Legislature(1995 - 1996)
04/10/1995 01:18 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 10, 1995
1:18 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HJR 9: Requesting the governor to file suit in the United States
Supreme Court against the United States government
alleging violations of the civil rights of Americans
listed as prisoners of war or missing in action in
Southeast Asia, demanding that documents concerning these
individuals be released; and requesting the other states
to join in this suit.
PASSED OUT OF COMMITTEE
HB 201: "An Act relating to prisoner litigation, post-conviction
relief, sentence appeals, amending Alaska Administrative
Rule 10, Alaska Rules of Appellate Procedure 204, 208,
209, 215, 521, 603, and 604, and Alaska Rules of Criminal
Procedure 11, 33, 35, and 35.1; and providing for an
effective date."
PASSED OUT OF COMMITTEE
HB 202: "An Act relating to the participation and accountability
of parents and guardians and the enforcement of
restitution orders entered in juvenile delinquency
proceedings; relating to claims on permanent fund
dividends for certain court-ordered treatment in juvenile
delinquency proceedings; changing Alaska Supreme Court
Delinquency Rules 3(b) and 8(b); and providing for an
effective date."
PASSED OUT OF COMMITTEE
HB 130: "An Act relating to agency review of public comment on
the adoption, amendment, and repeal of regulations;
relating to the examination of proposed regulations,
amendments of regulations, and orders repealing
regulations by the Administrative Regulation Review
Committee and the Department of Law; relating to the
submission to, and acceptance by, the lieutenant governor
of proposed regulations, amendments of regulations, and
orders repealing regulations; and requiring agencies to
make certain determinations before adopting regulations,
amendments of regulations, or orders repealing
regulations."
PASSED OUT OF COMMITTEE
WITNESS REGISTER
SAM GRISWOLD, Legislative Secretary
Representative Jeannette James
State Capitol, Room 102
Juneau, AK 99801-1182
Telephone: (907) 465-3743
POSITION STATEMENT: Introduced HJR 9
NANCY GOURLEY
1802 4th Avenue
Kenai, AK 99611
Telephone: (907) 283-2208
POSITION STATEMENT: Testified in favor of HJR 9
LEONARD EFTA
P.O. Box 353
Kenai, AK 99611
Telephone: (907) 283-7670
POSITION STATEMENT: Testified in favor of HJR 9
SUSAN ROSS
P.O. Box 198
Kasilof, AK 99610
Telephone: (907) 262-5479
POSITION STATEMENT: Testified in favor of HJR 9
GARY TYNDALL
P.O. Box 82977
Fairbanks, AK 99708
Telephone: (907) 451-2271
POSITION STATEMENT: Testified in favor of HJR 9
JIM MCCOMAS, President
Alaskans Against the Death Penalty
112 West 9th Avenue, Suite 201
Anchorage, AK 99501
Telephone: (907) 258-0704
POSITION STATEMENT: Opposed HB 201
MARGI MOCK, Supervisor
Appellate Section
Public Defender Agency
900 West 5th Avenue, Suite 200
Anchorage, AK 99501
Telephone: (907) 264-4437
POSITION STATEMENT: Testified against HB 201
LAURIE OTTO, Deputy Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone; (907) 465-3428
POSITION STATEMENT: Testified in favor of HB 201 and HB 202
DIANE WORLEY, Director
Division of Family and Youth Services
Department of Health and Services
P.O. Box 110600
Juneau, AK 99811-0600
Telephone: (907) 465-3191
POSITION STATEMENT: Testified in favor of HB 202
REPRESENTATIVE PETE KELLY
Alaska State Legislature
State Capitol, Room 513
Juneau, AK 99801-1182
Telephone: (907) 465-2327
POSITION STATEMENT: Sponsor of HB 130
DEBORAH BEHR, Regulations Attorney
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified in favor of HB 130
JOHN LINDBACK, Chief of Staff
Lieutenant Governor's Office
P.O. Box 110015
Juneau, AK 99811-0015
Telephone: (907) 465-4081
POSITION STATEMENT: Provided information on HB 130
PAM NEAL, President
Alaska State Chamber of Commerce
217 Second Street, Suite 201
Juneau, AK 99801
Telephone: (907) 586-2323
POSITION STATEMENT: Testified in support of HB 130
PREVIOUS ACTION
BILL: HJR 9
SHORT TITLE: SUIT RE POWS & MIAS AGAINST U.S. & OTHERS
SPONSOR(S): REPRESENTATIVE(S) JAMES, Kubina, Therriault, Mulder
JRN-DATE JRN-PG ACTION
01/16/95 18 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 18 (H) MLV, STA, JUD
01/19/95 87 (H) COSPONSOR(S): KUBINA
03/15/95 757 (H) COSPONSOR(S): THERRIAULT
03/20/95 (H) MLV AT 05:00 PM CAPITOL 17
03/20/95 (H) MINUTE(MLV)
03/22/95 847 (H) MLV RPT CS(MLV) 4DP
03/22/95 847 (H) DP: IVAN, WILLIS, FOSTER, KOTT
03/22/95 847 (H) INDETERMINATE FISCAL NOTE (LAW)
03/27/95 946 (H) COSPONSOR(S): MULDER
03/28/95 (H) STA AT 08:00 AM CAPITOL 102
03/28/95 (H) MINUTE(STA)
03/29/95 973 (H) STA RPT CS(MLV) 5DP
03/29/95 974 (H) DP: OGAN, WILLIS, ROBINSON, GREEN,
JAMES
03/29/95 974 (H) INDETERMINATE FISCAL NOTE (LAW)
3/22/95
04/10/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 201
SHORT TITLE: PRISONER LITIGATION AND APPEALS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/27/95 488 (H) READ THE FIRST TIME - REFERRAL(S)
02/27/95 488 (H) STATE AFFAIRS, JUDICIARY, FINANCE
02/27/95 488 (H) 3 ZERO FISCAL NOTES (LAW,CORR,DPS)
02/27/95 488 (H) 2 ZERO FISCAL NOTES (ADM)
02/27/95 488 (H) GOVERNOR'S TRANSMITTAL LETTER
03/07/95 (H) STA AT 08:00 AM CAPITOL 102
03/07/95 (H) MINUTE(STA)
03/14/95 (H) STA AT 08:00 AM CAPITOL 102
03/14/95 (H) MINUTE(STA)
03/16/95 (H) STA AT 08:00 AM CAPITOL 102
03/16/95 (H) MINUTE(STA)
03/18/95 (H) STA AT 10:00 AM CAPITOL 102
03/18/95 (H) MINUTE(STA)
03/20/95 807 (H) STA RPT 3DP 1NR
03/20/95 807 (H) DP: JAMES, GREEN, ROBINSON
03/20/95 807 (H) NR: IVAN
03/20/95 808 (H) 3 ZERO FNS (LAW, CORR, DPS)
2/27/95
03/20/95 808 (H) 2 ZERO FNS (ADM) 2/27/95
03/27/95 (H) JUD AT 01:00 PM CAPITOL 120
03/27/95 (H) MINUTE(JUD)
03/29/95 (H) JUD AT 01:00 PM CAPITOL 120
03/29/95 (H) MINUTE(JUD)
04/03/95 (H) JUD AT 01:00 PM CAPITOL 120
04/10/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 202
SHORT TITLE: JUVENILE DELINQUENCY PROCEEDINGS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/27/95 492 (H) READ THE FIRST TIME - REFERRAL(S)
02/27/95 492 (H) HES, JUDICIARY, FINANCE
02/27/95 492 (H) 2 ZERO FISCAL NOTES (ADM)
02/27/95 492 (H) 3 ZERO FISCAL NOTES (HES)
02/27/95 492 (H) 2 ZERO FISCAL NOTES (LAW, REV)
02/27/95 492 (H) GOVERNOR'S TRANSMITTAL LETTER
03/30/95 (H) HES AT 02:00 PM CAPITOL 106
03/30/95 (H) MINUTE(HES)
04/03/95 1005 (H) HES RPT CS(HES) NT 3DP 2NR
04/03/95 1005 (H) DP: G.DAVIS, TOOHEY, ROBINSON
04/03/95 1005 (H) NR: BUNDE, BRICE
04/03/95 1005 (H) 5 ZERO FNS (3-HES, 2-ADM) 2/27/95
04/03/95 1005 (H) 2 ZERO FNS (REV, LAW) 2/27/95
04/10/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 130
SHORT TITLE: REGULATION ADOPTION PROCEDURES & REVIEW
SPONSOR(S): REPRESENTATIVE(S) KELLY,James
JRN-DATE JRN-PG ACTION
01/27/95 157 (H) READ THE FIRST TIME - REFERRAL(S)
01/27/95 157 (H) STA, JUD, FIN
02/14/95 (H) STA AT 08:00 AM CAPITOL 519
02/14/95 (H) MINUTE(STA)
02/14/95 (H) ARR AT 12:00 PM BUTROVICH RM 205
02/15/95 396 (H) COSPONSOR(S): JAMES
02/21/95 (H) STA AT 08:00 AM CAPITOL 102
02/21/95 (H) MINUTE(STA)
02/21/95 (H) ARR AT 12:00 PM BUTROVICH RM 205
02/22/95 (H) ARR AT 04:00 PM BELTZ ROOM 211
02/22/95 (H) MINUTE(ARR)
02/22/95 (S) MINUTE(ARR)
02/23/95 (H) STA AT 08:00 AM CAPITOL 102
02/23/95 (H) MINUTE(STA)
03/09/95 (H) STA AT 08:00 AM CAPITOL 102
03/16/95 (H) STA AT 08:00 AM CAPITOL 102
03/16/95 (H) MINUTE(STA)
03/18/95 (H) STA AT 10:00 AM CAPITOL 102
03/18/95 (H) MINUTE(STA)
03/20/95 805 (H) STA RPT 1DP 2NR 1AM
03/20/95 805 (H) DP: JAMES
03/20/95 805 (H) NR: GREEN, IVAN
03/20/95 805 (H) AM: ROBINSON
03/20/95 806 (H) 5 FISCAL NOTES (3-GOV, DHSS, DPS)
03/20/95 806 (H) INDETERMINATE FISCAL NOTE (LAW)
03/20/95 806 (H) 3 ZERO FISCAL NOTES (ADM,GOV,DNR)
03/22/95 840 (H) CORRECTED STA RPT CS(STA) NT 2DP
2NR 1AM
03/22/95 841 (H) DP: JAMES, PORTER
03/22/95 841 (H) NR: GREEN, IVAN
03/22/95 841 (H) AM: ROBINSON
03/22/95 841 (H) 5 FNS (3-GOV, DHSS, DPS) 3/20/95
03/22/95 841 (H) INDETERMINATE FISCAL NOTE (LAW)
3/20/95
03/22/95 841 (H) 3 ZERO FNS (ADM,GOV,DNR) 3/20/95
03/31/95 (H) JUD AT 01:00 PM CAPITOL 120
04/05/95 (H) JUD AT 01:00 PM CAPITOL 120
04/10/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-43, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:18
p.m. on Monday, April 10, 1995. All members were present. The
meeting was teleconferenced to Kenai, Soldotna and Fairbanks.
CHAIRMAN BRIAN PORTER stated that the following bills would be
heard: CSHJR 9, CSHB 201, CSHB 202, and HB 130. He called Sam
Griswold forward to introduce HJR 9.
HJR 9 - SUIT RE POWS & MIAS AGAINST U.S & OTHERS
SAM GRISWOLD, Legislative Secretary to Representative Jeannette
James, Co-sponsor of HJR 9, gave a brief overview of what the
Resolution proposes. It requests the state of Alaska to file a
suit in the United States Supreme Court, joining other states that
have already done so. Basically we would request that all
documentation pertaining to those people missing in action (MIAs)
and prisoners of war (POWs) would be released in order to answer
the questions in controversy revolving around that issue.
Number 100
NANCY GOURLEY testified via teleconference from Kenai. She spoke
representing her brother who has been missing in action from Laos
since February 18, 1971, and also for her uncle who has been a
prisoner of war in Korea since July 5, 1950. Her family has
exhausted all other efforts to obtain a proper accounting of her
brother. The Department of Defense has proposed their theory on
the incidents and the recovery of his remains which consisted of a
single tooth. Her family has exhausted all of their efforts to
find out what really happened. They have never claimed it to be
probable that he survived this incident, only that it is possible.
The information that has been given to them is very questionable.
Documents have been fabricated. The Department of Defense will
confirm that her family has been lied to. She can prove that. All
in all they have been treated quite poorly as family members, in
that they did not hear anything at all from the Department of
Defense for over 20 years in regard to this incident. The
treatment they received and the information they were provided is
less than adequate for her family to feel assured within their own
hearts and minds that he has passed on. They honestly felt that
their family was the exception when it first came up. She did not
really dispel what the government was claiming to be true at first.
When they met with a number of other families for the first time,
they found they were just a part of the rule, that they were no
exception, that it was not just them, but it was family after
family after family that had been provided this contrary
information.
REPRESENTATIVE JOE GREEN asked Ms. Gourley if she had been lied to
by the federal government, or by other countries.
MS. GOURLEY answered that she had been lied to by the federal
government.
LEONARD EFTA, an ex-Government Issue (GI), testified via
teleconference from Kenai. The question that there may be MIAs
still living is a little bit more than he can stomach. He is very
glad to see this bill being introduced and hopes it will be
pursued. He would like to see this issue finished once and for
all.
REPRESENTATIVE CYNTHIA TOOHEY asked if there was an investigation
conducted about three years ago by the Bush Administration.
MR. EFTA was not sure.
MS. GOURLEY answered that there were the Murkowski hearings in
1986, in addition to the one that was held three years ago.
REPRESENTATIVE TOOHEY asked if Ms. Gourley knew the results of
those.
MS. GOURLEY said that the Murkowski hearings went up in the air
with the Challenger disaster. It was dropped in a pool of water.
The one point they could all agree on is that the United States did
leave live prisoners of war behind and that their fate is unknown.
That was the only undisputed point, however, no action has been
taken to pursue that issue.
SUSAN ROSS testified via teleconference. Her father served in
World War II, and her brother served in the Vietnam War. Neither
of them became an MIA or a POW, but she has two sons that would be
draft age right now, should the draft be reinstated. Her concern
as a patriot is the cynicism on the part of our citizens regarding
the treatment of veterans. This is relative to the cutback of
deficits, the experimentation conducted on military personnel which
has come to light in the media, and the apparent abandonment of
servicemen in various campaigns. She felt that getting behind a
bill like this would certainly put back a lot of confidence in the
minds and hearts of the people, not only those who have served, but
people such as her sons who might be called upon. Those people
would certainly think twice about whether or not to serve their
country when the payoff they will receive is to be abandoned to a
hostile country by the people who were chosen to protect them as
they were protecting our rights. She fully supports this bill.
GARY TYNDALL testified via teleconference from Fairbanks. He is in
favor of HJR 9. Similar Resolutions have been passed in 37 states
so far. This one is appropriate for Alaska because of our very
large veteran population, because we have a number of POW and MIA
family members in Alaska, and because of the high value that we as
Alaskans place on freedom. In 1973, near the close of the war,
there were peace talks in which our United States government asked
for the return of over 3700 POWs/MIAs by name. These were not
deserters, nor people who just vanished, but they were known or
suspected to be in the enemy hands. We only got back 591. Three
weeks later, the rest of these (over 3100), who we had reason to
believe were alive, were declared officially dead. They were
written off and abandoned. There was no explanation for this
conclusion or as to why their status had changed. Now, even more
than 22 years later, a report was filed that had never even been
opened. These people were just simply abandoned. In the last
couple of years, some elements of the government have admitted that
some Americans were left behind alive. We have proven electronic
and photo intelligence to that effect. They had defector
debriefings in both the Asian and Eastern European countries.
There have been live sightings by refugees, by Europeans working in
Southeast Asia.
MR. TYNDALL explained there are also those Vietnamese that know a
lot more than they admit. For instance, they selectively
segregated prisoners, and kept detailed records of captures,
losses, and shoot-downs. They even went so far as to early
excavate grave sites immediately after the event in order to store
American remains. It is an old practice to use prisoners and
remains as bargaining chips, as they did a long time ago with the
French. The records show pretty clearly that prisoners can survive
for many years in captivity. For example, just a couple of years
ago, the Soviets released a bunch of Japanese World War II
prisoners. Just last year we had the testimony of our own long
term POWs that were returned in 1973. I think all the evidence
should be examined before declaring a missing prisoner dead. This
should be established for our own country's future. The families
have a right to examine this evidence. It is still locked up after
20 or more years. Some of it has even been shredded when asked for
by investigators or Senate committees. This Resolution has the
effect of Alaska's willingness to join with other states in
petitioning to reaffirm these basic American rights. He encouraged
the Judiciary Committee's unanimous endorsement.
REPRESENTATIVE TOOHEY made a motion to adopt the committee
substitute version of the Resolution, which clarifies a section on
page 3, lines 10 - 14, but does not alter the substance. Seeing no
objection, CSHJR 9, Version K, was adopted.
Number 350
REPRESENTATIVE TOOHEY made a motion to move CSHJR 9(JUD), Version
K, out of committee with individual recommendations and zero fiscal
notes. Seeing no objection, it was so ordered.
CSHB 201 - PRISONER LITIGATION & APPEALS
Number 360
CHAIRMAN PORTER announced that they would begin taking public
testimony on the committee substitute (CS) for HB 201.
JIM MCCOMAS, president of Alaskans Against the Death Penalty,
testified via teleconference. He pointed out some ramifications of
HB 201 to the committee, in light of the tendency of two bills to
reenact capital punishment in Alaska. The bottom line is that the
significant substantive reduction of the post conviction relief
that this bill would authorize would have disastrous consequences
if Alaska ever did reinstate capital punishment. Claiming that
capital punishment is not the issue before us now is not an
adequate response to this concern. It is not an adequate response
because this committee does not know what the outcome is going to
be if the bill gets passed, and if we do not have the votes to stop
the death penalty next year. We certainly do not have the votes to
enact an exception to the legislation that this bill proposes
solely for purposes of capital punishment cases.
MR. MCCOMAS said there is a tendency, when we look at bills, to
look at them in sort of a piecemeal fashion. He did not feel that
committee members were looking at the consequences of the interplay
between this bill and the reenactment of the death penalty. In
this century, there have been at least 1,300 capital convictions
set aside, either on appeal or post-conviction relief. The vast
majority of those were not on a direct appeal. They almost always
occurred later at the federal level. Of course a lot of that has
to do with the availability of counsel in the earlier part of the
century.
MR. MCCOMAS stated the bottom line is that there are many
substantial legal issues which can be raised and litigated that are
not noticed in the early stages of litigation, which may be missed
by the lawyers who are handling the cases. The issue is life or
death to a possibly innocent person. We cannot afford that kind of
slip in our system. If we look at this specific proposal to
curtail post-conviction relief, for example, on page 19, a claim
could not be brought for post-conviction relief if it was based on
the admission or exclusion of evidence at trial. Many death
sentences have been set aside because of errors in the admission or
exclusion of evidence at trial that were raised on post-conviction
relief.
MR. MCCOMAS noted, for example, there is a whole line of cases
dealing with the inadmissability of psychiatric witnesses for the
state. These cases were undermined by statements obtained from the
accused during competency examinations. This applied to many death
cases in post-conviction proceedings. The fact that a defense
lawyer who tries the case makes mistakes, and an appellate lawyer
who writes an appeal does not perceive all of the issues in the
case, should not lead to the result that a person is put to death
in violation of the Constitution or laws of this state. That is
the heart of the objection. From a practical point of view, the
time limitation is totally unrealistic. The idea is that within
one year of a final appeal you ought to be able to find an attorney
and/or file. People call every week trying to find lawyers who
will look into ineffectiveness questions concerning their trial
counsel. These are cases that have occurred years and years ago.
There are many lawyers who refuse to get involved in such cases
because they do not want to be found in the position of making
charges against members of their own profession.
MR. MCCOMAS pointed out that an additional exclusion is that if
there has been a previous post-conviction relief application, there
cannot be another one. In these cases, people have been convicted
wrongfully, and this bill is preventing them from getting relief.
Lastly, he pointed out that the theme of this bill is "justice for
those who can afford it."
REPRESENTATIVE FINKELSTEIN wanted Mr. McComas to understand the
problems we have in dealing with things like capital punishment,
which is not part of the law now. He was not personally in support
of capital punishment but if that were to occur and if there were
actual changes in the way we treat these kinds of issues, then
prisoner litigation would be a factor at that time. It is very
hard for us to pass laws under a number of contingencies. He
considers them in the context of what the current laws are. We
certainly do not build laws around the death penalty.
MR. MCCOMAS understood that, and stated the only point he was
trying to make was that he looks at this session as two years, and
we know these death bills are going to be out next year. He felt
it was valid for the legislature to think about the implications of
this right now, because if next year we lack the vote to invoke the
death penalty, he did not believe we would have the votes to create
an exception to a piece of legislation which had already passed.
CHAIRMAN PORTER commented that he did not know who "we" included,
when Mr. McComas stated that "We know these death bills are coming
next year." He said to take him off the list of "we" because he
did not know that those bills were coming up.
MR. MCCOMAS answered that is the kind of thing he would love to be
proved wrong about.
REPRESENTATIVE TOOHEY opposed the death penalty because of the cost
of it. She doubted they would see a death penalty bill in the next
two or three sessions.
Number 575
MARGI MOCK, Supervisor, Appellate Section, Alaska Public Defender
Agency, testified via teleconference. She mentioned that appellate
defenders do not like filing frivolous cases. The court of appeals
has said that she has to brief every issue filed even if she feels
it has no merit. She felt this bill was legally flawed and was not
going to accomplish the purpose of cutting down on frivolous
litigation. It will create more work, and will not cut down on
court costs. We all want to cut down on frivolous litigation, but
you cannot stop litigants from filing lawsuits. She guessed you
could if you changed the Constitution, and you could also cut off
the hands of convicted people. This bill significantly changes the
way post-conviction releases are handled. Currently, applications
for post-conviction releases get filed with the court and then she
is appointed to represent the accused. Her current clients, who
are inmates, call and request that she represent them, which she is
required to do. She normally gets about five of those requests a
week. Because she has been doing that for a long time with
clients, she is usually able to dissuade them from filing frivolous
actions. This particular bill skillfully shifts her initial
responsibilities to the courts. Under this bill, there is not
going to be an opportunity to try and dissuade an inmate from
filing. They have got to be given the opportunity to be heard by
someone, but filings are not going to go down, they will go up,
because she will lose that opportunity to deal with them first.
The judges will have to try to understand the applications, which
are written by inmates who are often unsophisticated, uneducated,
and sometimes functionally illiterate. That takes time. Once the
trial judge understands the application, he/she has to do the
research and rule on it. This is more expensive. If you do not
believe her, take a look at the federal court which has adopted,
essentially, some form of assistance. In the federal court, this
work is not done by judges, and state judges are not going to do it
either. She would bet there would be a fiscal note asking that a
master be hired, like in the federal system, at $100,000, to do the
work. It does not cut down on bureaucracy or agency costs.
MS. MOCK said there is nothing in this bill that discourages post-
conviction relief. The court of appeals has already decided in
(indisc.) v. State, which is a case from two years ago, that you
get appointed counsel for post-conviction relief. So they are
going to get counsel because the court understands what the
drafters of this bill cannot seem to grasp no matter how many times
you tell them. That is that the appointment of counsel does not
encourage frivolous litigation. You actually streamline the
process by either discouraging an applicant from filing, or
rewording the claim in a form that can be understood and acted on
by the court. In fact, this bill has the potential for increasing
litigation because the real world experience is that inmates who
cannot get appointed counsel simply turn to jailhouse lawyers who
do not have any training at all and encourage ridiculous claims
with no regard for support of a legal authority or even a reliable
(indisc.).
MS. MOCK said you are not going to want to hear this, but you have
to allow inmates one shot to modify their sentence for any reason,
including proof of affirmative rehabilitation. This allowance has
to be afforded, because of those who are terminally ill that the
Department of Corrections does not have the money to pay for, or
for those persons who have demonstrated that they can be trusted in
the community. This gives them hope. There is considerably less
financial cost to the state in doing this. It would be easier for
her to say to an inmate, "Sorry, I cannot help you, but if you wait
until you have done X-amount of your sentence and then you give me
all of the paperwork to show me what you have done in the jail to
rehabilitate yourself," she would simply turn that material into
the judge to decide. That, as opposed to hours of drafting post-
conviction relief applications, which she is required to do for
people who have (indisc.).
MS. MOCK felt the bill had a number of provisions that do not make
sense and will not get you anywhere if you pass them. Section
09.19.017 requires initial judicial review of the merits of the
civil action before the court (indisc.). You can expect an
expensive fiscal note from the court on that. It is going to be
time consuming and expensive. This initial screening is required
by law in those cases in which an individual is unable to pay the
filing fee, so the distinction as to what claims undergo initial
review is based entirely on whether or not you have had a claim.
You do not have to have a law degree to see the problem with that.
This bill discriminates against two classes of people; one with
money and one without. The law says in order to discriminate,
there has to be a connection between the purpose of the litigation
and the law, and there is no connection. Lawyers file as many
frivolous lawsuits as people without lawyers. All of us know it is
not rational to decide that a branch of government is dependent
upon the size of a person's pocketbook.
MS. MOCK stated that regarding AS 09.19.019, there is another
problem. That says if you do not have any money, and you move
through the trial court, then the appellate court sends it back to
the trial court to decide whether you have merit for appeal. The
judges are going to have a large fiscal note on that, because they
are going to have to write a decision. In addition, the average
person can tell you that there are obvious problems with requiring
that poor people not be allowed to appeal until the very judge that
has decided the case against them has decided on the merits of the
appeal.
MS. MOCK referred to her personal favorite, AS 09.19.030 which
simply states that courts cannot order legal injunctions. That is
not a particularly novel concept. The point is that this bill is
"look good" legislation, but it will not stand up to judicial
scrutiny. Certain parts do not mean anything, and other parts are
just not going to cut down on litigation. She said they have to
create a safety valve and this is not going to do it.
Number 720
CHAIRMAN PORTER said sometimes we receive unclear, ambiguous
testimony, but we never have that problem when talking to Margi.
There is a bill dealing with terminally ill inmates, but there is
not one regarding limb-severing.
REPRESENTATIVE TOOHEY asked how much the filing fee is.
LAURIE OTTO, Deputy Attorney General, Criminal Division, Department
of Law, stated that she did not support the bill that Jim McComas
and Margi Mock were talking about, and she does not believe this
bill does the things they were talking about. In answer to
Representative Toohey's question, the filing fee for civil cases is
$100, and this bill would require indigent prisoners to pay 20
percent of the average monthly balance of their inmate account,
over a six month period. If they had an average monthly balance of
$5 over a six month period, they would have to pay a $1 filing fee.
If they had a $100 balance, they would have to pay a $20 filing
fee.
MS. OTTO stated there were some pretty important issues raised
which need to be discussed. Margi Mock's issue about equal
protection and payment of filing fees is exactly right on. It was
raised during the last committee hearing, and that problem was
fixed in the proposed CS that is before you now. Likewise, the
proposed CS addressed Representative Finkelstein's concern about
having to show due diligence twice under certain circumstances. We
have taken out the language that he was concerned about.
MS. OTTO explained that in regards to the testimony given by Mr.
McComas, she has a hard time addressing the death penalty because
we do not have the death penalty right now, and therefore cannot
accommodate it in this legislation even if we wanted to. She
personally does not support the death penalty. Based on her
experience with juries, it is not equitably applied, and therefore
she feels it would be wrong for the state to adopt it, cost or no
cost. She knows that the Governor shares that view; however, this
bill does not deal with death penalty cases.
MS. OTTO described the three components of the bill. One deals
with civil cases. Most of the comments you heard from both Mr.
McComas and Ms. Mock did not address the civil litigation part of
the bill. The next component deals with increasing the time limit
that is imposed on people before you can file a sentence appeal.
The third component deals with post-conviction relief actions.
Just to put this into context, not all of them are familiar with
the criminal justice system. There are a whole series of screening
mechanisms where cases get weeded out of the system. Cases are
referred to the District Attorney (DA)'s office for initial review.
The DA then screens them and decides which cases to file. Many
cases get washed out at that point. The case then goes to the
grand jury who can also wash out cases. The case then goes to the
trial court, who also decides whether or not it should proceed.
Then if the case goes to trial, the jury reviews it. Then there is
a direct appeal in the court of appeals, and potentially the
Supreme Court reviews it. Then you can go back and file a post-
conviction relief action that starts again in the trial court, then
it goes to the appellate court, then to the Supreme Court. What
this bill says is that at that point, unless there are exceptional
circumstances that are spelled out in the bill, you do not get any
more post-conviction relief actions in state court. You can still
go to the federal court system, but you cannot continue to litigate
and appeal over and over and over again. There has to be finality
at some point. Many judges in this state interpret the current
rule 35.1(h) that way, which says that you should be filing all of
your appeals at one time. We are trying to promote finality in
judgment. Since some judges do not interpret it that way, we are
trying to promote uniform application of the rules and say unless
something extraordinary happens, you only get one second round of
appeals, it is not even the first round of appeals. That would not
take away rights from people, even if we did have the death
penalty. Even if they did have the death penalty imposed on them,
they can still challenge their conviction on direct appeal, and
they still get to go back to the trial courts and appellate courts,
and then if they are not happy they can go to the federal court
system where there is extensive death penalty litigation.
MS. OTTO disagrees on substantive grounds that it is bad to say
that at some point you should not be able to appeal over and over
and over and over again, that you have to put your issues together
in one appeal. It is appropriate to say that if you are going to
file a post-conviction relief action, which again is a second round
of appeals to begin with, that you have to do it within two years
of the date of the conviction or within one year of the date that
your appeal was decided. The problem with extending this, and Mr.
McComas is correct, is that there are people with 1979 convictions
who are coming in this year and filing motions for post-conviction
relief. If they prevail on some kind of technical legal issue that
results in their conviction being overturned, where are the state's
witnesses? Where are the witnesses who were available during the
trial to testify about what occurred and why they were guilty and
why they injured the victim? In all of these cases, you have to
balance the rights of the defendant against the rights of the
victim and the rights of society. We are trying to do that
balancing act in a fair way, which would still give people access
to the courts, still give them the second round of appeals in post-
conviction relief actions, but put some realistic time limits on
it, so that if there is a problem, we are then able to re-litigate
it. If, in fact, somebody has evidence showing that they were
innocent, that would be procedures for hearing it under the
provisions of the bill.
MS. OTTO mentioned that Mr. McComas said the theme of the bill is
"justice for those who can afford it," and that those who cannot
afford it live in prison, while those who can afford it, get out of
jail. Again, if that is what the bill did, she would not be here
supporting it, because that is just repugnant. We should not have
a criminal justice system that is designed around giving advantages
to people who have money, and taking it away from those who do not.
This equal rights issue came up last time we heard the bill and
there was not a moment's hesitation in saying, "Yep, you are right.
That is wrong. We should change it," and that has been done. She
did not feel that analysis applied to the criminal sections of the
bill.
MS. OTTO mentioned that Marjorie Mock talked about how you have to
give people one motion to modify their sentence just so they can
let off steam. The purpose of the criminal justice system is not
to allow people to let off steam, it is designed to be fair. If
people think their sentence was not fair, they can appeal it. If
they think it should be modified under this bill within 60 days of
the day it was imposed, they can ask to have the court modify it.
If they think they are serving time inappropriately after that,
they can ask the Governor to grant them executive clemency. There
are safety valves in our system.
MS. OTTO addressed an issue brought up in a letter asserting that
the bill will have a particularly adverse affect on Native
Alaskans. Ms. Otto spent six years as both district attorney and
a private practitioner in Bethel. She spent a lot of her time in
public service, trying to make things better for rural Alaska.
They have channelled resources towards rural areas in order to
improve the law to Natives, who have in many instances been on the
short end of the stick in regards to the criminal justice system.
She is very sensitive to those particular issues. This bill does
not have an affect on Native Alaskans anymore than on non-Natives.
TAPE 95-43, SIDE B
Number 000
MS. OTTO said it would affect non-Natives more so, because there
has not been a single non-English speaking Native Alaskan who has
filed a civil suit against the state. Whether it is because
Natives are not disciplinary problems in the jail, which is true,
or whether the culture is not as litigious as that of Western
society. It is just not an issue. It is an emotional issue, but
not born out in fact.
Number 150
There was a brief discussion about who can and who cannot, and
under what particular circumstances a public defender can be
appointed. The circumstances under which a public defender can be
appointed are in AS 18.85.100.
Number 220
MR. MCCOMAS argued that according to this bill, if you have had
your direct appeal, and you had the "second bite of the apple,"
that is, you filed the petition in the superior court, and you have
received a ruling from the judge finding that you are not being
held in violation of the laws or the Constitution of the State of
Alaska; if you can afford it, you can have counsel for your appeal.
If you are indigent, under this bill, you have to do that appeal
yourself. What this really means is that it does not get done. To
make it fair for everybody, you should modify this legislation to
say there are no appeals allowed.
MS. OTTO asked if Mr. McComas was talking about section (c)(2),
rather than (c)(1).
MR. MCCOMAS said he was talking about (c)(2).
MS. OTTO felt he was making a good point and it may be good to
leave that section out.
MR. MCCOMAS said there is another good point he would like to make.
Motions to reduce sentences under this legislation are gone. Rule
35 (a) does not exist under this legislation. He felt it would be
worthwhile to solicit the views of the Department of Corrections on
this.
MS. OTTO stated that they have taken out the provision that allows
a sentence to be modified at any time if the circumstances have
changed. They combined what is currently in 35 (a) with 35 (b).
This bill is intended to allow people to make a motion to reduce
their sentence for any reason within the 60-day period.
REPRESENTATIVE TOOHEY made a motion to adopt CSHB 201(JUD), Version
G, dated 4/5/95 as a work draft. Hearing no objection, the CS was
adopted.
CHAIRMAN PORTER entertained a motion to amend the bill by removing
lines 10 and 11, calling it Amendment No. 1.
REPRESENTATIVE FINKELSTEIN made a motion to move Amendment No. 1.
Hearing no objection, it was so ordered.
CHAIRMAN PORTER stated there was another amendment offered,
Amendment No. 2:
Page 4, line 31, following "means":
Delete "an"
Insert "a civil"
Page 5, line 7:
Delete "the"
Insert "a"
Page 8, line 23:
Delete "new"
Delete "in law"
REPRESENTATIVE TOOHEY made a motion to move Amendment No. 2.
Hearing no objection, it was so ordered.
REPRESENTATIVE TOOHEY made a motion to move CSHB 201 (JUD) as
amended out of committee with individual recommendations and fiscal
notes as attached. Hearing no objection, it was so ordered.
HB 202 - JUVENILE DELINQUENCY PROCEEDINGS
Number 500
MS. OTTO, Deputy Attorney General, Criminal Division, Department of
Law, representing Governor Knowles, introduced HB 202. When the
Governor first started looking at introducing crime legislation, he
asked that those involved in putting the legislation together,
including herself, talk to people who work in the system, such as
policemen, teachers, kids, parents, and people at McLaughlin, to
see what they felt would be most useful in dealing with the
juvenile crime problem which is rising dramatically, particularly
in the urban areas of the state. The single, most frequent comment
was that we need to get parents more involved. Even if you cannot
get those feelings and emotions involved, just having the parents
participate in the process would be a big step forward. When she
first started juvenile delinquency hearings in 1982, she was
shocked when parents did not show up. Under current law, parents
do not have to attend juvenile delinquency hearings for their
children. The most important thing this bill does is require
parents to attend juvenile delinquency hearings, unless they can
show good cause for not participating. The second problem people
identified was that in many instances the kids' problems are
intricately tied to the problems of the family and the parents. If
you can just get them into mediation or some kind of family
counseling, you would have a much bigger impact on the child's
delinquency problems than anything you could do with the child
alone.
MS. OTTO said the second thing the bill does is in Section (2),
subsection (b). That gives the court the discretion to order
parents to participate in treatment with their children, and also
to become involved in monitoring the child's probation conditions
and to report those conditions to the court. The payment for this
is set out in subsection (c) and the mechanism for recovery is set
out in Section 1 of the bill. If the parents have available
insurance or other resources, that has to be used to pay for the
treatment. If they are indigent and cannot afford it, then the
Department of Health and Social Services would pay for the
treatment, and the recovery would be taken from the parents'
permanent fund dividend (PFD) checks.
MS. OTTO explained that the third thing the bill does is give the
court the discretion to order the minor's parent as well as the
minor to pay restitution. We did modify this in the Health and
Social Services Committee to say that if the minor was a runaway
and had been reported missing, the parents would not be held
responsible for restitution.
MS. OTTO described the final thing the bill does. Orders of
restitution in juvenile cases can be enforced as civil judgments,
which is what happens in adult cases. If you get an order of
restitution made against you, the victim can file it with the court
and collect, using civil collection procedures, but in juvenile
cases, the order of restitution disappears when the child leaves
the jurisdiction of the juvenile court. It would allow the
restitution award to actually be recoverable, where in many cases
right now, it is not recoverable.
REPRESENTATIVE FINKELSTEIN asked if the provision applying to a
child who is a runaway applies to all provisions, such as treatment
costs, or just to restitution.
MS. OTTO answered that it only applies to the restitution award.
Even if the child is a runaway, we would like the parents to be
attending the juvenile delinquency hearings, and to become involved
in treatment. We think that is very important, but we do not want
to force the parents to pay money judgments if they have no ability
to control their child's behavior because the child was a runaway.
The idea is to intervene before these juveniles become adults and
adult criminals.
Number 650
CHAIRMAN PORTER added that this would cause the parents to be
responsible, without making the level of responsibility too hard to
meet if for whatever reason, your child is a runaway.
REPRESENTATIVE FINKELSTEIN asked if someone from the Department of
Health and Social Services could address their general philosophy
on this.
DIANE WORLEY, Director, Division of Family and Youth Services
(DFYS), Department of Health and Services, stated that the division
supports this bill. The philosophy that the division operates from
is that we are looking to provide family centered services. As we
work with families and children, we need to include all family
members in dealing with the problems and in looking for solutions
to these problems, and towards getting to the point where the
family is able to deal with it, and to be in a healthy position.
With that in mind, having parents involved with their children, and
to help be responsible for the actions of their children, moves us
towards this end. We cannot work just with the child and pull the
child out of the family setting, and try to make a change either in
treatment or in their restitution, if they are then going back into
the same setting where nothing else has changed. She was not
implying that all of the children's actions are directly related to
how the parents have dealt with that child in the past, but it is
an environmental issue as well, that we come from environments, and
certain things are a part of that.
MS. WORLEY has only worked at DFYS for a short time and prior to
that time, she did work in the direct service field. Working
closely with the whole family, having the parents involved, makes
a tremendous amount of difference. There are also a lot of parents
out there who will call a service provider and say, "I would like
an appointment for my child. Please fix him/her." We would say we
would be glad to help, but that we need everyone involved in order
to work on the situation. It is not an isolated situation in most
cases.
REPRESENTATIVE DAVIS made a motion to move CSHB 202(HES) out of
committee with individual recommendations and attached fiscal
notes.
Hearing no objection, it was so ordered.
HB 130 - REGULATION ADOPTION PROCEDURES AND REVIEW
Number 710
REPRESENTATIVE PETE KELLY, sponsor of HB 130, introduced the bill.
HB 130 has gone through many changes, and if you were in State
Affairs Committee, you will hardly recognize this bill. We started
out with a very large bill attempting to change the Administrative
Procedures Act. Through working with the Administration,
particularly Deborah Behr from the Department of Law, we have found
ways to lighten it up, and work within the existing Administrative
Procedures Act to bring about regulation reform without such a
major rewrite of the bill.
REPRESENTATIVE GREEN moved to adopt Version H of CSHB 130 as the
working draft. Hearing no objection, it was so ordered.
REPRESENTATIVE KELLY explained particular sections. Section 1
makes sure that the existing Regulation Review Committee can review
proposed regulations, not just final regulations. That has been a
problem. This section also brings the Regulation Review Committee
into the loop of the regulations writing process so that the
legislative intent of the statutes that prompted the regulations
can be given more attention.
REPRESENTATIVE KELLY said Section 3 lists some of the reasons the
Governor can return regulations to the agencies before they are
filed. Section 3 also gives the Governor the power to do this.
Even though he currently has the power, it is not in statute at
all, that the Governor can either delegate the authority to review
and return regulations, or to do so himself. One of the reasons
the Governor can return regulations to agencies is if the
regulations are inconsistent with faithful execution of the laws.
The second reason is to give agencies a chance to address the
current concerns of the legislature, so the legislature has been
brought into the loop before a regulation has been finalized, and
they have made comments on the regulation before the Governor
returns it to the agency. A 30-day public testimony window exists
when the legislature is somehow left out of that loop or cannot
participate in that process; now they have the opportunity to get
into the process.
REPRESENTATIVE KELLY described Section 4. The Regulation Review
Committee will receive a copy of proposed regulations. Currently
they just receive a notice and a summary of regulations. The
effects of Sections 1 - 4 are not revolutionary in regulation
reform, but the intent is to stop that old problem where the
Administration says they are just carrying out the intent of the
legislature, and the legislature says that the Administration has
ruined a perfectly good statute by writing a bad regulation on it.
REPRESENTATIVE KELLY explained that Section 5 strengthens the
public hearing requirement. It requires the agencies to pay
particular attention to factual and substantive comment. One
problem with public testimony meetings is that they are often
overwhelmed with expressive opinions, and the agencies are not
required to respond to any testimony. Section 5 directs them to
respond to public comments. Later on we will require them to keep
track of the written comments and how it was used or not used in
designing the regulations that come out of that public testimony.
We will also require the agencies to focus on costs of regulations
to private enterprise. There have been problems with the fiscal
notes attached regarding the cost of compliance for regulations.
This is weaker language, but it seems that the only way to get rid
of that $500,000 fiscal note, is to put it into statute and direct
them to pay attention to cost.
REPRESENTATIVE KELLY explained that Section 6 is a new section
which requires agencies to record substantive comment they receive
in the comment portion of the meetings. This will make sure that
they are in tune to the people who are ultimately affected by these
regulations, through creating a valuable paper trail.
REPRESENTATIVE KELLY explained that Section 10 would put some teeth
into the bill, but he would agree to go along with the Department
of Law and the Department of Environmental Conservation (DEC),
deleting Section 10, and try to figure out a way to put some teeth
into the cost of compliance. Representative Green had raised some
questions in the State Affairs Committee about economic
feasibility. Section 10 deals with economic feasibility, but since
we would like to delete Section 10, we will come up with something
else to address the issue of economic feasibility. In summary, HB
130 codifies how the legislature and the Administration deal with
regulations so that both are held responsible. We have required
agencies to compile a lot more information than they have done
before, so they can provide this to the legislature. The result
will be that the Administration will have ultimate responsibility,
and both the Administration and the legislature, who are elected
officials, will now be held responsible for regulations. The other
result will be that the agencies will be held accountable for
paying strict attention to cost.
Number 860
REPRESENTATIVE GREEN asked if the questions raised in the State
Affairs Committee, ranging from constitutionality to inviting
litigation, were taken into consideration in Version H.
REPRESENTATIVE KELLY answered they absolutely were. This version
was the result of many hours of work with the Department of
Administration to come to some kind of agreement where we are not
crossing constitutional lines, and yet we can still provide
regulation reform.
REPRESENTATIVE GREEN expressed concerns about the delegation of
authority to the Lieutenant Governor, who has merely a ministerial
role, rather than a policy making decision role. Does the
delegation of authority that is included in this version pass with
that, or is that still a valid concern, that the role of the Lt.
Governor is ministerial?
REPRESENTATIVE KELLY answered that it is not the intent of this
legislation to pass the authority to the Lt. Governor, which is
done at the will of the Governor, so the Governor can or cannot
pass the authority on. It is his or her responsibility to do so.
That is how we address the constitutionality of it. No one is
requiring him to do that, but he may.
Number 875
REPRESENTATIVE GREEN said Representative Kelly would like Section
10 removed, and the questions brought up in State Affairs about
that will be addressed later. Does this mean later on in this bill
when it goes to Finance, or in a different bill?
REPRESENTATIVE KELLY said he was committed to deal with that by the
time it gets to Finance.
TAPE 95-44, SIDE A
Number 000
REPRESENTATIVE KELLY continued, stating that he had spoken with Len
Verrelli from DEC, since they needed a little time to work on it,
so he committed to Mr. Verrelli that he would just pull it from
this draft and then reintroduce it by the time it gets to Finance,
if it should pass from this committee. Then hopefully it will be
a new and improved bill, or possibly not. It may just be one of
those things that crosses constitutional lines or just does not
make sense, but we will certainly explore that within the next week
or two.
REPRESENTATIVE DAVIS asked Representative Kelly if he was proposing
to eliminate Sections 5 and 10.
REPRESENTATIVE KELLY clarified that he only intended to eliminate
Section 10. The reference he had made to Section 5, is to
determine the cost of compliance for regulations which has been
producing large fiscal notes. The attempt in this draft was to
give the departments a little more latitude when addressing costs
so they would not have so many fiscal notes. However, Section 10
essentially says that DEC or any other agency cannot outlaw a
lawful endeavor by making the cost of carrying out that endeavor so
high, that in dealing with the regulations, they have essentially
outlawed that endeavor. There were some problems with placer
mining. The costs were so high, in dealing with the regulations,
that the DEC has essentially outlawed that endeavor. Placer mining
was essentially outlawed by regulation, because of the absurd water
quality standards. We were trying to deal with that in Section 10.
All we really wanted to deal with in Section 5 was these wild
regulations that do not happen very often, but they do happen
sometimes, and we wanted to deal with those in Section 10, by just
taking, not just the cost of compliance, which was addressed in
Section 5, but by taking it, and addressing in this draft the level
of the absurd water quality standards up to the tenth power, when
dealing with parts per million, and per billion and quadrillion.
We are going to try to deal with the department to resolve that
problem.
CHAIRMAN PORTER said that the first version of Section 5 required
departments to determine the cost of compliance, which led to
substantial fiscal notes. Now we are just asking that they at
least look at it and give it some consideration.
REPRESENTATIVE DAVIS made a motion to remove Section 10, which is
page 5, lines 13 - 23.
REPRESENTATIVE FINKELSTEIN asked if the public testimony was
completed.
CHAIRMAN PORTER asked if there were any others wishing to testify
on HB 130. He announced the amendment would be held in abeyance
momentarily.
DEBORAH BEHR, Regulations Attorney, Department of Law, said she has
worked very closely with the sponsor on this bill, and she is quite
pleased with the language changes. She offered her assistance in
working further on any parts of the bill. She explained that in
Section 3, the sponsor is correct to say the Governor has the
authority to delegate authority. All this does is put something in
statute that he already has the authority to do. On page 2, line
7, where we are excluding regulatory boards and commissions, that
was done at her suggestion because of the problem of changing the
relationship of boards that are independent, such as the State
Board of Education, with the Governor. The sponsor indicated they
did not want to change that relationship.
MS. BEHR explained that the words "regulatory boards and
commissions", are (indisc.) Constitution. We really should be
using phrases like "boards and commissions that have the authority
to adopt regulations." She has had several boards call her asking
if they are in or out. She spoke with the sponsor and the
sponsor's staff, and their goal was to not change the relationship
of any of the regulatory boards. That will clear it up. She
wanted to take out "regulatory" and put in "except for boards and
commissions that are authorized by law to adopt regulations." You
would be doing that on page 2, line 7, and on page 4, line 3. She
felt that would be consistent with what the sponsor and the
sponsor's staff were talking about.
MS. BEHR also talked about page 3, lines 28, 29 and 30. We are
getting cost information from the people who know it best, the
regulated population. She said it troubles her to see departments
and agencies trying to guess the cost of a private business. We
cannot accurately do that. It would be very hard for us to get
that information, and once we got the information, there would be
the argument that a competitor could get it, and it is just real
problematic. She likes this solution where the regulated public
tells us what the problem is and we have an obligation to seriously
consider that.
MS. BEHR explained page 4, line 4. Right now, state agencies have
an obligation under the law to seriously consider public comments
they receive. There is no obligation for them to write a report as
to whether they did or did not consider your comments. Departments
work different ways. For example, some departments have briefing
meetings with their commissioner, who makes the decision as to
whether the comments are in or out. Other departments pull
together a summary sheet of comments without being very specific on
who said what. She was concerned that this may have a cost, but
maybe for public policy reasons it would be a cost you are willing
to bear. The DEC is required to keep a detailed analysis on use of
public comments for many of their federal programs.
MS. BEHR echoed the sponsor's suggestion to remove Section 10. It
is new language, and she would be willing to work with the sponsor
to come up with some language that would work for him, and still
meet his intent. She felt there was substantial improvement, in
the legal sense, from the previous version of the bill. She was
willing to work with the committee and the sponsor on it.
REPRESENTATIVE TOOHEY said she was thrilled and hoped that on page
3, lines 28, 29 and 30, that you would consider that. We have
heard testimony that is against the regulation because it is
unreasonable and causes the shutdown of small businesses. Are you
really telling me that you were going to listen to that?
MS. BEHR answered that each adopting agency, under the law, has an
obligation to seriously consider all comments, and if a regulatory
industry does not feel they are being treated fairly, they can test
it. Most commissioners are very responsive to a lot of public
comments and also letters from legislators.
REPRESENTATIVE TOOHEY asked if there was any correlation between
the federal and state regulations, if this came down as a mandate
by the federal government, then their hands would be tied. Is that
correct?
MS. BEHR answered that when something is a mandate for the federal
government, we, as a state, sometimes have a decision whether or
not we want to participate in the program. That is fine. We do
not take the federal money, and we do not take the strings
attached. A lot of the federal laws are not designed for a small
state with small businesses and do not match well for Alaska.
REPRESENTATIVE FINKELSTEIN asked about the change in the Lt.
Governor's role.
MS. BEHR answered that initially the way the bill was drafted, the
Lt. Governor could return regulations back to a state agency for
any reason. She has concerns on two fronts. One is that our
Constitution puts the Governor at the head of the Executive Branch,
and so we could have the Governor and the cabinet all thinking that
regulation was very good for the state, and if the Lt. Governor
disagreed with that, he/she could send that back and thwart our
Constitution.
REPRESENTATIVE FINKELSTEIN asked what the change was here in the
Lt. Governor's powers. He asked if she was just referring to a
previous version of the bill. It was confusing as to whether or
not the bill itself would change the powers of the Lt. Governor.
MS. BEHR said the changes she was talking about were just from the
previous version.
REPRESENTATIVE FINKELSTEIN mentioned he had not seen the previous
version, that is where he had gotten lost. He said apparently some
regulations go to the Governor, and some do not.
MS. BEHR said that in practice now, when there is a regulation
project that is controversial, they will discuss it with the
Governor at a cabinet meeting. He may set up mini-cabinets between
the various departments affected, and she does not see very many
regulations going back under this section. The policy will be set
up-front, as it is now. As for enabling the agencies to respond to
specific issues raised by the Regulation Review Committee, she
hoped the Regulation Review Committee would be right there in the
beginning telling us what the problems were.
REPRESENTATIVE FINKELSTEIN asked if someone can file an appeal,
saying the regulation cannot go into effect because the public
process was not followed properly, or because it was not reviewed
by the Governor.
MS. BEHR was concerned about this record section. She could see
somebody challenging an environmental regulation because an agency
did not keep an adequate record, and under the Administrative
Procedures Act, you can get an injunction and set it aside if there
is not an adequate record. But the court right now requires that
there be somewhere in the state agencies, some documentation of
their decision making. This is going to formalize it more. That
is a public policy call whether or not you believe the benefits
from formalizing this in a record are worth the potential that a
regulation could be set aside.
JOHN LINDBACK, Chief of Staff for Lieutenant Governor Ulmer,
thanked the staff for working closely with the Administration on
this bill. The draft committee substitute incorporates a number of
the changes suggested by the Administration so far. The
Administration is very interested in regulatory reform, and is
encouraging all of the bill sponsors on bills dealing with
regulations to pursue a consensus approach, and work with the
Administration during the interim on a comprehensive approach to
regulatory reform. In regards specifically to HB 130, the
Administration is neutral on the bill. With regards to the major
focus of the bill, we must at least ask the question about the
necessity of it. The Governor right now can stop regulations if he
wants to. All it takes is a phone call or a conversation with the
appropriate commissioner. This bill adds one more step to the
regulatory process. After the department is done, it must go back
to the Governor's office, or to the Lt. Governor's office, if it is
delegated in that direction, for one more review. That is not
necessarily bad; we only question whether or not it is necessary
since the Governor is at the front end of this process and can stop
regulations any time he wants to. He said the original version of
the bill would require one new position that would be responsible
for reviewing regulations. The Governor's office would need to
look at this committee substitute version of the bill to determine
whether or not they would still need such a position.
Number 425
REPRESENTATIVE GREEN said there is a significant outcry from the
public that we are being strangled by regulations. If the Governor
was amenable to do something, you would think that process would
have already started, and he did not see that happening. That
seems to be the reason for the bill, either to light the fire, or
to make it happen.
PAM NEAL, President, Alaska State Chamber of Commerce, said they
were very supportive of CSHB 130. They have been working with the
sponsor and following this legislation from conception to the
present form. It essentially addresses the concerns of the
business community of the state. Too often our comments and our
involvement in the regulatory process seem to fall upon deaf ears.
We never see the results of any comments we have made, and feel
this bill would help that. We have also had trouble figuring out
where to point the finger if things are not going well. Where do
you go to make it happen, to make sure you are at least heard? We
feel this would open up the process and provide some
accountability. We are very supportive of this piece of
legislation.
CHAIRMAN PORTER entertained the motion to the change on pages 2 and
4, as suggested by the Department of Law, and call it Amendment No.
1. This will be on page 2, line 7, and on page 4, line 3, to
delete the word "regulatory", and then after the term "boards and
commissions", add "or authorize by law to adopt regulations".
REPRESENTATIVE TOOHEY made a motion to move amendment No. 1, as
described. Seeing no objection, it was so ordered.
REPRESENTATIVE TOOHEY made a motion to move Amendment No. 2,
deleting on page 5, Section 10, lines 13 - 23. Seeing no
objection, Amendment No. 2 passed.
REPRESENTATIVE TOOHEY made a motion to move CSHB 130(JUD), version
H out of committee with individual recommendations and attached
fiscal notes. Seeing no objection, it was so ordered.
ADJOURNMENT
The House Judiciary Committee adjourned at 3:25 p.m.
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