Legislature(2015 - 2016)CAPITOL 120

02/20/2015 01:00 PM JUDICIARY

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                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                       February 20, 2015                                                                                        
                           1:05 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Gabrielle LeDoux, Chair                                                                                          
Representative Wes Keller, Vice Chair                                                                                           
Representative Charisse Millett                                                                                                 
Representative Matt Claman                                                                                                      
Representative Max Gruenberg                                                                                                    
Representative Neal Foster                                                                                                      
MEMBERS ABSENT                                                                                                                
Representative Bob Lynn                                                                                                         
COMMITTEE CALENDAR                                                                                                            
HOUSE BILL NO. 83                                                                                                               
"An   Act  relating   to  collecting   information  about   civil                                                               
litigation  by  the  Alaska   Judicial  Council;  repealing  Rule                                                               
41(a)(3), Alaska Rules  of Civil Procedure, and  Rules 511(c) and                                                               
(e), Alaska  Rules of Appellate  Procedure; and providing  for an                                                               
effective date."                                                                                                                
     - HEARD & HELD                                                                                                             
HOUSE BILL NO. 15                                                                                                               
"An Act  relating to  credits toward  a sentence  of imprisonment                                                               
and to good time deductions."                                                                                                   
     - HEARD & HELD                                                                                                             
HOUSE BILL NO. 79                                                                                                               
"An   Act  relating   to  controlled   substances;  relating   to                                                               
marijuana; relating  to driving motor  vehicles when there  is an                                                               
open marijuana container; and providing for an effective date."                                                                 
     - SCHEDULED BUT NOT HEARD                                                                                                  
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: HB 83                                                                                                                   
SHORT TITLE: JUDICIAL COUNCIL: CIVIL LITIGATION INFO                                                                            
SPONSOR(s): REPRESENTATIVE(s) LEDOUX                                                                                            
01/28/15       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/28/15       (H)       JUD                                                                                                    
02/06/15       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/06/15       (H)       <Bill Hearing Canceled>                                                                                
02/13/15       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/13/15       (H)       <Bill Hearing Canceled>                                                                                
02/20/15       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB 15                                                                                                                   
SHORT TITLE: CREDITS FOR TIME SERVED/GOOD TIME                                                                                  
SPONSOR(s): REPRESENTATIVE(s) WILSON                                                                                            
01/21/15       (H)       PREFILE RELEASED 1/9/15                                                                                
01/21/15       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/21/15       (H)       STA, FIN                                                                                               
01/23/15       (H)       STA REFERRAL REMOVED                                                                                   
01/23/15       (H)       JUD REFERRAL ADDED BEFORE FIN                                                                          
02/18/15       (H)       BILL REPRINTED 2/16/15                                                                                 
02/20/15       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
WITNESS REGISTER                                                                                                              
CLARK BICKFORD, Staff                                                                                                           
Representative Gabrielle LeDoux                                                                                                 
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented HB 83 on behalf of Representative                                                              
LeDoux, prime sponsor.                                                                                                          
SUZANNE DIPIETRO, Executive Director                                                                                            
Alaska Judicial System                                                                                                          
Alaska Court System                                                                                                             
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During the hearing on HB 83, answered                                                                    
NANCY MEADE, General Counsel                                                                                                    
Central Office                                                                                                                  
Office of the Administrative Director                                                                                           
Alaska Court System                                                                                                             
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During the hearing on HB 83, answered                                                                    
BREWSTER JAMIESON, Attorney                                                                                                     
Lane Powell LLC                                                                                                                 
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During the hearing on HB 83, testified in                                                                
KEN JACOBUS, Attorney                                                                                                           
Law Offices of Kenneth P. Jacobus                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During the hearing on HB 83, testified in                                                                
SARAH BADTEN, Attorney                                                                                                          
Groh, Eggers, LLC                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During the hearing on HB 83, testified in                                                                
BILLY HOUSER, Probation Officer                                                                                                 
Division of Probation and Parole                                                                                                
Department of Corrections                                                                                                       
Palmer, Alaska                                                                                                                  
POSITION STATEMENT:  During the hearing on HB 15, testified                                                                   
regarding his concerns.                                                                                                         
DOUGLAS MOODY, Deputy Public Defender                                                                                           
Criminal Division                                                                                                               
Central Office                                                                                                                  
Public Defender Agency                                                                                                          
Department of Administration                                                                                                    
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During the hearing on HB 15, testified in                                                                
RICK SVOBODNY, Deputy Attorney General                                                                                          
Central Office                                                                                                                  
Criminal Division                                                                                                               
Department of Law                                                                                                               
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  During the hearing on HB 15, testified                                                                   
regarding the concerns of the Department of Law.                                                                                
ACTION NARRATIVE                                                                                                              
1:05:00 PM                                                                                                                    
CHAIR  GABRIELLE  LEDOUX  called  the  House  Judiciary  Standing                                                             
Committee meeting to order at  1:05 p.m.  Representatives Foster,                                                               
Millett, Claman,  Gruenberg, Keller,  and LeDoux were  present at                                                               
the call to order.                                                                                                              
         HB  83-JUDICIAL COUNCIL: CIVIL LITIGATION INFO                                                                     
1:06:10 PM                                                                                                                    
CHAIR LEDOUX announced that the  first order of business would be                                                               
HOUSE  BILL NO.  83 "An  Act relating  to collecting  information                                                               
about civil litigation by the  Alaska Judicial Council; repealing                                                               
Rule 41(a)(3), Alaska Rules of  Civil Procedure, and Rules 511(c)                                                               
and (e), Alaska  Rules of Appellate Procedure;  and providing for                                                               
an effective date."                                                                                                             
1:06:28 PM                                                                                                                    
The committee took a brief at ease.                                                                                             
CHAIR  LEDOUX passed  the  gavel  to Vice  Chair  Keller for  the                                                               
hearing on HB 83.                                                                                                               
1:06:50 PM                                                                                                                    
CLARK  BICKFORD, Staff,  Representative Gabrielle  LeDoux, Alaska                                                               
State  Legislature, offered  that  the bill  repeals  a 1997  law                                                               
relating  to  the  collection   of  information  regarding  civil                                                               
litigation  by the  Alaska Judicial  Council, which  is a  widely                                                               
forgotten and ignored practice amongst  the legal community.  For                                                               
instance,  he  explained,  from  2001-2010  only  13  percent  of                                                               
litigation  reports  have  been  filed.    He  offered  that  the                                                               
majority of the  legal community and the  Alaska Judicial Council                                                               
(AHC) is in favor of this repeal and urged support for the bill.                                                                
REPRESENTATIVE CLAMAN asked  whether there was a  time of greater                                                               
MR. BICKFORD, in response to  Representative Claman, stated there                                                               
was  more compliance  from the  legal  community at  the time  of                                                               
passage, and gradually that compliance  dropped dramatically.  He                                                               
pointed  out  that during  the  above-mentioned  nine years  only                                                               
20,000 of the 177,000 open civil cases were reported.                                                                           
1:09:23 PM                                                                                                                    
VICE CHAIR  KELLER assumed there  was legislative intent  for the                                                               
original bill and asked for the legislative history.                                                                            
1:09:50 PM                                                                                                                    
MR. BICKFORD said  the difficulty of lawyers  not was unforeseen,                                                               
and the AJC  does not have resources to  [encourage attorneys] to                                                               
report every 177,000 cases.                                                                                                     
1:10:50 PM                                                                                                                    
VICE CHAIR KELLER questioned why  years have passed without data,                                                               
as it is a law.                                                                                                                 
1:11:11 PM                                                                                                                    
SUZANNE  DIPIETRO, Executive  Director,  Alaska Judicial  System,                                                               
Alaska Court System,  advised that the law was passed  as part of                                                               
tort reform  legislation in 1997.   The items in  the legislation                                                               
were recommended by  the Governor's Advisory Task  Force on Civil                                                               
Justice Reform and,  she noted, this task force  was formed after                                                               
Governor  Tony Knowles  vetoed tort  reform legislation  that had                                                               
passed  in 1995-1996.   The  task force  made recommendations  to                                                               
improve the  efficiency and  fairness of  civil litigation.   She                                                               
remarked that during  the course of deliberation  it became clear                                                               
to  the task  force  there was  no data  regarding  the size  and                                                               
amount of  an average  jury verdict,  average settlement,  or the                                                               
percentage of  times a  plaintiff won versus  a defendant.   When                                                               
the legislation  passed, the provision  intended that  the Alaska                                                               
Judicial  Council (AJC)  would  collect  information and  provide                                                               
reports to  the legislature  so it could  monitor the  effects of                                                               
what it had done in the tort reform legislation, she explained.                                                                 
The AJC  issued three  reports, a  preliminary report  soon after                                                               
the  statute   was  passed  with   some  information,   and  when                                                               
information was rolling it issued  the 2001 report which included                                                               
the amount of  the average settlement, and  civil litigation data                                                               
information.   Unfortunately, she related, due  to the difficulty                                                               
in obtaining data,  the AJC reviewed court case  files and pulled                                                               
the numbers of the cases it should have received reports.                                                                       
1:13:39 PM                                                                                                                    
MS. DIPIETRO stated that AJC  realized only a fraction of reports                                                               
had  been filed  and  sent letters  to all  of  the parties  that                                                               
should have  filed information.   Through that  laborious process                                                               
the AJC was  able to achieve approximately a  50 percent response                                                               
rate.   She  described it  as the  highest response  rate it  had                                                               
received and, she opined, it was  enough information to put out a                                                               
report that was not misleading.   In subsequent years, she noted,                                                               
the reporting  rate fell  and for example,  in FY13  court system                                                               
data showed  6,113 cases that  should have received  a settlement                                                               
report and received  1,086 reports, only 18 percent.   She opined                                                               
that it  would not have been  responsible to publish a  report at                                                               
18 percent data.                                                                                                                
1:16:10 PM                                                                                                                    
VICE CHAIR KELLER remarked that  he just received the 2001 Alaska                                                               
Judicial  Council  report  and  has not  had  an  opportunity  to                                                               
evaluate  the data.    He  questioned whether  there  is a  valid                                                               
reason to "get rid of" a law wherein compliance is difficult.                                                                   
MS.  DIPIETRO   offered  that  the   AJC  has   a  constitutional                                                               
responsibility to  conduct studies to improve  the administration                                                               
of justice  for the  legislature.   She advised  she is  ready to                                                               
conduct any study  the legislature would like  conducted, such as                                                               
the civil case data information.                                                                                                
1:17:51 PM                                                                                                                    
VICE CHAIR  KELLER pointed  to the implication  that the  data is                                                               
not  valuable  as the  AJC  is  bringing  this bill  forward  and                                                               
supporting  it.   He  opined  that his  first  impression is  the                                                               
information is  very valuable and  offered concern that  the lack                                                               
of information to the legislature is due to non-compliance.                                                                     
MS. DIPIETRO responded in the  affirmative, that the AJC has only                                                               
received 18 percent  with a lot of information  outstanding.  "As                                                               
a representative  of the  AJC, I'm not  really taking  a position                                                               
one way  or the other," she  said, and that she  is testifying to                                                               
advise of the  difficulties, and for the committee  to direct the                                                               
1:19:00 PM                                                                                                                    
CHAIR LEDOUX clarified  that this bill was not  put forth through                                                               
the Alaska Judicial Council but was  suggested to her by a number                                                               
of individuals from  the private bar.  She  questioned the amount                                                               
of money would  be necessary to put teeth into  the law requiring                                                               
parties to report.                                                                                                              
1:19:48 PM                                                                                                                    
MS.  DIPIETRO responded  that she  could work  something up,  and                                                               
reiterated that the 2001 report required  quite a bit of time and                                                               
effort in collecting the data.                                                                                                  
1:20:17 PM                                                                                                                    
CHAIR LEDOUX surmised  that the AJC went through  the records [in                                                               
order  to prepare  the 2001  report] because  attorneys were  not                                                               
submitting the  data.  She questioned  what it would take  in the                                                               
way  of law,  or a  budget, to  enforce the  attorneys to  submit                                                               
data.     She  also  questioned   who  would  be  in   charge  of                                                               
1:20:42 PM                                                                                                                    
MS. DIPIETRO,  in response  to Chair LeDoux,  stated an  issue is                                                               
that  there  is  no  enforcement  mechanism  in  the  law.    She                                                               
indicated she  did not know  what an enforcement  mechanism could                                                               
be, and reiterated  that when the AJC sent  letters and reminders                                                               
it only achieved a 50 percent compliance rate.                                                                                  
1:21:11 PM                                                                                                                    
VICE CHAIR  KELLER questioned  whether the AJC  would be  able to                                                               
devise some  incentive ideas and  actually make money  instead of                                                               
cost  money and  indicated there  was no  enforcement suggestion,                                                               
but rather a suggestion to change the law.                                                                                      
1:21:44 PM                                                                                                                    
REPRESENTATIVE  CLAMAN  questioned  what   the  data  would  show                                                               
regarding the impact of the tort reform legislation.                                                                            
MS. DIPIETRO  responded that  the AJC performed  a study  of tort                                                               
jury verdicts (appendix  to the [2001] report)  and subsequent to                                                               
realizing  there  were not  many  large  tort jury  verdicts,  it                                                               
shifted its focus to the idea  of settlement.  She explained that                                                               
the  hypothesis being  that because  there are  large settlements                                                               
paid  out  by  insurance  companies, this  impacts  the  cost  of                                                               
insurance  and causes  the cost  of insurance  to go  up and  the                                                               
availability  of  insurance  to  go  down.    The  Department  of                                                               
Commerce,  Community,  and   Economic  Development,  Division  of                                                               
Insurance, and the  AJC attempted to answer what  effect, if any,                                                               
the settlement of  civil cases is having on  the availability and                                                               
cost of insurance.                                                                                                              
1:23:41 PM                                                                                                                    
REPRESENTATIVE CLAMAN asked what the studies revealed.                                                                          
MS.  DIPIETRO offered  that the  Division of  Insurance issued  a                                                               
couple of reports  in its effort to comply with  that request and                                                               
was unable to conclude one way or the other.                                                                                    
REPRESENTATIVE  CLAMAN surmised  that the  theory of  tort reform                                                               
was  that there  were jury  verdicts in  the millions  of dollars                                                               
driving up insurance  costs, but the studies of  jury verdicts in                                                               
Alaska actually showed there were not huge jury verdicts.                                                                       
MS.  DIPIETRO answered  "that is  correct,  in the  memo and  the                                                               
report, yes."                                                                                                                   
1:24:26 PM                                                                                                                    
REPRESENTATIVE  CLAMAN  further   questioned  what  the  research                                                               
performed in  the years following tort  reform revealed regarding                                                               
MS. DIPIETRO  explained that  the 2001  report contains  the most                                                               
complete information on settlements  which revealed "not all that                                                               
many large settlements."                                                                                                        
REPRESENTATIVE CLAMAN  asked whether  settlements were  higher or                                                               
lower than jury verdicts.                                                                                                       
MS. DIPIETRO responded that she  could not recall, and reiterated                                                               
that the data was only 50 percent of the cases.                                                                                 
1:25:33 PM                                                                                                                    
VICE CHAIR  KELLER noted that  the description of  the settlement                                                               
or  judgment  is  only  one  aspect  of  the  information  to  be                                                               
reported.   He related that  the other things erased,  should the                                                               
law  be  repealed,  is  information  regarding  the  court  civil                                                               
justice    processes,    case   processing    information,    and                                                               
characteristics of the  litigation and parties.   For example, he                                                               
said  he  would  be  interested  in how  many  civil  cases  were                                                               
frivolous, how much  court time is taken up  in civil litigation,                                                               
what percentage, and  what the information is  based upon without                                                               
the [other 50 percent] data.                                                                                                    
1:26:31 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  moved   to  adopt  proposed  committee                                                               
substitute (CS) for HB 83,  Version 29-LS0414\H, Wallace, 2/5/15,                                                               
as the  working document.   There being  no objection,  Version H                                                               
was before the committee for discussion.                                                                                        
REPRESENTATIVE GRUENBERG surmised  that the enforcement mechanism                                                               
could be grounds  for discipline such as  an individual violating                                                               
a civil rule in statute.                                                                                                        
MS.  DIPIETRO  clarified that  it  would  be discipline  for  the                                                               
attorneys through the  Alaska Bar Association, but  this law also                                                               
applies to unrepresented litigants.                                                                                             
1:28:14 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG,  in  reference   to  the  Mr.  Jacobus                                                               
supporting letter  in each  member's packet,  said it  reads that                                                               
this  law costs  attorney time  and that  most plaintiff  lawyers                                                               
work on a contingency basis.   The defense bar is generally on an                                                               
hourly  basis,  so  the  clock  would  run  for  the  clients  in                                                               
preparation of these reports, he remarked.                                                                                      
MS. DIPIETRO replied "correct."                                                                                                 
1:28:43 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  requested an estimate of  the amount of                                                               
time spent filling out a report with the hourly rate.                                                                           
MS. DIPIETRO replied that the form  was streamlined to make it as                                                               
easy  as possible  in order  to  evaluate the  minimum amount  of                                                               
information in  the best manner  possible.  She offered  that she                                                               
had  received an  email  from  a law  firm  suggesting  it was  a                                                               
REPRESENTATIVE  GRUENBERG  pointed  out  that  the  bill  repeals                                                               
certain rules  of court.   He opined  the protocol in  matters of                                                               
comity ...  when dealing with a  change of a court  rule would be                                                               
to request the court system to repeal its rule.                                                                                 
MS. DIPIETRO advised  she could not respond to  the protocol, but                                                               
the  rules require  an  attorney to  certify  they submitted  the                                                               
information to the AJC, or promulgated  as a way to implement the                                                               
statute.  She deferred the response to Ms. Nancy Meade.                                                                         
1:31:08 PM                                                                                                                    
CHAIR  LEDOUX  asked  whether the  law  requiring  reporting  was                                                               
enacted after tort reform legislation.                                                                                          
MS. DIPIETRO responded "that is correct."                                                                                       
CHAIR LEDOUX questioned  how a study would be  performed when the                                                               
information is available after [the law was enacted].                                                                           
1:31:50 PM                                                                                                                    
MS. DIPIETRO  articulated that  the AJC does  not have  base line                                                               
data  so it  could not  determine  whether prior  to tort  reform                                                               
settlements  were   a  certain   amount  or  after   tort  reform                                                               
settlements  were a  certain amount.   She  said the  thought was                                                               
that  the AJC  could report  that immediately  after tort  reform                                                               
things were a certain way, and  five years later had changed, and                                                               
ten years later had changed again.   She remarked it would not be                                                               
the type of analysis  to prove a causation as it  would just be a                                                               
1:32:30 PM                                                                                                                    
VICE CHAIR KELLER  said that part of the  AJC's responsibility is                                                               
offering recommendations to  judges, and he asked  whether any of                                                               
the non-compliant attorneys became  judges and asked Ms. DiPietro                                                               
to report back.                                                                                                                 
MS. DIPIETRO replied  "I actually do not know the  answer to that                                                               
1:33:03 PM                                                                                                                    
REPRESENTATIVE CLAMAN  noted that part  of the rule  was amending                                                               
either the  court rules  or attorney  rules relating  to attorney                                                               
client privilege  and whether or not  disclosing this information                                                               
violated the attorney client  privilege, particularly relating to                                                               
settlements.   He asked  whether anyone  tested that  question in                                                               
court,  whether lawyers  were unwilling  to  report because  they                                                               
believe it is an attorney-client violation.                                                                                     
MS.  DIPIETRO  responded  that  her knowledge  no  one  has  ever                                                               
challenged that  issue in  court.   She said  she has  heard that                                                               
some attorneys object  to the idea of  disclosing the information                                                               
on that ground, but described her statement as hearsay.                                                                         
1:34:25 PM                                                                                                                    
REPRESENTATIVE   CLAMAN  referred   to  Representative   Keller's                                                               
question of  sitting judges who,  when in practice,  had complied                                                               
every time, sometimes, or never.                                                                                                
MS. DIPIETRO advised  the AJC would have to go  back to the court                                                               
and obtain the  list of cases that had been  dismissed or settled                                                               
and determine  who the  attorneys were and  whether a  report was                                                               
submitted.  "That would be quite the tricky research project."                                                                  
VICE  CHAIR KELLER  advised Representative  Claman that  he could                                                               
work it out  whether he wanted the information,  but his question                                                               
was "rhetorical" because he believes it was ignored.                                                                            
REPRESENTATIVE GRUENBERG  called the committee's attention  to AS                                                               
09.68.130(b), which  is the statute  that will be  repealed under                                                               
the bill, which read:                                                                                                           
     (b) The  information received by the  council under (a)                                                                    
     of this section is  confidential. This restriction does                                                                    
     not prevent the disclosure  of summaries and statistics                                                                    
     in a manner  that does not allow  the identification of                                                                    
     particular cases or parties.                                                                                               
REPRESENTATIVE GRUENBERG  offered that  many settled  civil cases                                                               
are confidential, but are not confidential as to statistics.                                                                    
1:36:50 PM                                                                                                                    
NANCY  MEADE,  General Counsel,  Central  Office,  Office of  the                                                               
Administrative  Director,  Alaska   Court  System,  responded  to                                                               
Representative  Gruenberg  that  the legislature  does  have  the                                                               
right   to  change   court  rules   of  practice   and  procedure                                                               
constitutionally,  and  that it  takes  place  several times  per                                                               
session.    She opined  it  is  an  appropriate exercise  of  the                                                               
legislature's authority,  and in  this instance, those  rules are                                                               
in the  Alaska Rules of  Court solely due  to the passage  of the                                                               
statute.  In  the event the statute and court  rules are repealed                                                               
it would  not be problematic  from the  court's point of  view to                                                               
also repeal the court rules, she explained.                                                                                     
REPRESENTATIVE GRUENBERG  opined that if the  legislature changed                                                               
it to  a request  of court,  it would  not be  a rule  change and                                                               
would not require two-thirds vote.                                                                                              
MS.  MEADE   responded  that   Legislative  Legal   and  Research                                                               
Services,  who deals  with statutory  changes,  always checks  to                                                               
determine  whether  there would  at  least  be an  indirect  rule                                                               
amendment, if not a  direct one.  She stated it  is their call as                                                               
to whether statutory changes do impact rules.                                                                                   
VICE CHAIR KELLER opened public testimony.                                                                                      
1:39:24 PM                                                                                                                    
BREWSTER JAMIESON,  Attorney, Lane Powell  LLC, said he  has been                                                               
practicing  civil litigation  for 31  years in  Alaska and  noted                                                               
that  the law  does  not accomplish  much in  the  way of  useful                                                               
information, but  it does  place a burden  on practitioners.   In                                                               
terms  of settlement  information, the  data is  of cases  in the                                                               
court  system, not  cases  that  are settled  before  they go  to                                                               
court.  He  opined that tort reform accomplished much  of what it                                                               
set out  to accomplish and  has had  a significant impact  on his                                                               
practice in terms of the certainty  it brought in areas that were                                                               
uncertain  before passage.   He  said  that tort  reform made  it                                                               
easier  to resolve  and settle  cases and  predict outcomes.   He                                                               
highlighted that there are factors  determining the dollar amount                                                               
cases settle for,  and what juries award in the  way of verdicts.                                                               
It is expensive  and difficult to collect data  that doesn't tell                                                               
much  about the  cases, or  whether tort  reform was  or was  not                                                               
good, should  or should not  continue, or  is fair or  unfair, he                                                               
explained.   He  remarked he  fully supports  the repeal  of this                                                               
provision and the bill.                                                                                                         
1:45:20 PM                                                                                                                    
KEN  JACOBUS,  Attorney,  Law  Offices  of  Kenneth  P.  Jacobus,                                                               
paraphrased   the  following   statement  [original   punctuation                                                               
     As Chairman  of the Judiciary Committee,  you should be                                                                    
     able  to  do  something  about  this  abomination  that                                                                    
     continues  to  exist in  the  Alaska  Statutes. I  have                                                                    
     enclosed the  most recent  Resolution of  the Anchorage                                                                    
     Bar  Association directed  at this  matter. Every  year                                                                    
     since  2003  through  2010,  similar  resolutions  were                                                                    
     adopted  by  the  Anchorage  Bar  Association  and  the                                                                    
     Alaska Bar  Association. The Legislature  has continued                                                                    
     to ignore this request, so we finally gave up.                                                                             
     The  enclosed resolution  lists  a lot  of the  reasons                                                                    
     that the  statute is  bad. At  the present  time, these                                                                    
     reports  must be  made. Many  of the  attorneys do  not                                                                    
     follow this law. I think that  a lot of them don't even                                                                    
     know  about it.  Those that  do bill  their clients  or                                                                    
     absorb the  cost as an administrative  cost. Nothing is                                                                    
     done with  the reports by  the State because it  has no                                                                    
     need of the information.                                                                                                   
     I have  enclosed some additional information.  In 2001,                                                                    
     the   Judicial    Council   itself    recommended   the                                                                    
     elimination of the  automatic reporting requirement. It                                                                    
     desired to  retain the right to  collect information if                                                                    
     it needed to  do so in the future. It  prepared a draft                                                                    
     of a bill that would  accomplish this result. Copies of                                                                    
     the relevant information is enclosed.                                                                                      
     My personal preference would be  to repeal AS 09.68.130                                                                    
     completely. However,  if the Judicial Council  wants to                                                                    
     retain  the right  to collect  information,  I have  no                                                                    
     real problem.   While it has  collected information for                                                                    
     15 years since  it published its only report,  I do not                                                                    
     assume that  it will collect information  in the future                                                                    
     unless there is a real purpose in doing so.                                                                                
     Repealing  this  statute  would lessen  a  useless  and                                                                    
     major burden  on Alaskan attorneys  and clients  If the                                                                    
     State wants  to collect  information in the  future, it                                                                    
     is free to do so.                                                                                                          
MR.  JACOBUS advised  that  prior  to tort  reform  there was  an                                                               
assumption that verdicts  were too high, and  attorneys were paid                                                               
too much.  The  AJC study showed there are not  a number of large                                                               
jury verdicts in Alaska, or  large settlements, and attorneys are                                                               
not being  paid huge amounts  of money.   He referred to  page 1,                                                               
lines 6-9, AS 09.68.130(a), which read:                                                                                         
     (a)  Except as  provided in  (c) of  this section,  the                                                                    
     Alaska Judicial Council  shall periodically collect and                                                                    
     evaluate  information  relating  to the  resolution  of                                                                    
     civil litigation ...                                                                                                       
MR.  JACOBUS  suggested the  word  "shall"  mandatory, should  be                                                               
changed to "may" discretionary.                                                                                                 
VICE CHAIR  KELLER referred to  Version H, and explained  that it                                                               
deletes  that  entire  section  as the  language  now  reads  "AS                                                               
09.68.130 is repealed."                                                                                                         
1:50:12 PM                                                                                                                    
REPRESENTATIVE CLAMAN  noted the  committee substitute  (CS) does                                                               
away with  the authority  to collect any  information at  all and                                                               
asked whether Mr. Jacobus was in favor of the CS.                                                                               
MR.  JACOBUS advised  he is  in support  of the  CS and  does not                                                               
believe the Alaska Bar Association  would be very happy being the                                                               
enforcement  mechanism.    "It   can't  deal  with  thousands  of                                                               
disciplinary  complaints  because  attorneys do  not  file  their                                                               
required reports," he expressed.                                                                                                
1:51:26 PM                                                                                                                    
SARAH   BADTEN,  Attorney,   Groh,   Eggers,   LLC,  stated   she                                                               
wholeheartedly supports repealing the  statute as her practice is                                                               
in  contract law  and contract  principle where  she sues  over a                                                               
lien  foreclosure  or payment  of  money.   She  emphasized  that                                                               
individuals pay the money that is  owed and the case is dismissed                                                               
so it is  not reflective of any useful information  to the AJC or                                                               
the legislature.   She  remarked that she  deals with  costs that                                                               
are transferred back  to the borrower or owner.   She attempts to                                                               
keep costs down, but  it is part of her time  and she charges her                                                               
clients who then  pass that cost through to the  owner.  She said                                                               
she would like  to see the statute repealed as  it is archaic and                                                               
costs unnecessary time and money.                                                                                               
VICE CHAIR  KELLER closed public testimony  after ascertaining no                                                               
one further wished to testify.                                                                                                  
1:54:28 PM                                                                                                                    
The committee took a brief at ease.                                                                                             
VICE CHAIR KELLER  passed the gavel to Chair LeDoux  and the bill                                                               
was held in committee.                                                                                                          
            HB  15-CREDITS FOR TIME SERVED/GOOD TIME                                                                        
1:54:51 PM                                                                                                                    
CHAIR LEDOUX announced that the next order of business would be                                                                 
HOUSE BILL NO. 15, "An Act  relating to credits toward a sentence                                                               
of imprisonment and to good time deductions."                                                                                   
1:56:12 PM                                                                                                                    
REPRESENTATIVE KELLER  moved to  adopt committee  substitute (CS)                                                               
for HB  15, Version 29-LS0102\N,  Gardner/Martin, 2/19/15  as the                                                               
working  document.   There  being  no  objection, Version  N  was                                                               
before the committee.                                                                                                           
1:56:23 PM                                                                                                                    
REPRESENTATIVE TAMMIE WILSON paraphrased the following sponsor                                                                  
statement [original punctuation provided]:                                                                                      
     The state  of Alaska faces rising  incarceration costs,                                                                    
     growing   correctional   populations,   and   declining                                                                    
     financial  resources. To  face  this challenge,  Alaska                                                                    
     must  seek  out   alternatives  which  maximizes  state                                                                    
     financial  resources   while  providing  rehabilitative                                                                    
     services  for  incarcerated   individuals.  It  is  the                                                                    
     purpose of HB 15 to  grant credit against a sentence of                                                                    
     imprisonment and  award good  time deductions  for time                                                                    
     spent in  a treatment program, in  a private residence,                                                                    
     or under electronic monitoring.                                                                                            
     It is  the mission of Alaska  Department of Corrections                                                                    
     (DOC)  to   provide  secure   confinement,  reformative                                                                    
     programs,   and  provide   a   process  of   supervised                                                                    
     community reintegration  to enhance  the safety  of our                                                                    
     communities.  Under   current  statutes,   a  convicted                                                                    
     prisoner  is entitled  to a  deduction of  one-third of                                                                    
     the term of imprisonment  under good time deductions if                                                                    
     the  prisoner follows  the  rules  of the  correctional                                                                    
     facility in  which the  prisoner is  confined. However,                                                                    
     if a  prisoner spends any  time in a  treatment program                                                                    
     or   while  under   electronic   monitoring  they   are                                                                    
     ineligible.  The  penalization for  seeking  treatment,                                                                    
     maintaining  employment,  or  starting the  process  of                                                                    
     reintegration  into  the   community  stands  in  stark                                                                    
     contrast to the goals outlined by DOC.                                                                                     
     A diverse range of  programs are available to prisoners                                                                    
     to    facilitate    an   individual's    reintegration.                                                                    
     Electronic Monitoring  (EM) is  a tool utilized  by DOC                                                                    
     that provides  cost effective supervision  of offenders                                                                    
     while  reducing  recidivism.   The  EM  program  allows                                                                    
     qualified  incarcerated individuals  to  serve time  at                                                                    
     home   while  adhering   to  the   program  conditions.                                                                    
     Qualified  individuals can  gain  access to  community-                                                                    
     based  treatment, maintain  employment, access  diverse                                                                    
     medical treatment, perform  community service work, and                                                                    
     begin  the process  of  reintegration.  The ability  to                                                                    
     grant  credit against  a sentence  of imprisonment  for                                                                    
     time spent  under supervision of  electronic monitoring                                                                    
     or within a treatment  program can potentially save the                                                                    
     state  of Alaska  over twelve  million dollars  a year.                                                                    
     The   State   of   Alaska   has   an   opportunity   to                                                                    
     substantially  save  money  while  increasing  Alaskans                                                                    
     access  to   community-based  treatments,   ability  to                                                                    
     maintain  employment,  and  reduce  recidivism.  HB  15                                                                    
     promotes the mission  of DOC by encouraging  the use of                                                                    
     reformative  programs while  fostering community  based                                                                    
     Thank you for your support of HB 15.                                                                                       
1:58:56 PM                                                                                                                    
REPRESENTATIVE  WILSON  offered  an  Electronic  Monitoring  (EM)                                                               
power  point presentation  and  advised that  the  bill does  not                                                               
change eligibility.   Requirements of eligibility  are based upon                                                               
the  Department  of  Corrections (DOC)  recommendations  and  the                                                               
court in determining the type  of monitoring an individual should                                                               
have, she  expressed.  Currently,  the seven requirements  by DOC                                                               
are as follows:  1. Release date is less than  three years. 2. No                                                               
current or prior  sex offense related convictions.  3. No current                                                               
domestic violence related  convictions. 4. Reside in  and work in                                                               
the Anchorage, Fairbanks, Girdwood,  Kenai, Ketchikan, Mat-Su, or                                                               
Sitka  areas. 5.  Land-line  phone with  basic  service and  long                                                               
distance carrier.   6. Must  be able  to provide a  "clean" urine                                                               
sample  (no  prescription  narcotics  or  street  drugs.)  7.  No                                                               
weapons,  alcohol, or  controlled substances  in the  home.   She                                                               
stated she is  hopeful the program will grow to  cover more areas                                                               
than the above mentioned areas.                                                                                                 
1:59:51 PM                                                                                                                    
REPRESENTATIVE WILSON explained that  within the EM 24/7 program,                                                               
should an individual  take a drink of alcohol,  the monitor picks                                                               
it  up and  data is  downloaded  at the  end  of the  week.   The                                                               
approximate monitor cost is $105  for seven days versus over $150                                                               
per day.   DOC has an EM program and  there are private companies                                                               
with  monitors,  she  remarked.     In  FY14  a  total  of  2,034                                                               
individuals   participated   in   DOC's  EM   program   and   the                                                               
participants  served  a total  of  134,585  days, which  averages                                                               
about 66 days  per year.  Although, if good  time deductions were                                                               
provided with  the 2014 participants,  it would have  reduced the                                                               
days by 44,862.  She described  good time as not only a mechanism                                                               
to show behavior change when  incarceration, but actually "a step                                                               
down."   She related that  parole is  to help individuals  find a                                                               
job or a  place to live but is currently  not [effective] because                                                               
there are many  prisoners per parole officer.   This program puts                                                               
an individual in  their own setting, receiving  treatment, and an                                                               
opportunity to abide  by the rules.  She pointed  out that should                                                               
the offender not obey the rules  they will serve the remainder of                                                               
their time in jail.   She suggested encouraging those with "these                                                               
kinds of issues" to undergo treatment rather than penalize them.                                                                
2:02:30 PM                                                                                                                    
REPRESENTATIVE WILSON  pointed to the  chart on page 9  which she                                                               
described  as  a potential  cost  savings  per individual.    The                                                               
intent is to incentivize a  program currently in existence which,                                                               
she noted,  is that  an individual  in pre-trial  receives credit                                                               
for sitting  there.   "I go  and say I'm  going to  get treatment                                                               
while I'm  waiting to  go to  trial, I  don't.   That just  to me                                                               
seems very  backwards to be able  to do that," she  related.  She                                                               
noted that pages 9-10 indicate  more savings, and page 11 depicts                                                               
a reduction of 31 percent,  with significant reduction across all                                                               
age groups  and offenses.  She  opined that the reduction  is due                                                               
to individuals living  in their own community  versus taking them                                                               
completely  out  of  it.    She  pointed  to  page  12,  "general                                                               
recidivism",  "EM recidivism"  and  "general  recidivism less  EM                                                               
recidivism" from  FY2007-FY2011.  Page  13, is the BI  TAD device                                                               
which  has proven  effective in  Alaska  and, she  said, that  90                                                               
percent  of Alaska's  offenders/inmates have  alcohol or  illegal                                                               
drugs  involved in  their  crimes.   She  noted  there  is an  18                                                               
percent  recidivism rate  for offenders  who  serve their  entire                                                               
sentence on  the EM program,  and were released for  time served.                                                               
She  pointed out  that  the state  can save  $12  million if  the                                                               
program   is  utilized   by  individuals   already  enrolled   in                                                               
electronic monitoring  during FY2014.  However,  if an individual                                                               
is currently on  the EM program, this bill does  not affect them.                                                               
She  reiterated   that  EM  has   been  successfully   tested  in                                                               
Anchorage,  Kotzebue,  Bethel,   Palmer/Wasilla,  Fairbanks,  and                                                               
2:04:53 PM                                                                                                                    
REPRESENTATIVE WILSON  advised it was  never her intent  that the                                                               
program would  be solely private  residence, and if  the offender                                                               
commits  another crime  while on  EM they  will not  receive time                                                               
served or good time.   Representative Wilson commented that HB 15                                                               
is  not ready  to be  passed out  of committee  today as  she has                                                               
questions on the statute.  She  asked "should we just offer it to                                                               
those  going into  a treatment  program,  actually a  residential                                                               
treatment program, or the 24/7  program that we are hearing would                                                               
not  be eligible  under  the  current way  this  bill is  written                                                               
because it is not a  residential treatment."  However, she noted,                                                               
the  individual   being  monitored   24/7,  is  holding   a  job,                                                               
performing according to  DOC's requirements, and is  outside of a                                                               
treatment program.   There is a question that  once an individual                                                               
is  sentenced,  can  they  stay  on the  same  monitor  versus  a                                                               
different monitor where  they will have to check  in with someone                                                               
randomly.   She described that  scenario as being  difficult when                                                               
the  individual  has a  job  and  yet  with  the EM  device,  the                                                               
individual is monitored  24/7 and does not have to  leave work to                                                               
be tested.   She stated that as far as  the incentivize treatment                                                               
portion of  the bill  that is  as far as  she plans  to go.   She                                                               
opined that currently  under HB 15 an individual in  jail and not                                                               
currently on EM  would not be eligible.  She  further opined that                                                               
the more time an individual stays  in jail without the right kind                                                               
of  treatment, or  able to  get back  into society,  "having that                                                               
step down," the more likely the  individual is to stay within the                                                               
system.  She described the goal  as getting Alaskans out of jail,                                                               
able to live in society, and have a family.                                                                                     
2:09:00 PM                                                                                                                    
REPRESENTATIVE  KELLER  asked  the  amount of  time  being  spent                                                               
between arrest  and sentencing.   He said  he had heard  the pre-                                                               
trial  time   was  large,  and  the   Alaska  State  Constitution                                                               
guarantees a speedy trial.                                                                                                      
REPRESENTATIVE WILSON  offered that  if an individual  is sitting                                                               
jail  waiting for  trial, and  found innocent,  "you've got  time                                                               
banked, because you served and you didn't have to serve."                                                                       
2:09:57 PM                                                                                                                    
REPRESENTATIVE KELLER asked that  Representative Wilson bring the                                                               
information  to the  committee  of  the amount  of  time and  the                                                               
number of  people that are  in this  position, and the  number of                                                               
individuals and the amount of banked  time.  He expressed that he                                                               
would like  to know why she  backed away from house  arrest as he                                                               
understood that conditions of bail  sometimes include third party                                                               
custodians with the individual locked in house arrest.                                                                          
REPRESENTATIVE  WILSON   stated  "that  was  never   our  intent,                                                               
Representative Keller, it  was kind of an accident."   The intent                                                               
was always for electronic monitoring,  she said she took the part                                                               
of the statute  that looked "like they took just  that part out."                                                               
She noted that a court case  decided if an individual is in their                                                               
residence  [with a  3rd party  custodian] and  not allowed  to go                                                               
where they would  like, it is not the same  type of monitoring as                                                               
electronic monitors.   She added that most of the  people in jail                                                               
are  due to  drugs and  alcohol, and  courts have  been concerned                                                               
that the third party custodian is  not monitoring as well as they                                                               
REPRESENTATIVE KELLER said there  are individuals that take being                                                               
released into  custody very  serious, as it  changes the  life of                                                               
the  person that  takes it  seriously and  in house  arrest.   He                                                               
suggested that  the appropriate response  may be to  do something                                                               
to  ensure that  the  terms  of bail  are  met  rather than  just                                                               
ignoring that arena and allowing it  to get weaker.  He likes the                                                               
idea  of including  this into  the bill  and would  like to  hear                                                               
reasons why not.                                                                                                                
REPRESENTATIVE WILSON deferred to  "bright people behind me," and                                                               
noted she is not an attorney.                                                                                                   
2:12:51 PM                                                                                                                    
CHAIR  LEDOUX  referred   to  Representative  Wilson's  statement                                                               
regarding "banked time"  and asked for clarification  that in the                                                               
event an individual  is acquitted and has served  time, that time                                                               
can be used the next time the individual is arrested.                                                                           
REPRESENTATIVE  WILSON  said  "it  is my  understanding  that  is                                                               
true."   Literally, she remarked,  an individual has  served time                                                               
but has been  acquitted so later on the individual  can use it if                                                               
arrested again.                                                                                                                 
2:13:50 PM                                                                                                                    
REPRESENTATIVE  CLAMAN  commented  that   he  was  not  aware  of                                                               
"banking."  He opined that it  is common that a pre-trial release                                                               
is not as  restrictive as a house arrest post  sentencing, and it                                                               
is fairly  common for an  individual to negotiate  receiving jail                                                               
credit before sentencing so it  is part of the pre-trial release,                                                               
he  said.   In terms  of speedy  trial, he  suspects that  speedy                                                               
trial has been waived more than once.                                                                                           
CHAIR LEDOUX opened public testimony.                                                                                           
2:16:06 PM                                                                                                                    
BILLY  HOUSER,  Probation  Officer,  Division  of  Probation  and                                                               
Parole,  Department  of  Corrections,  said  he  is  the  program                                                               
manager for  the Department of Corrections  Electronic Monitoring                                                               
and is not clear as to the  changes made in the drafts.  However,                                                               
good  time is  the key  issue  and part  of Sec.  4 [Version  29-                                                               
LS0102\E] deals with  good behavior while a  prisoner is confined                                                               
at a  correctional facility and  noted it is problematic  for the                                                               
electronic monitoring  program.   He said  the draft  he reviewed                                                               
would have been fine and would  have resolved those issues if the                                                               
last portion,  " ... ordered by  the court and the  defendant has                                                               
not committed a crime while  in the residential treatment program                                                               
or under  electronic monitoring."   He indicated that  removal of                                                               
the last  sentence could achieve  the goals of  this legislation,                                                               
which  is   both  rehabilitation  and  reducing   the  amount  of                                                               
individuals  in custody.   He  pointed out  that the  first three                                                               
sections regarding sentencing  and pretrial credit have  a lot of                                                               
CHAIR LEDOUX  noted that  Mr. Houser  may not  be looking  at the                                                               
correct draft.                                                                                                                  
2:19:39 PM                                                                                                                    
REPRESENTATIVE WILSON offered  that Mr. Houser is  looking at the                                                               
committee substitute  that was  "out" last  night.   She remarked                                                               
the section is  problematic which is why it is  no longer part of                                                               
the bill.                                                                                                                       
MR. HOUSER  said he now  understands that everything  was removed                                                               
except for the prior section 4, which addresses AS 33.20.010(c).                                                                
REPRESENTATIVE WILSON responded that  Sec. 1, AS 12.55.027(d) was                                                               
in  the  original  bill.    She  explained  that  "in  a  private                                                               
residence"  is  removed  so  it   reads  "for  time  spent  under                                                               
electronic  monitoring"   and  added   the  following:   "if  the                                                               
defendant  has  not  committed a  crime  while  under  electronic                                                               
monitoring."   She  further responded  that  AS 33.20.010(c)  was                                                               
amended  to  read  "a  prisoner  shall be  awarded  a  good  time                                                               
deduction under  (a) of this  section for  any period spent  in a                                                               
residential   treatment  program,   or  while   under  electronic                                                               
monitoring  if the  defendant  has not  committed  a crime  while                                                               
under electronic monitoring."                                                                                                   
MR. HOUSER  stated that from an  electronic monitoring standpoint                                                               
and  a restorative  justice philosophy  standpoint, allowing  the                                                               
courts to  give sentence  credit to an  individual in  a pretrial                                                               
status  is very  problematic.   Currently,  he  stated, the  bail                                                               
companies are non-regulated  and are in a  for-profit position in                                                               
that when an  individual does not have the money  to pay for bail                                                               
and electronic monitoring, the individual  will not receive those                                                               
services.   The  program  rules are  "all over  the  map" and  in                                                               
essence defendants  seek continuance after continuance  and waive                                                               
their  right to  a  speedy trial.   He  described  a scenario  of                                                               
reviewing an electronic monitoring  application for an individual                                                               
who  had  served three  and  one-half  years  to a  private  bail                                                               
company  on electronic  monitoring.   The  individual planned  to                                                               
take a  plea agreement where  he would  serve a three  years flat                                                               
time  sentence.   This  would be  the  individual's third  felony                                                               
conviction,  presumptive  under  sentencing  guidelines,  and  in                                                               
essence, he expressed, if the  court were to allow the individual                                                               
credit for the time  he was out on bail he  would not have served                                                               
a single day in jail for  a conviction that requires three years.                                                               
Mr. Houser  reiterated there is  "so much"  disparative treatment                                                               
involved that  it is  very problematic.   He related  that judges                                                               
are  not familiar  enough  with  correctional interstate  compact                                                               
rules  and regulations  for  actual  correctional facilities  and                                                               
probation  and  parole  and were  giving  credit  to  individuals                                                               
living out of  state with a private bail company  to "serve their                                                               
sentence."   The  individual then  receives jail  credit for  it,                                                               
when in fact,  the individual should have  been processed through                                                               
the interstate compact  for corrections, he expressed.   He noted                                                               
that  if that  process is  not met,  or regulated,  the state  is                                                               
subject  to  civil  penalties.    In  essence,  he  remarked,  AS                                                               
33.20.010(c) would be  served in helping to reduce  the number of                                                               
individuals incarcerated.   Realistically, he commented,  DOC has                                                               
the ability right  now to place pretrial  prisoners on electronic                                                               
monitoring  house arrest  as  a designation  process.   The  only                                                               
thing that keeps  DOC from currently doing that is  the good time                                                               
credit statute.  He explained that  if an individual is placed on                                                               
pretrial, the individual  does not get the good time  but, if DOC                                                               
designated  them to  pretrial, they  would.   The  goal could  be                                                               
achieved just by amending AS 33.20.010(c).                                                                                      
2:27:21 PM                                                                                                                    
DOUGLAS  MOODY,   Deputy  Public  Defender,   Criminal  Division,                                                               
Central   Office,   Public   Defender   Agency,   Department   of                                                               
Administration, stated  that electronic monitoring  is sufficient                                                               
both  to  protect  the  public   and  to  provide  the  necessary                                                               
structure to  reintegrate the individuals.   The whole  idea with                                                               
offenders in  jail is  because the  state was  mad at  them about                                                               
their behavior,  and not  so much  afraid of them.   The  goal is                                                               
that they  change their behavior  and get them plugged  back into                                                               
being productive members  of society and, he said, HB  15 will do                                                               
that.  Anything  that helps DOC expand  its electronic monitoring                                                               
program  both post-trial  and  pre-trial,  the public  defender's                                                               
office  supports.    He  opined   it  would  benefit  the  public                                                               
defender's  particular  client base  in  that  they have  sliding                                                               
scales  for   their  electronic   monitoring  so   that  indigent                                                               
defendants can  participate.  Whereas  Mr. Houser is  correct, he                                                               
noted, that  if it is  totally left to the  free market a  lot of                                                               
public defender clients can't get  out because they can't pay the                                                               
fee.  He then addressed the  question about banking time and said                                                               
the time an  individual spends in jail could only  be credited to                                                               
the  case the  individual  is  in jail  upon.    For example,  he                                                               
explained,  an individual  does six  months  on one  case and  is                                                               
acquitted, that  time is dead  time and  never counts again.   He                                                               
further explained  that the banking  situation arises  when there                                                               
are probation hearings and an  individual may sit in jail waiting                                                               
for a  probation revocation  hearing for 60  days.   The offender                                                               
finally appears  in front of the  judge and the judge  revokes 30                                                               
days, so  the individual  has 30  days in the  bank for  the next                                                               
violation but on that case only, he expressed.                                                                                  
2:31:13 PM                                                                                                                    
RICK SVOBODNY, Deputy Attorney  General, Central Office, Criminal                                                               
Division, Department of  Law, stated he would not  be focusing so                                                               
much  on electronic  monitoring or  credit for  jail time  for an                                                               
individual  staying  in  their private  residence.    But  rather                                                               
offered two concepts that sound a  lot alike but are not the same                                                               
at all.   There is credit for time served  in pre-trial, which is                                                               
before an individual  has been sentenced they can  get credit for                                                               
time  in jail,  or credit  for time  in treatment  programs.   He                                                               
noted that what has been added  with this bill is credit for time                                                               
on electronic  monitoring.  He  explained that the  other concept                                                               
is good time  credit where an individual has been  sentenced to a                                                               
term in jail and to control  the individual in jail, they receive                                                               
a reduction of  one day for every three days  served.  Currently,                                                               
he  said, an  individual receives  credit for  time in  pre-trial                                                               
when the  individual actually is  in jail.   For example,  if the                                                               
judge  said bail  is  $100,000, and  the  individual cannot  post                                                               
$100,000 the individual  may stay in jail unless  there are other                                                               
conditions  for their  release.   Every day  an individual  is in                                                               
jail  they get  credit  for that  time.   He  paraphrased a  1980                                                               
Alaska Supreme Court  decision that said, "if a  court orders you                                                               
do something that is the functional  equivalent of jail - that it                                                               
is  like jail  in  many  respects in  pretrial.   The  individual                                                               
should get  credit for  that too."   He noted  two cases  Lock v.                                                             
State  of Alaska,  609 P.2d  539 (1980)  and Nygren  v. State  of                                                           
Alaska,  658  P.2d 141  (Alaska  App.  1983)  that set  out  that                                                             
proposition.   He opined that  when a court orders  an individual                                                               
pre-trial,  as a  condition of  bail to  a treatment  program the                                                               
individual  should  receive credit  as  though  sitting in  jail.                                                               
Although,  he said  there were  examples of  a treatment  program                                                               
being run  outside of Anchorage  for alcohol treatment in  a bar,                                                               
"Sgt.  Preston's Lodge."    The courts  have  granted credit  for                                                               
showing up  at the Department of  Health & Social Services  or an                                                               
entity designated by  the Department of Health  & Social Services                                                               
to take medication  that wasn't related to alcohol.   Some judges                                                               
believe  that was  the  functional equivalent  of  jail and  were                                                               
giving people credit.                                                                                                           
2:36:35 PM                                                                                                                    
REPRESENTATIVE GRUENBERG asked if  Mr. Svobodny was talking about                                                               
good time, or credit for time served.                                                                                           
2:36:48 PM                                                                                                                    
MR. SVOBODNY  responded that  he was  referring to  conditions of                                                               
bail  that  are  set  by  the court  prior  to  trial,  prior  to                                                               
conviction, and  credit for time  actually served.  The  Court of                                                               
Appeals  and the  Alaska Supreme  Court were  good about  telling                                                               
judges that it doesn't count  when the individual is out fishing.                                                               
He offered  another example where  an individual was  released to                                                               
the custody  of his  mother.   The individual  came to  court and                                                               
said "that's like  jail," and the court gave him  credit of which                                                               
the  Court  of  Appeals  overturned,  he noted.    In  2007,  the                                                               
legislature put standards into the  law which became AS 12.55.027                                                               
credit  for  time   served.    The  legislature   decided  if  an                                                               
individual  is in  a treatment  program and  it has  restrictions                                                               
which  the  Court of  Appeals  and  Supreme  Court said  are  the                                                               
functional equivalent  of jail,  the individual receives  one day                                                               
credit for  every day in  the program.   "You don't even  need to                                                               
complete the program,  but just for every day you've  been in it,                                                               
you get  credit," he said, and  that is where AS  12.25.027 comes                                                               
in.    He  offered  that   he  is  not  arguing  that  electronic                                                               
monitoring is not  a good thing or a helpful  tool, but suggested                                                               
it is not the functional equivalent  of jail.  He described it as                                                               
being  back  to the  old  days,  before standards  for  treatment                                                               
programs as no standards for EM  have been imposed.  He explained                                                               
that the legislature imposes standards  for treatment programs in                                                               
that  it  had  to  be   a  legitimate  treatment  program  and  a                                                               
representative  of the  program had  to go  to court  and testify                                                               
that the individual was in their  program.  He described the core                                                               
principle  of Sec.  2, AS  12.55.027  as when  an individual  has                                                               
served time in  jail, or the functional equivalent  of jail time,                                                               
the  individual  should  receive  credit and  the  question  that                                                               
requires  answering  "is  wearing   an  electronic  bracelet  the                                                               
functional equivalent of incarceration."                                                                                        
2:42:34 PM                                                                                                                    
REPRESENTATIVE KELLER asked  Mr. Svobodny to make  his last point                                                               
MR.  SVOBODNY  responded  that  he   will  be  losing  a  lot  of                                                               
prosecutors  due  to   the  budget  and  he   would  rather  have                                                               
individuals do less time in jail,  rather than have people who do                                                               
a good service  lose their jobs.  He is  not opposed, in general,                                                               
to reducing the  amount of time some individuals go  to jail but,                                                               
he  stated, "why  don't  we just  call it  that  - let's  commute                                                               
everyone by one-third  of their time instead of  creating a legal                                                               
2:43:43 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  referred to  Sec. 1,  and stated  it is                                                               
confusing due to  the way it is currently drafted  "may not," and                                                               
proposed the language "shall grant credit."                                                                                     
MR. SVOBODNY answered  there is no need to change  anything in AS                                                               
12.55.027  as  it  says  "shall  not grant  credit"  is  for  the                                                               
previous examples.   That  is why in  2007, the  legislature said                                                               
"they shall not grant credit."                                                                                                  
2:45:36 PM                                                                                                                    
REPRESENTATIVE GRUENBERG noted that  the current language is that                                                               
"the  court  may   not  grant  credit  [against   a  sentence  of                                                               
imprisonment]  for time  spent in  a private  residence ..."   He                                                               
asked whether there were any  circumstances wherein an individual                                                               
should be able to do that.                                                                                                      
MR.  SVOBODNY  replied in  the  event  an  individual is  in  the                                                               
functional equivalent of  jail, then yes.  If  the court releases                                                               
an individual  on his own  recognizance, and orders that  he live                                                               
at  his residence  and  not leave  the room,  that  would be  the                                                               
functional equivalent of incarceration.                                                                                         
2:47:18 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG   surmised  that  Mr.   Svobodny  would                                                               
support allowing credit for time in  a private residence if it is                                                               
the functional equivalent of incarceration.                                                                                     
MR. SVOBODNY responded "yes."                                                                                                   
REPRESENTATIVE  GRUENBERG  questioned   whether  there  were  any                                                               
circumstance under which credit  should be granted for electronic                                                               
MR.  SVOBODNY replied  that it  is  hard for  him to  think of  a                                                               
circumstance  wherein  all the  court  is  requiring is  that  an                                                               
individual wear  an ankle  bracelet.  He  said he  can't conceive                                                               
anyone thinking that is the same as being in jail.                                                                              
2:49:03 PM                                                                                                                    
REPRESENTATIVE  CLAMAN said  Mr. Svobodny  prefaced his  comments                                                               
that up until 2007 when AS  12.25.027 was passed the courts did a                                                               
good  job of  developing a  common  law of  what constituted  the                                                               
functional equivalent of jail for purposes  of what is known as a                                                               
legal matter is Nygren credit.                                                                                                
MR. SVOBODNY answered "yes," if you mean the appellate courts.                                                                  
REPRESENTATIVE  CLAMAN  noted that  since  2007,  there has  been                                                               
considerable  additional  litigation  about Nygren  credit.    He                                                             
further noted  that the  old common law  of Nygren  credit versus                                                             
the  statutory  law turned  out  to  not perfectly  match  Nygren                                                             
credit.   He offered that  the philosophical question  is whether                                                               
the state  is better off trying  to define this as  a legislature                                                               
by statute, or  might the state be better off  by saying that the                                                               
courts are  doing a good  job developing  this as common  law and                                                               
adapting to modern  technology as it comes up.   He asked whether                                                               
the state  would be  better off  getting out  of the  business of                                                               
defining this and let the courts  continue to deal with it rather                                                               
than writing it as statute.                                                                                                     
MR. SVOBODNY responded that it  depends upon what the legislature                                                               
would do.  He said he knows  what the courts have said, and would                                                               
the state give  people credit for staying in their  own homes and                                                               
wearing an  ankle bracelet.   He remarked that the  discussion is                                                               
credit for time  served and he has no problem  with the appellate                                                               
court  decisions  if  it  starts   with  Nygren  credit  for  the                                                             
functionally  equivalent  of  incarceration.     He  agreed  with                                                               
Representative Claman that  there is an existing  statute that is                                                               
a little more restrictive than where  the courts were at the time                                                               
AS 12.25.027  was passed.  He  described it as a  nuance issue as                                                               
opposed to public policy issue.                                                                                                 
2:52:35 PM                                                                                                                    
CHAIR   LEDOUX  asked   whether  the   legislature  is   in  this                                                               
legislative  predicament  right  now with  this  statute  because                                                               
there are a few "off the  wall" cases by the Superior Courts that                                                               
possibly the Department  of Law and legislature reacted  to.  She                                                               
suggested  the  legislature consider  going  back  to the  system                                                               
especially  now that  common law  is  more developed.   With  the                                                               
guidance  of the  appellate courts,  trial courts  have a  little                                                               
more discretion  to determine what  the functional  equivalent of                                                               
jail is, she said.                                                                                                              
MR. SVOBODNY responded "Yes, we might  be better off."  He opined                                                               
that the  reason there  were less  than appropriate  decisions by                                                               
the trial courts is that it  is hard to predict without standards                                                               
whether something  is going  to work  or not.   He referred  to a                                                               
Juneau  case wherein  a defendant  was found  at a  movie theater                                                               
with  his girlfriend  rather than  being home  or at  work.   The                                                               
trial court  determined that dinner and  a date was not  the same                                                               
as being in  jail.  "If we put the  resources into fighting about                                                               
it, both from the defense point  of view and the state's point of                                                               
view, we're just fine with the appellate court decisions."                                                                      
2:55:04 PM                                                                                                                    
CHAIR  LEDOUX  surmised  that rather  than  a  statute  currently                                                               
reading  "the  courts  may  not grant,"  that  perhaps  the  best                                                               
situation  would be  a statute  with a  number of  guidelines the                                                               
courts should consider when making decisions.                                                                                   
MR. SVOBODNY  responded in the  affirmative and advised  that was                                                               
done in 2007  in (a), (b), (c), the major  place that people were                                                               
getting credit was treatment programs.                                                                                          
2:55:55 PM                                                                                                                    
REPRESENTATIVE GRUENBERG said subsection  (c) uses the concept of                                                               
functional equivalent and provides guidelines.                                                                                  
MR. SVOBODNY  responded that Sec. 3  is credit for good  time and                                                               
is an entirely different  concept.  That is a tool  as to how the                                                               
Department  of  Corrections  causes people  to  behave  following                                                               
sentencing  where an  individual is  given one-third  off of  the                                                               
sentence then,  he explained, should the  prisoner cause problems                                                               
DOC  potentially takes  that  time away.    After fulfilling  the                                                               
sentence and the individual is out  on probation or parole and is                                                               
using electronic  monitoring, the individual receives  credit for                                                               
good time  if their  probation or  parole is  being revoked.   He                                                               
opined that if the individual is  not in custody, it is a "bigger                                                               
legal fiction" to  say an individual should be given  one day for                                                               
each  three  days served  so  the  individual  will behave.    He                                                               
reminded the committee that electronic  monitoring is a device to                                                               
help  in public  protection and  it has  the ancillary  effect of                                                               
keeping  people  from  breaking  the  law.    He  expressed  that                                                               
electronic  monitoring  does  not  stop  people  from  committing                                                               
crimes as it is not a panacea, it is a tool.                                                                                    
3:00:04 PM                                                                                                                    
CHAIR LEDOUX  announced HB 15  is held over and  public testimony                                                               
remains open.                                                                                                                   
3:00:52 PM                                                                                                                    
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 3:00 p.m.                                                                 

Document Name Date/Time Subjects
HB15 Electronic Monitoring Presentation 2-11-2015.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Fiscal Note - DOA.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Fiscal Note - DOA_Public Def..pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Fiscal Note - DOC.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Fiscal Note - DOL.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Sponsor Statement 2-11-2015.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 1 - BITAD Alcohol monitoring technology utilized by Alaska DOC.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 2 - US Dept. of Justice Electronic monitoring and recidivism.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 3 - Electronic Monitoring Requirements.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 4 - Electronic Monitoring Terms and Conditions.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 5 - DOC House arrest and EM program indigent form.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 6 - Use of electronic monitoring in the Alaska.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Ver. W.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB79 Draft Proposed CS ver G.pdf HJUD 2/20/2015 1:00:00 PM
HB 79
HB83 Fiscal Note-JUD.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Fiscal Note-LAW.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - AS 09.68.130.PDF HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - Civil Case data.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB 83 Draft Proposed CS ver H.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB 83 Sponsor Statement.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Summary of Changes.PDF HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - AJC.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - Civil Case Form.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB15 Supporting Documents - Legal Memorandum 2-19-2015.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Draft Proposed CS ver E.PDF HJUD 2/20/2015 1:00:00 PM
HB15 Draft Proposed CS ver N.PDF HJUD 2/20/2015 1:00:00 PM
HB 15
HB83 Summary of Changes-Corrected.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - Civil case report 2001.PDF HJUD 2/20/2015 1:00:00 PM
HB 83
HB79 Written Testimony - Marcy.pdf HJUD 2/20/2015 1:00:00 PM
HB 79