Washington.  He  mentioned that  members' packets                                                               
contain a letter of support from Wells Fargo.                                                                                   
Number 0580                                                                                                                     
MARIBETH CONWAY,  Trust Manager, Wells Fargo,  offered her belief                                                               
that  HB 517  is a  simple technical  change to  Alaska's current                                                               
transfer  on death  (TOD) law.    Current Alaska  law, which  was                                                               
initially drafted  as a  uniform state  law, focuses  on accounts                                                               
offered by  brokerages and  other financial  institutions because                                                               
it is  generally assumed  that bank  accounts fall  under another                                                               
statute.   However, banks' trust departments  and trust companies                                                               
do have investment  management and custody accounts  that are not                                                               
included  in   the  current  statutory  definition   of  security                                                               
accounts.   Consequently,  security  and  brokerage accounts  can                                                               
have a  specified beneficiary designation that  takes effect upon                                                               
the death  of the owner  - the form used  is very similar  to the                                                               
beneficiary designation form used  for life insurance policies or                                                               
individual retirement  accounts (IRAs)  - allowing probate  to be                                                               
avoided, but investment management  accounts and custody accounts                                                               
offered by banks do not yet have this flexibility.                                                                              
MS.  CONWAY remarked  that customers  of  banks, however,  expect                                                               
that investment  management accounts  and custody  accounts would                                                               
be  handled the  same  way  as similar  accounts  are treated  in                                                               
brokerage firms, and  HB 517 would, in fact,  make this possible.                                                               
Without passage  of the bill, investment  management accounts and                                                               
custody  accounts, whether  in  a  trust company  or  in a  trust                                                               
division of  a bank,  must go  through probate.   House  Bill 517                                                               
allows  for very  simple treatment  of beneficiary  designations,                                                               
clarifies the definition  of security account, and  puts the same                                                               
types of  accounts held in  different companies on  equal footing                                                               
with regard  to transfers on  death.  She mentioned  that similar                                                               
changes  have recently  been enacted  in other  states, that  the                                                               
changes  appear to  be  non-controversial, and  that  no one  has                                                               
experienced problems  with the changes.   For these  reasons, she                                                               
remarked, Wells  Fargo would  appreciate the  committee's support                                                               
in passing HB 517.                                                                                                              
MS. CONWAY,  in response  to questions, relayed  that it  is very                                                               
common  for individuals  to have  investment management  accounts                                                               
through Wells Fargo's trust department  even though such accounts                                                               
are not specifically  trust accounts; the same can be  done via a                                                               
trust company,  and these accounts  are similar to ones  that can                                                               
be arranged  through brokerage firms, which  currently have forms                                                               
that  allow  for beneficiary  designations  to  take effect  upon                                                               
death of the account owners.                                                                                                    
Number 0901                                                                                                                     
REPRESENTATIVE GRUENBERG turned  attention to AS 13.33.310(b)(3),                                                               
which uses the term "LDPS."  He asked what "LDPS" stands for.                                                                   
MS. CONWAY said she was not sure.                                                                                               
REPRESENTATIVE GRUENBERG asked whether the bill "just puts bank-                                                                
managed  accounts  on  the   same  footing  as  brokerage-managed                                                               
MS.  CONWAY  said  that  is  correct.   In  response  to  another                                                               
question, she  offered her  recollection that  the model  Act was                                                               
adopted in whole, for the most part, in Alaska.                                                                                 
REPRESENTATIVE GRUENBERG turned attention to  page 2, lines 8 and                                                               
20, and asked what would be considered "cash equivalents".                                                                      
MS. CONWAY offered as an example a money market investment fund.                                                                
CHAIR  McGUIRE, after  ascertaining that  no one  else wished  to                                                               
testify, closed public testimony on HB 517.                                                                                     
REPRESENTATIVE ANDERSON,  in response  to a  question, reiterated                                                               
his earlier comments regarding the perceived need for the bill.                                                                 
REPRESENTATIVE  GARA noted  that the  bill is  only a  definition                                                               
REPRESENTATIVE GRUENBERG offered that  it is a definition section                                                               
for  the  Uniform  Transfer-On-Death Security  Registration  Act,                                                               
which allows one to simplify a  transfer at the time of death and                                                               
avoid  probate  by setting  up  either  a  "pay on  death  (POD)"                                                               
account or  a "transfer  on death (TOD)"  account.   He mentioned                                                               
that  a POD  usually pertains  to  money, whereas  a TOD  usually                                                               
pertains  to  securities.    Such accounts  are  simple  ways  of                                                               
ensuring that upon the death of  the owner, the assets are passed                                                               
on  to the  beneficiary  or beneficiaries  without  the need  for                                                               
Number 1297                                                                                                                     
REPRESENTATIVE GARA moved to report  HB 517 out of committee with                                                               
individual  recommendations  and  the  accompanying  zero  fiscal                                                               
[note].  There  being no objection, HB 517 was  reported from the                                                               
House Judiciary Standing Committee.                                                                                             
HB 533 - IF UNREAS. AGENCY DELAY, COURT DECIDES                                                                               
Number 1326                                                                                                                     
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be  HOUSE  BILL  NO.  533,   "An  Act  relating  to  the  state's                                                               
administrative   procedures   and   to  judicial   oversight   of                                                               
administrative matters."                                                                                                        
Number 1368                                                                                                                     
REPRESENTATIVE  SAMUELS moved  to  adopt  the proposed  committee                                                               
substitute  (CS)  for  HB 533,  Version  23-LS1833\D,  Bannister,                                                               
3/24/04, as the work draft.   There being no objection, Version D                                                               
was before the committee.                                                                                                       
Number 1381                                                                                                                     
REPRESENTATIVE  BRUCE  WEYHRAUCH,  Alaska State  Legislature,  as                                                               
chair of the  House State Affairs Standing  Committee, sponsor of                                                               
HB 533, reviewed  the changes encompassed in Version D.   On page                                                               
2,  line 12,  the word  ["significant"  is replaced  by the  word                                                               
"immediate"],  and  the sentence  on  page  2, lines  14-16,  was                                                               
added.    Representative  Weyhrauch   explained  that  for  those                                                               
individuals  who come  before an  administrative  law judge,  the                                                               
decision  is under  advisement for  some  time, occasionally  for                                                               
years or even  decades.  This can be quite  frustrating for those                                                               
individuals  who have  a permit  or decision  pending within  the                                                               
purview of  an agency  hearing officer but  no decision  has been                                                               
reached.   This  legislation would  allow the  individual in  the                                                               
aforementioned situation  to ask the  court to either  enjoin the                                                               
agency to issue a decision sooner  rather than later or take some                                                               
other remedial step to that effect.                                                                                             
REPRESENTATIVE  WEYHRAUCH pointed  out that  HB 533requires  that                                                               
the  individual notify  the  agency that  if  the agency  doesn't                                                               
"move," then  it will  be taken  to court.   The  individual will                                                               
request a  reason why  no ruling is  being made.   Representative                                                               
Weyhrauch posed a situation in  which an individual has "a simple                                                               
summary judgment  action."  An  opposition and a reply  is filed,                                                               
and the  court then  holds oral  arguments.   At that  point, the                                                               
case is  taken under advisement  and the  record is closed.   Six                                                               
months from the  day the case is under advisement,  the court has                                                               
to  rule or  its  checks  are withheld.    Although delays  don't                                                               
happen in  every case, it's  frustrating to the public  when they                                                               
CHAIR McGUIRE  inquired as  to the case  in which  the petitioner                                                               
continues to file  appeals to delay the process  because it's not                                                               
to the petitioner's benefit to obtain an ultimate result.                                                                       
REPRESENTATIVE  WEYHRAUCH acknowledged  that there  are instances                                                               
in which  someone would file  appeal and that individual  wants a                                                               
delay  and doesn't  want a  decision to  ever be  issued.   Those                                                               
individuals don't have  to act under this  legislation.  "There's                                                               
no requirement  that they repair to  a court to force  a decision                                                               
maker  of  an  agency,"  he  clarified.    With  respect  to  the                                                               
Commercial  Fisheries Entry  Commission  (CFEC),  the longer  the                                                               
pending permit is under advisement,  the longer the person has an                                                               
interim permit and  the longer that person can  continue to fish.                                                               
Therefore, it's  in the interest  of someone with zero  points on                                                               
his/her permit  to draw out  the case.   Representative Weyhrauch                                                               
reiterated that  this legislation  doesn't require that  the CFEC                                                               
drag  out a  decision, rather  it's a  remedy in  cases that  are                                                               
where that is occurring.                                                                                                        
REPRESENTATIVE  SAMUELS offered  his belief  that in  the supreme                                                               
court, if  one justice can't  make a decision within  six months,                                                               
the case is passed to the next justice.                                                                                         
REPRESENTATIVE WEYHRAUCH said that  from everything he has heard,                                                               
the [judiciary]  is trying its best  to put forth decisions  in a                                                               
timely manner.                                                                                                                  
Number 1746                                                                                                                     
REPRESENTATIVE  GRUENBERG referred  to AS  22.05.140, which  says                                                               
that a judge may not receive  a salary warrant until an affidavit                                                               
is  signed  specifying  that  no opinion  or  decision  has  been                                                               
uncompleted  or undecided  by the  justice for  a period  of more                                                               
than six months.   In the supreme court or  the court of appeals,                                                               
which are  multi-judge courts, this  means that there must  be an                                                               
opinion    circulating    within    the    [six-month]    period.                                                               
Representative  Gruenberg  said  he  believes  that  [withholding                                                               
checks  until opinions  or decisions  are  completed or  decided]                                                               
REPRESENTATIVE SAMUELS  pointed out that there  are justices with                                                               
work  that is  over  six  months old,  but  who  have signed  the                                                               
affidavit and  received payment.   For those  cases, there  is no                                                               
REPRESENTATIVE  GRUENBERG opined  that the  remedy would  be with                                                               
the Commission on Judicial Conduct  because that's filing a false                                                               
affidavit, which is against the judicial tenets.                                                                                
REPRESENTATIVE GARA agreed  that there are times  when the judges                                                               
have waited too  long to issue opinions.  However,  one must keep                                                               
in mind that  these judges have numerous opinions  before them to                                                               
decide.   He suggested  that the committee  hear from  the Alaska                                                               
Court System (ACS) on this issue.                                                                                               
REPRESENTATIVE GARA  said he believes  the legislation is  a good                                                               
idea, although he has a couple  of concerns.  He pointed out that                                                               
once   the  right   of  unreasonable   delay  is   created,  very                                                               
sophisticated  parties  are going  to  try  to  use this  in  the                                                               
administrative  process.    In  order to  prevent  abuse  of  the                                                               
process,  Representative   Gara  suggested  the   sponsor  exempt                                                               
corporate  tax  and  oil  revenue   cases  from  the  legislation                                                               
because, in  a billion-dollar case,  the parties will  attempt to                                                               
find any  possible advantage in  order to avoid or  delay paying.                                                               
Representative Gara  recalled a  case involving the  Amerada Hess                                                               
Corporation,  which  was  a  multibillion-dollar  case  in  which                                                               
parties  on  both sides  did  everything  possible to  obtain  an                                                               
advantage, and  said he didn't want  to see this happen  under HB
Number 1929                                                                                                                     
REPRESENTATIVE GARA predicted that  once this legislation passes,                                                               
many  of these  motions  will be  filed in  superior  court.   He                                                               
predicted  that.   If this  is  allowed too  liberally, it  could                                                               
delay  the  court   process  further.    He   asked  whether  the                                                               
"unreasonable   delay"   language   could  be   maintained   with                                                               
additional  language specifying  a minimal  amount of  time [that                                                               
would have to pass] before the relief in court could be filed.                                                                  
REPRESENTATIVE WEYHRAUCH  indicated that  the timeline  should be                                                               
on  a case-by-case  basis.   Furthermore, having  exemptions will                                                               
make  it difficult  to establish  a state  policy with  regard to                                                               
which agencies should issue decisions quickly.                                                                                  
REPRESENTATIVE  GARA  acknowledged  that  perhaps  such  language                                                               
isn't  necessary.   He  noted  that a  provision  [in Version  D]                                                               
allows one  to request an alternative  dispute-resolution process                                                               
in superior court.                                                                                                              
REPRESENTATIVE  WEYHRAUCH  clarified  that   the  intent  of  the                                                               
legislation is  to provide a method  by which to force  an agency                                                               
to issue a decision once it  has been pending for an unreasonable                                                               
time.  He went on to say:                                                                                                       
     I think  that the  key point here  is ...  the judicial                                                                    
     inquiry  that's going  to have  to take  place in  this                                                                    
     kind  of thing.   When  was  the case  filed before  an                                                                    
     administrative agency; how complex  was the record; how                                                                    
     long has  the case been  under advisement; is  this the                                                                    
     best forum to re-litigate this  case ...; or do we need                                                                    
     time  for the  administrative agency  to cook  on this;                                                                    
     and  let's  hear  from  the agency,  on  some  sort  of                                                                    
     affidavit,  that they're  diligently  working on  this.                                                                    
     [The judge will  say], "I'm going ... to  deny this and                                                                    
     I'm going to put ...  the case under advisement for six                                                                    
     months  from  today,  and  I want  a  notice  from  the                                                                    
     parties [regarding where the case  is at that point; If                                                                    
     it's still ... being delayed  at that point, then we'll                                                                    
     have another  hearing in  this court  ... to  hear from                                                                    
     the agency  and the parties  about the delay,  and then                                                                    
     I'll make a decision at that point."                                                                                       
     So I  think it's  in the  reasonable discretion  of the                                                                    
     superior court  judge not to clutter  the calendar with                                                                    
     these  kind of  agency appeals,  but to  ... [let]  the                                                                    
     agency  act  on  these  kind  of  appeals  [in]  ...  a                                                                    
     relatively  timely  way  ....     I  think  that  every                                                                    
     reasonable judge  knows that  these agencies  are going                                                                    
     to have some  backlog of cases to deal  with, just like                                                                    
     they do.                                                                                                                   
REPRESENTATIVE  OGG remarked  that  this provides  a nice  escape                                                               
valve.   He further remarked  that he wishes  there was a  way to                                                               
urge the federal judiciary to such quick action.                                                                                
REPRESENTATIVE WEYHRAUCH  said he has worked  with administrative                                                               
agencies who say they can't help  and specify that the agency has                                                               
to  be asked  for  an  expedited decision,  but  that doesn't  go                                                               
anywhere.    He   concluded  by  stating  that   he  agrees  with                                                               
Representative Ogg.                                                                                                             
CHAIR McGUIRE  recalled dealing with the  regulations surrounding                                                               
shellfish farming.   In 1984,  the Aquatic Farm Act  was adopted;                                                               
it made  it clear  that aquatic  farming was  allowed so  long as                                                               
certain criteria  were met.   However, in 2002, some  issues were                                                               
still not  resolved.  Chair  McGuire characterized [HB 533]  as a                                                               
good tool,  but said she  hopes that it  doesn't have to  be used                                                               
Number 2324                                                                                                                     
DAVID STANCLIFF,  Staff to Senator Gene  Therriault, Alaska State                                                               
Legislature, on behalf  of Senator Therriault, the  sponsor of SB
333, companion  bill to  HB 533, informed  the committee  that he                                                               
has some statistics that might  provide some comfort.  He pointed                                                               
out that [the  legislation] is building standards  with regard to                                                               
a  reasonable  timeframe in  order  to  provide guidance  to  the                                                               
courts.   There  is a  diversity  of timeframes  that range  from                                                               
those that  are required by  statute, those that are  required by                                                               
federal law, and others that are open-ended.                                                                                    
Number 2345                                                                                                                     
JAN DeYOUNG, Assistant Attorney  General, Labor and State Affairs                                                               
Section,  Civil Division  (Anchorage), Department  of Law  (DOL),                                                               
informed   the  committee   that  she   handles  employment   and                                                               
administrative law  issues at  the DOL.   She noted  her previous                                                               
experience as  a hearing officer  for the state for  seven years.                                                               
Ms.  DeYoung mentioned  that the  DOL has  been working  with the                                                               
bill sponsor to  address some of the department's  concerns.  The                                                               
DOL  is  pleased to  see  some  of  that work  incorporated  into                                                               
[Version  D], she  remarked,  because a  chief  concern with  the                                                               
original   legislation  was   the  absence   of  notice   to  the                                                               
administrative agency that an individual  involved in the hearing                                                               
was going to go to court to seek a remedy for delay.                                                                            
TAPE 04-47, SIDE B                                                                                                            
Number 2380                                                                                                                     
MS. DeYOUNG relayed,  however, that the DOL  had also recommended                                                               
a minimum  of 30  days before  the individual  could go  to court                                                               
after  providing notice;  that 30-day  timeframe would  allow the                                                               
agency  the opportunity  to  do  respond to  the  concern and  to                                                               
discover the  particular harm being  caused to the  individual by                                                               
the delay  in the  hearing.   She pointed  out that  the judicial                                                               
process isn't going to be fast,  so if a remedy could be obtained                                                               
within 30  days, the individual  would probably fair  much better                                                               
than through  assistance from  the court.   Ms. DeYoung  said she                                                               
doesn't  believe the  15 days  specified in  Version D  is enough                                                               
time  to  allow   the  agency  to  "clean   house";  the  [15-day                                                               
timeframe]  will be  a problem,  particularly for  those agencies                                                               
whose decision  makers are volunteers on  boards and commissions.                                                               
In the aforementioned situation, it  could simply take the entire                                                               
15 days to get in touch with and poll the members.                                                                              
MS.  DeYOUNG reiterated  the DOL's  appreciation  for the  notice                                                               
provision,  as   well  as  for   the  change  in   language  from                                                               
"significant"  to "immediate"  because it  will provide  guidance                                                               
with  regard  to  what  might  be  required  for  the  courts  to                                                               
Number 2273                                                                                                                     
MS. DeYOUNG then turned to the  actual remedies [on page 2, lines                                                               
20-25] that the judge would be  able to award if it appeared that                                                               
there  was  unreasonable  delay.   Enjoining  the  administrative                                                               
proceeding and  determining the matter  would be unusual  for the                                                               
court  to  do,  and  it  remains  unclear  how  the  court  would                                                               
substitute  itself   for  the  agency.     She   questioned  what                                                               
procedures the court would follow  if there is already a hearing.                                                               
In many cases, the courts don't have  the power to do some of the                                                               
things agencies do.                                                                                                             
MS.  DeYOUNG turned  to  the ability  of the  judge  to order  an                                                               
administrative matter  to be handled  by another form  of dispute                                                               
resolution.      Normally,   alternate  dispute   resolution   is                                                               
voluntary.    Furthermore,  parties  often  agree  to  share  the                                                               
expense  when there  is agreement  to proceed  with an  alternate                                                               
form of dispute resolution.  She  inquired as to how a compulsory                                                               
alternate dispute  resolution would  actually work and  who would                                                               
bear the expense of it.                                                                                                         
MS. DeYOUNG  stated that there  are already  other opportunities,                                                               
at least  for some administrative  agencies, to  address concerns                                                               
about delay.   Therefore,  she said,  the DOL  questions possible                                                               
duplication  and inconsistencies  with  some  of those  remedies.                                                               
For  example,  the  administrative procedure  that  provides  the                                                               
superior court  the authority to enjoin  an administrative action                                                               
beyond the scope  of the agency's administrative  powers also has                                                               
the  ability  to  order  the  administrative  agency  to  act  or                                                               
initiate action when it's withholding  that action.  At least for                                                               
Administrative  Procedure  Act  (APA)  agencies,  there  is  some                                                               
recourse  already in  statute  to address  some  of the  concerns                                                               
raised.  For  those agencies not subject to the  APA, statute has                                                               
provisions  addressing  delay and  undue  delay.   Therefore,  it                                                               
would be ideal  if this legislation could  coordinate [with those                                                               
statutes] in  order to make  sure that the remedies  fit together                                                               
without overlap.                                                                                                                
MS. DeYOUNG,  recalling an earlier  comment that it's  not always                                                               
in the  interest of an  individual or a non-government  party for                                                               
the  proceeding to  be decided  quickly,  she said  she found  it                                                               
interesting  to note  that this  legislation is  limited to  non-                                                               
government parties,  because state and political  subdivisions do                                                               
appear as parties  before state agencies.   Ms. DeYoung expressed                                                               
her appreciation to the sponsor and the committee.                                                                              
Number 2098                                                                                                                     
REPRESENTATIVE GRUENBERG offered his  belief that legislation [on                                                               
page  2, line  31, through  page 3,  line 3]  changes the  Alaska                                                               
Rules  of  Appellate  Procedure because  it  makes  the  judicial                                                               
decision not  to issue an order  and keeps the proceeding  in the                                                               
administrative   agency  a   final  "appealable"   order.     The                                                               
aforementioned  will  have a  major  impact  on the  practice  of                                                               
appellate  law   in  so  far   as  this  involves   appeals  from                                                               
administrative  agencies.   He suggested  that if  this provision                                                               
[necessitates] an  amendment to one  of the appellate  rules, the                                                               
bill ought  to be  held over  in order  to obtain  information on                                                               
this   matter    from   someone   practicing   in    this   area.                                                               
Representative  Gruenberg  posited  that the  real  question  is:                                                               
What  is  a  final,  "appealable" order  from  an  administrative                                                               
MR. STANCLIFF  noted his appreciation for  the DOL's suggestions.                                                               
He explained  that the  15-day limit  is based  on the  fact that                                                               
with  most administrative  communications  with  the public,  the                                                               
agency  reserves  30 days  and  requires  the public  to  respond                                                               
within 15  days.   In a  memorandum laying  out concerns,  it was                                                               
brought out that it shouldn't take  an agency 30 days to agree to                                                               
work on  a matter once a  party has approached the  agency saying                                                               
it will exercise this option if  [no action is taken].  He agreed                                                               
that the  language change from ["significant"]  to "immediate" is                                                               
a  good change.     Mr.  Stancliff said,  "On some  of the  other                                                               
issues, we don't think that the  court system will have a problem                                                               
interpreting how  they want  to deal with  the dispute  at hand."                                                               
He remarked  that Mr.  Wooliver testified  in a  Senate committee                                                               
that in most  cases, it's anticipated that the  courts are simply                                                               
going to  say they agree  that it's taking  a long time,  and ask                                                               
the agency to hurry things up.                                                                                                  
MR. STANCLIFF  opined that knowing  this legislation is  in place                                                               
will change the  way agencies do business.   Regarding a possible                                                               
court rule change,  he said that the drafters  were instructed to                                                               
not include anything in the bill  that would require a court rule                                                               
CHAIR  McGUIRE  asked  if  the   15-day  standard  to  which  Mr.                                                               
Stancliff referred was 15 business days or just 15 days.                                                                        
MR. STANCLIFF explained  that the 15 days would begin  on the day                                                               
that the  envelope goes into the  postal system.  He  relayed his                                                               
belief that  [Version D] met in  the middle with the  DOL and met                                                               
its primary goals in this  compromise, but acknowledged that it's                                                               
the committee's prerogative to choose to go further.                                                                            
Number 1854                                                                                                                     
CHAIR  McGUIRE  asked whether  there  is  any concern  that  once                                                               
notice is given, there could be a threat of retribution.                                                                        
MR. STANCLIFF  said he hopes such  wouldn't occur.  He  also said                                                               
that  he could  see how  30 days  could allow  the department  to                                                               
prepare a case, knowing it was going  to court.  He said it would                                                               
also allow  time to  poll the boards  and commissions,  though in                                                               
today's electronic world, 30 days seems more than adequate.                                                                     
REPRESENTATIVE  GARA opined  that  if  the intent  is  to send  a                                                               
message to the  agency to obtain a decision, then  a 15-day limit                                                               
would  probably back  the  agency  into a  corner.   He  pondered                                                               
whether 30 days  would, in a more complex case,  provide time for                                                               
the agency to issue a decision.                                                                                                 
MR. STANCLIFF acknowledged that to be a consideration.                                                                          
REPRESENTATIVE GRUENBERG  noted that Rule 42(c)(3)  of the Alaska                                                               
Rules of Civil Procedure reads in part:                                                                                         
     Notice of  change of  judge is  timely if  filed before                                                                    
     the commencement  of trial and  within five  days after                                                                    
     notice that  the case has  been assigned to  a specific                                                                    
REPRESENTATIVE  GRUENBERG recalled  that  the  courts have  ruled                                                               
that  a person  looses his/her  right if  he/she hasn't  actually                                                               
filed the  document in court on  that date.  Therefore,  it's not                                                               
enough to  put it  in the  mail on that  date.   This legislation                                                               
refers to  providing the  state agency  written notice,  which he                                                               
pointed out  may be read  as having  filed the document  with the                                                               
agency on  that date.   This is a  very ambiguous term,  he said.                                                               
Therefore, if the  intent is to have mailed  the [document], then                                                               
that should be specified so that there is no question.                                                                          
REPRESENTATIVE  GRUENBERG referred  to Mr.  Stancliff's testimony                                                               
that there  is no intent to  impact the court rules.   He offered                                                               
his belief that the language on  page 2, line 31, through page 3,                                                               
line 3,  seems problematic because  it may be  saying, "appealing                                                               
the  failure of  the court  to provide  relief".   Therefore, the                                                               
language,  "as  if  the  person  had not  filed  a  petition"  is                                                               
meaningless  because  the  appeal   is  occurring  because  of  a                                                               
decision by the superior court.                                                                                                 
Number 1634                                                                                                                     
REPRESENTATIVE OGG said the language  on page 2, line 31, through                                                               
page 3, line  3, seems to say that if  the superior court decides                                                               
the  party isn't  eligible for  judicial relief  under subsection                                                               
(a) of  Section 2, then the  party has the right  to continue the                                                               
administrative procedure and make any  other appeal it has to the                                                               
court.  He surmised that  Representative Gruenberg is saying that                                                               
if the  superior court  makes a decision  that is  improper under                                                               
this statute,  then the party would  also have the right  to take                                                               
the superior  court decision through  the [supreme]  court route.                                                               
He  emphasized  that  [the  party]  isn't  denied  anything,  and                                                               
therefore he finds the language to be clear.                                                                                    
REPRESENTATIVE GRUENBERG  highlighted the use of  the term "right                                                               
of  appeal", and  said,  "You wouldn't  necessarily  be taking  a                                                               
right  of appeal  from that,  you'd be  taking a  petition for  a                                                               
review."    The decision  of  the  superior  court to  allow  the                                                               
administrative agency to  go forward isn't a  final decision, and                                                               
therefore "you can't quote appeal from  that, you can only take a                                                               
petition for review," he added.                                                                                                 
MR. STANCLIFF offered  to research this issue, and  noted that he                                                               
is open to a better way of achieving the earlier-stated intent.                                                                 
[HB 533, Version D, was held over.]                                                                                             
Number 1555                                                                                                                     
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 4:00 p.m.                                                                 

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