Legislature(1999 - 2000)
03/03/1999 01:10 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 3, 1999
1:10 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Joe Green
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 9
Urging the President of the United States and the Congress to act
to ensure that federal agencies do not retain records relating to
lawful purchase or ownership of firearms gathered through the Brady
Handgun Bill instant check system.
- MOVED CSHJR 9(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 3(RLS)
"An Act relating to the crimes of murder, solicitation to commit
murder in the first degree, conspiracy to commit murder in the
first degree, manslaughter, and criminally negligent homicide;
relating to homicides of children; relating to registration as a
sex offender or child kidnapper; relating to the crime of
interference with custody of a child or incompetent person; and
providing for an effective date."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5
"An Act relating to vouchers for education; and providing for an
effective date."
- HEARD AND HELD
HOUSE BILL NO. 83
"An Act relating to the licensing of, acts and practices of, notice
filings required of, duties of, registration of, capitalization of,
financial requirements for, bonding of, coordinated securities
examinations of, recordkeeping by, and documents filed by certain
securities occupations; relating to public entity investment pools;
relating to investment advisory contracts; relating to the
examination of records of certain securities occupations; relating
to federal covered securities; relating to the registration of
securities; relating to the general exemptions for securities and
transactions; relating to offers of securities on the Internet;
relating to the confidentiality of investigative files under the
Alaska Securities Act; relating to the payment by certain
securities occupations of expenses and fees of investigations and
examinations; relating to petitions to superior court by the
administrator to reduce civil penalties to judgment; exempting
certain violations of the Alaska Securities Act from criminal
penalties; relating to time limitations in bringing court actions
for violations of the Alaska Securities Act; relating to the
affirmative defense of timeliness in court actions relating to
securities; prohibiting certain lawsuits involving buyers of
securities; relating to time limitations for bringing court actions
involving the receipt of a written offer related to securities;
relating to offers to repay buyers of securities; relating to
notification of certain securities occupations regarding
administrative hearings; relating to fees established by the
administrator; relating to a sale, a purchase, or an offer to sell
or purchase under the Alaska Securities Act; relating to the
locations of offers to buy or sell; relating to consent to service;
amending the Alaska Securities Act definitions of 'agent,'
'broker-dealer,' 'person,' 'Securities Act of 1933,' and
'security;' defining for purposes of the Alaska Securities Act
'advisory client,' 'advisory fee,' 'advisory services,' 'Bank
Holding Company Act of 1956,' 'clients who are natural persons,'
'federal covered adviser,' 'federal covered security,' 'Federal
Deposit Insurance Act,' 'Home Owners' Loan Act,' 'investment
adviser representative,' 'Investment Advisers Act of 1940,'
'investment advisory business,' 'investment advisory contract,'
'Investment Company Act of 1940,' 'NASDAQ,' 'National Securities
Markets Improvement Act of 1996,' 'notice filing,' 'place of
business,' 'principal place of business,' 'Securities Exchange Act
of 1934,' 'securities business,' 'state investment adviser,'
'substantial portion of the business,' 'supervised person,' and
'viatical settlement'; relating to the title of the Alaska
Securities Act; relating to the definitions in the Alaska
Securities Act of 'assignment' and 'investment adviser'; relating
to implementation of the changes to the Alaska Securities Act; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 67
"An Act relating to release of certain persons alleged to have
committed certain sexual offenses."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 3
"An Act relating to controlled substances and to the possession and
distribution of certain chemicals."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 9
SHORT TITLE: DESTROY BRADY BILL RECORDS
SPONSOR(S): REPRESENTATIVES(S) CROFT, James, Dyson, Green, Brice,
Therriault, Berkowitz, Foster, Harris, Coghill, Hudson, Morgan,
Halcro, Austerman, Ogan, Kott, Cowdery, Phillips, Smalley,
Whitaker
Jrn-Date Jrn-Page Action
1/27/99 92 (H) READ THE FIRST TIME - REFERRAL(S)
1/27/99 92 (H) STATE AFFAIRS, JUDICIARY
1/29/99 106 (H) COSPONSOR(S): FOSTER, HARRIS,
COGHILL
2/01/99 121 (H) COSPONSOR(S): HUDSON, MORGAN, HALCRO
2/01/99 121 (H) COSPONSOR(S): AUSTERMAN
2/08/99 172 (H) COSPONSOR(S): OGAN, KOTT, COWDERY
2/12/99 209 (H) COSPONSOR(S): PHILLIPS
2/16/99 227 (H) COSPONSOR(S): SMALLEY
2/18/99 (H) STA AT 8:00 AM CAPITOL 102
2/18/99 (H) MOVED OUT OF COMMITTEE
2/18/99 (H) MINUTE(STA)
2/19/99 250 (H) STA RPT 5DP 1NR 1AM
2/19/99 250 (H) DP: JAMES, SMALLEY, COGHILL, HUDSON,
2/19/99 250 (H) WHITAKER; NR: KERTTULA; AM: OGAN
2/19/99 250 (H) ZERO FISCAL NOTE (H.STA)
2/19/99 250 (H) REFERRED TO JUD
2/19/99 268 (H) COSPONSOR(S): WHITAKER
3/03/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 3
SHORT TITLE: CRIMES OF MURDER & CHILD MURDERS
SPONSOR(S): SENATOR(S) HALFORD, Phillips, Donley, Green, Leman,
Taylor, Pearce, Lincoln, Kelly Pete, Kelly Tim, Ward, Miller,
Mackie
Jrn-Date Jrn-Page Action
1/19/99 13 (S) PREFILED RELEASED - 1/8/99
1/19/99 13 (S) READ THE FIRST TIME - REFERRAL(S)
1/19/99 13 (S) JUD, FIN
1/22/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
1/22/99 (S) MOVED OUT OF COMMITTEE
1/22/99 (S) MINUTE(JUD)
1/25/99 76 (S) JUD RPT 3DP 1NR
1/25/99 76 (S) DP: TAYLOR, HALFORD, ELLIS;NR:
TORGERSON
1/25/99 76 (S) FISCAL NOTE (COR)
1/25/99 76 (S) INDETERMINATE FN (ADM-2)
1/25/99 76 (S) ZERO FISCAL NOTE (LAW)
2/02/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
2/02/99 (S) MINUTE(FIN)
2/02/99 135 (S) FIN RPT 9DP
2/02/99 135 (S) DP: TORGERSON, PARNELL, PHILLIPS,
GREEN,
2/02/99 135 (S) PETE KELLY, ADAMS, WILKEN, LEMAN,
DONLEY
2/02/99 135 (S) PREVIOUS INDETERMINATE FNS
(ADMINISTRATION-2)
2/02/99 135 (S) PREVIOUS ZERO FN (LAW)
2/02/99 135 (S) PREVIOUS FN (COR)
2/16/99 (S) RLS AT 11:40 AM FAHRENKAMP RM 203
2/16/99 (S) MINUTE(RLS)
2/17/99 269 (S) RULES TO CALENDAR AND COMMITTEE
SUBSTITUTE NEW TITLE
2/17/99 269 (S) PREVIOUS FN (COR)
2/17/99 269 (S) PREVIOUS INDETERMINATE FNS (ADM-2)
2/17/99 269 (S) PREVIOUS ZERO FN (LAW)
2/18/99 293 (S) READ THE SECOND TIME
2/18/99 294 (S) RLS COMMITTEE SUBSTITUTE ADOPTED
UNAN CONSENT
2/18/99 294 (S) ADVANCED TO THIRD READING UNAN
CONSENT
2/18/99 294 (S) READ THE THIRD TIME CSSB 3(RLS)
2/18/99 294 (S) COSPONSOR(S): PEARCE, LINCOLN, PETE
2/18/99 294 (S) KELLY, TIM KELLY, WARD, MILLER,
MACKIE
2/18/99 294 (S) PASSED Y19 E1
2/18/99 295 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
2/18/99 297 (S) TRANSMITTED TO (H)
2/19/99 248 (H) READ THE FIRST TIME - REFERRAL(S)
2/19/99 248 (H) JUDICIARY, FINANCE
3/03/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 5
SHORT TITLE: VOUCHER SYSTEM FOR EDUCATION
SPONSOR(S): REPRESENTATIVES(S) KOHRING, Coghill
Jrn-Date Jrn-Page Action
1/19/99 19 (H) PREFILE RELEASED 1/8/99
1/19/99 19 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 19 (H) HES, FINANCE
2/05/99 147 (H) COSPONSOR(S): COGHILL
2/10/99 184 (H) SPONSOR SUBSTITUTE
INTRODUCED-REFERRALS
2/10/99 184 (H) READ THE FIRST TIME - REFERRAL(S)
2/10/99 184 (H) HES, FINANCE
2/16/99 (H) HES AT 3:00 PM CAPITOL 106
2/16/99 (H) HEARD AND HELD
2/23/99 (H) HES AT 3:00 PM CAPITOL 106
2/23/99 (H) WAIVED OUT OF COMMITTEE
2/24/99 306 (H) HES REFERRAL WAIVED
2/24/99 307 (H) JUD REFERRAL ADDED
2/24/99 307 (H) REFERRED TO JUD
3/03/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
BRIAN JUDY, Alaska State Liaison
National Rifle Association of America
Institute for Legislative Action
555 Capitol Mall, Suite 455
Sacramento, California 95814
Telephone: (916) 446-2455
POSITION STATEMENT: Testified in support of HJR 9.
CARL ROSIER, Vice President
Alaska Outdoor Council;
Board Member, Territorial Sportsman Incorporated
8298 Garnet Street
Juneau, Alaska 99801
Telephone: (907) 789-9117
POSITION STATEMENT: Testified in support of HJR 9.
DEL SMITH, Deputy Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4322
POSITION STATEMENT:
SCOTT T. CALDER
P.O. Box 75011
Fairbanks, Alaska 99707
Telephone: (907) 474-0174
POSITION STATEMENT: Testified in support of HJR 9, and testified
against SB 3.
JULI LUCKY, Researcher
for Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Provided sponsor statement for SB 3.
SENATOR RICK HALFORD
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Sponsor of SB 3.
DAVID HUDSON, First Sergeant
Division of Alaska State Troopers
Department of Public Safety
5700 East Tudor Road
Anchorage, Alaska 99507-1225
Telephone: (907) 269-5655
POSITION STATEMENT: Testified on SB 3.
BLAIR McCUNE, Deputy Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on SB 3.
ROBIN LOWN, Vice President
Alaska Peace Officers Association
P.O. Box 33885
Juneau, Alaska 99803
Telephone: (907) 463-7188
POSITION STATEMENT: Testified in support of SB 3.
ANNE D. CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified in support of SB 3.
RANDY LORENZ, Researcher
for Representative Vic Kohring
Alaska State Legislature
Capitol Building, Room 421
Juneau, Alaska 99801
Telephone: (907) 465-2186
POSITION STATEMENT: Presented sponsor statement for SSHB 5.
ANNE KILKENNY
P.O. Box 870163
Wasilla, Alaska 99687
Telephone: (907) 376-6225
POSITION STATEMENT: Testified on SSHB 5.
JOHN CYR, President
National Education Association-Alaska
114 Second Street
Juneau, Alaska 99801
Telephone: (907) 586-3090
POSITION STATEMENT: Testified against SSHB 5.
CECILIA PALIVODA
H.C. 60, Box 4497
Delta Junction, Alaska 99737
Telephone: (907) 895-1074
POSITION STATEMENT: Testified on SSHB 5.
ACTION NARRATIVE
TAPE 99-9, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:10 p.m. Members present at the call to order
were Representatives Kott, Murkowski, Rokeberg, Croft and Kerttula.
Representative James arrived at 1:30 p.m.
HJR 9 - DESTROY BRADY BILL RECORDS
CHAIRMAN KOTT announced the first order of business is HJR 9,
Urging the President of the United States and the Congress to act
to ensure that federal agencies do not retain records relating to
lawful purchase or ownership of firearms gathered through the Brady
Handgun Bill instant check system.
CHAIRMAN KOTT called on Representative Eric Croft, sponsor of the
bill.
Number 0123
REPRESENTATIVE CROFT stated HJR 9 deals with a conflict between the
statutes authorizing the instant check system for gun purchases of
the Brady Handgun Bill and the regulations promulgated pursuant to
those statutes. In other words, the regulations implementing the
instant check system do not fit with the statutes. The Brady
Handgun Bill specifically said that there will not be a federal
registry of lawful gun owners. The language from the Brady Handgun
Bill reads, "all records shall be destroyed of the system with
respect to the call other than the identifying number and date and
all records system relating to the person or transfer." In his
opinion, that language is clear. The regulations originally said
that records could be kept for 18 months then it was reduced to 6
months, and as Representative Murkowski noted before the meeting
started a possible further reduction was considered on February 28,
1999. He is not aware of the results of that meeting, however. It
was not a matter of revisiting whether or not to keep the records
at all, but just a change in the period of retention. Although the
statute passed by Congress, did not say immediately destroy, there
is a difference between the term "keeping" and the term
"destroying". In this case, the regulations propose keeping not
destroying.
Number 0349
REPRESENTATIVE MURKOWSKI asked Representative Croft if it is
reduced to a 48-hour retention for example, as the result of the
review, what would that do to the joint resolution.
Number 0375
REPRESENTATIVE CROFT replied if it is reduced to zero the
resolution is not needed. Forty-eight hours makes it less
troublesome, but any keeping of records is troublesome from a legal
standpoint because the regulations do not comply with the statutes.
In addition, this is such a hot topic and a well-known concern in
the gun owner community that a conscious decision should be made up
front. Mr. Del Smith from the Department of Public Safety will
testify that the state did not need to keep this information for
audits or any other purposes when it managed the information. An
audit can be done with the identifying number and date - what the
statute allows.
Number 0504
CHAIRMAN KOTT asked Representative Croft whether he is aware of any
abuses in regards to record keeping.
REPRESENTATIVE CROFT replied keeping records is an abuse, but he is
not aware of them being used for any other purposes.
REPRESENTATIVE KOTT opened the meeting up to public testimony.
Number 0570
BRIAN JUDY, Alaska State Liaison, National Rifle Association of
America (NRA), Institute for Legislative Action, testified via
teleconference from California. He is speaking on behalf of the
NRA members in Alaska in strong support of HJR 9. In 1993, the NRA
worked closely with Congress in drafting the law that created the
national instant check system - the Brady Handgun Bill. The main
inference of the NRA was to ensure privacy for firearm owners, and
one of the provisions was to destroy the records. The Brady
Handgun Bill says that no governmental agency may require any
record to be recorded or transferred at a governmental facility and
that facility can't use a system to create a registration system or
transaction, except with respect to those prohibited from receiving
a firearm. The Brady Handgun Bill specifically says that all
records will be destroyed for law abiding citizens, except for the
transaction identification number and the date of transaction.
History has shown that firearm registration systems have led to
firearm confiscation mandates, and NRA members clearly understand
that the creating of a gun registration system is a major step
towards the destruction of the Second Amendment of the U.S.
Constitution. In addition, he agrees with Representative Croft
that any retention - 18 months, 6 months, 48 hours - is contrary to
the law for law abiding citizens. Furthermore, of the hundreds of
thousands that the Brady Handgun Bill has stopped from purchasing
firearms only about seven have been prosecuted. In conclusion, he
reiterated the law provides that information be maintained on the
bad guys and that zero information be maintained on the law abiding
citizens.
Number 0814
CHAIRMAN KOTT asked Mr. Judy whether he is aware of any abuses of
information currently being held.
MR. JUDY replied keeping records is an abuse of the law and
contrary to its intent, but he doesn't know whether they have been
used for any particular person.
Number 0848
REPRESENTATIVE ROKEBERG asked Mr. Judy how the Brady Handgun Bill
squares with local jurisdictions and requirements for handgun
registrations.
Number 0874
MR. JUDY replied it is a question that hasn't been resolved. He
cited the state of California maintains records of handgun
purchasers. He explained the federal law only restricts the
maintenance of records by the federal government. But, the extent
that California is acting as an agent of the federal government,
for example, is a question that hasn't been resolved. It is
feasible that the state may be prohibited from maintaining records
as well. A lot of gun owners would like to see that happen.
Number 1016
CARL ROSIER, Vice President, Alaska Outdoor Council (AOC); Board
Member, Territorial Sportsman Incorporated (TSI), testified in
Juneau. For many years these organizations have been strong
supporters of shooting sports as well as a citizen's right to
purchase, use and keep firearms in a responsible manner. It is a
pleasure to see the strong bipartisan support of HJR 9 reflected in
the sponsorship and cosponsorship. These organizations believe
that the Brady Handgun Bill clearly indicated that once the instant
check was completed there is no justification or rationale for
maintenance of records on a legally qualified buyer. These
organizations believe that it is a subversion of the law with
further potential to invade rights of law abiding citizens. Who
knows how the information will be used? Who knows who might have
access to those records? What prevents a 6-month retention of
records from being extended to 12 months? What law abiding citizen
wishes to have a Federal Bureau of Investigation (FBI) file for a
day let alone six months for simply purchasing a legal firearm?
The Brady Handgun Bill was quite clear in its intent and once again
federal agencies are attempting to go beyond the congressional
authority granted to them. Those efforts, if not corrected, do
nothing but undermine the trust of government by law abiding
citizens. These organizations strongly support HJR 9 and urge the
legislature to move it through the legislative process
expeditiously. He said, "Let's protect the provision of our Second
Amendment rights."
Number 1161
DEL SMITH, Deputy Commissioner, Department of Public Safety,
testified in Juneau. From 1994 to November 30, 1998, under the
original provisions of the Brady Handgun Bill, the state did not
retain any records of those legally authorized to purchase a
weapon. The records were immediately destroyed within a couple of
minutes. He cited during that time 57,500 checks were done by
state and local law enforcement agencies of which 1,532 were
denied. Nationally, there were 242,000 rejections out of 10.4
million requests to purchase a firearm.
Number 1249
CHAIRMAN KOTT asked Mr. Smith to explain the reasons why 1,532
would be denied a permit.
MR. SMITH replied primarily they would be prohibited or denied a
permit because of crimes committed, mental issues, or domestic
violence convictions, for example.
Number 1307
REPRESENTATIVE ROKEBERG asked Mr. Smith whether there are any
municipal registration requirements for firearms in the state.
MR. SMITH replied not that he knows of.
REPRESENTATIVE ROKEBERG asked Mr. Smith whether there is a
prohibition in statute prohibiting that.
MR. SMITH replied he can't quote one off the top of his head.
According to his understanding, the registration of firearms is
neither required nor allowed. In fact, under the concealed handgun
program, the state makes sure that no records are kept other than
what a person qualifies with and that information is not available
to anybody but the Department of Public Safety.
Number 1392
CHAIRMAN KOTT called for an at-ease at 1:32 p.m. and called the
meeting back to order at 1:34 p.m.
Number 1401
SCOTT T. CALDER testified via teleconference from Fairbanks. He
referred to page 2, line 4, "WHEREAS the actions of the FBI are
contrary to both the letter and the spirit of the Brady Handgun
Bill and further erode the constitutional right of Alaskans to keep
and bear arms;". He stated it is a real important concept and the
people need to hear about it more from the legislators. This type
of concern is the reason for the Second Amendment of the U.S.
Constitution. One of the reasons there are social problems
attributed to gun ownership, bad weather, bad parents and
everything else is because there is this type of intrusion into our
daily lives. He applauded the sponsor of the resolution and
encouraged any method to make it stronger or find a way to
participate without being threatened.
CHAIRMAN KOTT noted that any infringement upon a federal
constitutional right is alarming.
Number 1543
REPRESENTATIVE ROKEBERG asked Representative Croft why a copy of
the resolution is not being directed to the director of the FBI.
REPRESENTATIVE CROFT replied he should have thought of that. He
has no objection to including it.
Number 1564
REPRESENTATIVE ROKEBERG made a conceptual motion to include the
director of the FBI in the "COPIES" section of the resolution.
There being no objection, it was so moved.
Number 1600
CHAIR JAMES made a motion to move HJR 9, as amended, from the
committee with individual recommendations. There being no
objection, CSHJR 9(JUD) was so moved from the House Judiciary
Standing Committee.
CSSB 3(RLS) - CRIMES OF MURDER & CHILD MURDERS
CHAIRMAN KOTT announced the next order of business is, CSSB 3(RLS),
"An Act relating to the crimes of murder, solicitation to commit
murder in the first degree, conspiracy to commit murder in the
first degree, manslaughter, and criminally negligent homicide;
relating to homicides of children; relating to registration as a
sex offender or child kidnapper; relating to the crime of
interference with custody of a child or incompetent person; and
providing for an effective date."
CHAIRMAN KOTT called on Juli Lucky, staff to Senator Rick Halford,
sponsor of the bill.
Number 1638
JULI LUCKY, Researcher for Senator Rick Halford, Alaska State
Legislature, stated the bill should be familiar to the committee
members. It was heard last year as SB 218 and received seven due
passes. It is basically the same bill. Senator Halford would like
to send a clear message with this bill, that being "if you kill a
child you will go to jail for a long time." She cited the
Tellsworth case whereby a child was killed by a day care provider
and the mother of that child had to go through a long trial,
pleading and sentencing. She referred to a letter dated July 23,
1998 from the Department of Law to Senator Randy Phillips that
says, "Indeed, were it not for the powerful and moving testimony
and letters of Linda Tellsworth and her family and friends, we
might not have gotten the sentence that we did in the recent case
of the murder of Kyle Tellsworth." The judge in this case stated
during sentencing that the criminal would probably get five and
one-half years due to good time and suspended sentencing. That was
the reason for sponsoring this type of legislation. Under SB 3,
the criminal would have to spend substantially more time. Ms.
Lucky stated the bill does the following:
- adds a new form of first-degree murder when the death
of a child results from the commission or attempt of
kidnapping or of a sexual offense;
- expands the crime of felony murder to include sexual
abuse of a minor in the first and second degrees;
- adds a new form of second-degree murder when a death of
a child was caused with criminal negligence and the
offender has a previous conviction of certain crimes
against a child;
- elevates criminally negligent homicide from a class C
to a class B felony;
- establishes a twenty year mandatory minimum sentence
for a person convicted of a murder of a child under the
age of sixteen;
- increases the mandatory minimum sentence from five to
seven years for manslaughter, when the victim is a child
under the age of sixteen;
- establishes a new sentencing provision, which allows
for a term of un-suspended imprisonment that exceeds the
presumptive term, for certain felony offenses if the
victim is a child under the age of sixteen;
- expands the crime of custodial interference in the
first degree to include the act of keeping a child or
incompetent person outside of the state; and
- elevates solicitation of murder to an unclassified
felony.
Number 1756
REPRESENTATIVE MURKOWSKI stated last year the bill enjoyed
unanimous bipartisan support, and asked Ms. Lucky what the
differences are between last year's bill and this year's bill.
MS. LUCKY replied there are a few inclusions in this year's bill.
The first inclusion ups solicitation of first-degree murder to an
unclassified felony bringing it in-line with crimes of conspiracy
to commit first-degree murder. Another inclusion deals with sex
offender registration. Senator Halford believes that an attempt to
commit a crime of sexual abuse or assault of a minor should be
registered in the sex offender registry. There are also some
applicability sections that were added.
Number 1812
REPRESENTATIVE CROFT asked Ms. Lucky which sections in the bill
refer to sex offender registration.
MS. LUCKY replied Sections 11, 12, and 13 add offenses to the
definitions that are now in the sex offender registry statute. The
the definition of "aggravated sex offense", "sex offense" and
"child kidnapping" are being added, respectively. The bill adds
felony murder one and two to those definitions. The applicability
is in Section 15.
CHAIRMAN KOTT noted that the language "shall register" in on page
9, line 6.
Number 1864
REPRESENTATIVE ROKEBERG stated he does not see a fiscal note in the
bill packet. He is curious about the elevation of criminally
negligent homicide from a class C to a class B felony, and the
increase in the mandatory minimum sentence from five to seven years
for manslaughter. He asked Ms. Lucky whether the theory behind the
bill is to create a special crime for violence against a child.
MS. LUCKY replied the criminally negligent homicide provision would
affect the statute for everyone by upping it from a class C to a
class B felony. The manslaughter provision was discussed last year
and ups the sentence for crimes committed against children under
the age of 16. In other words, if a person is guilty of a crime of
manslaughter and those action harmed a child under the age of 16,
the sentence would be the higher of the two.
REPRESENTATIVE ROKEBERG stated he is troubled that the provision
for a criminally negligent homicide is across the board and not
specifically towards a child. He noted when the bill was passed
last year the state was in a different financial situation. He is
concerned about the fiscal impact.
CHAIRMAN KOTT noted that the committee has requested fiscal notes
from the Administration which have not been received yet. The
committee aide will provide a copy of the fiscal notes that were
transmitted with the bill.
Number 1800
SENATOR RICK HALFORD, Alaska State Legislature, noted that the
Department of Law requested the change in manslaughter. [THE REST
OF HIS TESTIMONY IS INAUDIBLE DUE TO PAPER SHUFFLING]
Number 2024
REPRESENTATIVE CROFT referred to Section 2(a)(3) and asked Ms.
Lucky whether a person would be registered as a sex offender if
that person commits a crime of kidnapping that is not of a sexual
nature. The language reads, "...the person commits or attempts to
commit a sexual offense or kidnapping against a child under 16
years of age...".
MS. LUCKY replied the term "child kidnapping" is already defined in
statute, and Section 12 of the bill would add the crimes dealing
with kidnapping to that definition.
REPRESENTATIVE CROFT stated that even though it is referred to as
a sex offender registry it really is a child kidnapper or sex
offender registry.
MS. LUCKY replied correct and noted Section 12 (C) is the part that
already exists in statute.
Number 2080
REPRESENTATIVE ROKEBERG stated he was not aware that kidnapping is
a part of the sex offender registry. He wondered if a parent
kidnaps that parent's own child would that parent be a part of the
sex offender registry.
Number 2096
REPRESENTATIVE CROFT stated he believes there is a distinction
between child abduction and kidnapping.
REPRESENTATIVE ROKEBERG wondered whether that was litigated under
Megan's Law in the supreme court.
REPRESENTATIVE KOTT opened the meeting up to public testimony.
Number 2132
DAVID HUDSON, First Sergeant, Division of Alaska State Troopers,
Department of Public Safety, testified via teleconference from
Anchorage. He noted that Section 3 of the bill needs to be more
specific to consider a prior qualifying conviction to demonstrate
a clear nexus to the crime at hand. For example, AS 11.41 includes
indecent exposure, and a defendant could argue that a prior
conviction of indecent exposure has little to do with that
defendant's current conduct and it should not be used to enhance
that defendant's criminal liability.
Number 2193
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage.
The bill makes a significant change in homicide laws. Homicide has
traditionally been divided into different degrees of seriousness
based on mental states. The bill changes that and makes a
classification based on the status of a victim as a child.
Traditionally, first-degree murder was premeditated or intentional.
Second-degree murder was lesser but still a very serious type of
mental state. Felony murder was when a person not participating in
the crime died in the commission of a serious felony. Manslaughter
was reckless types of conduct, not intentional types of conduct.
Criminal negligent homicide was death caused by criminal
negligence. He reiterated the bill would change a well-ordered
system. In addition, there are others who deserve the type of
protection under the bill such as the elderly, infirm or any other
vulnerable victim. An "aggravator" is already defined in statute
and used to enhance sentencing when a victim is vulnerable. In
addition, Section 4 would raise all criminally negligent homicides
to a class B felony, such as a death from a traffic accident. This
is quite a change in the law. The division has submitted an
indeterminate fiscal note because there would be more trials and
pleas, but the fiscal impact is indeterminable.
Number 2324
REPRESENTATIVE KERTTULA referred to Section 2, lines 12-20, and
wondered whether the direction is changing from a person's mental
state to criminal negligence.
MR. McCUNE replied it makes a fairly restrictive offense involving
torture or physical assault a first-degree murder by virtue of
criminal negligence. The conduct language directed toward the
child was placed in the bill last year at the request of the
Department of Law so that it is clear it would only involve cases
directed towards a child and not just that a child died in the
course of another incident.
Number 2424
MR. T. CALDER testified via teleconference from Fairbanks. He
stated he is fascinated with the remarks by Mr. McCune. The
legislature doesn't have any business tampering with the criminal
code. He knows that it can do it, but the history of crimes
against children committed under the collar of the law is a much
more serious problem. He has witnessed criminal activity under the
collar of the law against his own child and has not been able to
find a state official to address the problem in spite of laws that
already exist. "We're just completely missing the boat here now to
shuffle around the criminal code and try to tighten things up and,
you know, up the ante on some of this." There are already laws on
the books for this...
TAPE 99-9, SIDE B
Number 0001
MR. T. CALDER continued. The difficulties that citizens have when
their rights have been violated by governmental entities should be
the top legislative priority and really the only purpose for the
existence of the legislature. He can appreciate the position of
the law enforcement officer who spoke earlier and understands the
frustration of making a criminal a defendant in a legal action that
is not fairly judged in the interest of the people. That is a real
problem, but shuffling the words around in the bill and essentially
using children for this type of legal manipulation is dangerous.
He stated he would be happy to provide further information on the
criminal kidnap and torture of his own son by the Department of
Health and Social Services, Department of Law, Department of
Revenue and the court system. In conclusion, he stated if someone
really wants to shuffle the criminal code around, the crime of
genocide should be defined and lesser offenses. That person would
be providing a valuable public service.
CHAIRMAN KOTT noted there is something going on with the existing
system which is why the bill is being taken up.
Number 0098
ROBIN LOWN, Vice President, Alaska Peace Officers Association
(APOA), testified in Juneau. The APOA supports SB 3. The
association consists of 1,100 members from all law enforcement
agencies in the state.
Number 0128
CHAIRMAN KOTT asked Mr. Lown whether the APOA has discussed any
part of the bill in detail.
MR. LOWN replied the association has reviewed the bill in general.
It has not focused on any specific area. However, in response to
today's testimony, he agrees with First Sergeant Hudson's opinion
and Mr. McCune's opinion relating to intent.
Number 0174
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, testified in
Juneau. The division supports SB 3. It is substantially similar
to provisions in the Governor's Child Protection Bill (HB 375) that
passed last year. The additions made to the bill since last year
are logical and make sense. In reference to child kidnapping, the
legislature adopted a bill last year in response to federal
requirements to add it to the sex offender registry. It is now
called the "Sex Offender and Child Kidnapping Registry".
Number 0215
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what the Act was
called.
MS. CARPENETI replied it was called the Wetterling Act. In
addition, the reason for suggesting an increase in criminally
negligent homicide was because in statute homicides are either
murder in the first or second degree unclassified felonies.
Manslaughter is a class A felony, and criminally negligent homicide
is a class C felony. The gap is not appropriate, particularly when
car theft, failure to register as a child sex offender or kidnapper
in the first degree are class C felonies. It seemed that
criminally negligent homicide, causing the death of another person
through criminal negligence, is serious enough to be classified as
a class C felony. It also makes more sense in charging and
processing cases. When considering charges of manslaughter, a
class A felony, prosecutors think about resolving the case short of
a trial. Therefore, they would be more likely to resolve a case
with a charge of criminally negligent homicide if it was a class B
felony. It makes more sense. It would up some cases to a B felony
and many cases would come down from an A to a B felony. The effect
wouldn't be that great in terms of corrections and costs.
Number 0319
REPRESENTATIVE CROFT stated in reference to kidnapping one's own
child, AS 11.41.300 provides a defense if that person is a relative
and the victim is a child and the primary intent is to assume
custody. It criminalities it at a different level. It is still
criminal, but different than kidnapping. He asked Ms. Carpeneti
whether that would come under the sex abuse or kidnapping registry.
MS. CARPENETI replied no. It is treated as custodial interference
in the first degree - a class C felony.
Number 0350
REPRESENTATIVE CROFT referred to Section 3(5), and stated the bill
would punish criminally negligent homicide with the death of a
child and hook it to some of the fairly minor crimes in AS 11.41,
such as extortion and indecent exposure. He asked Ms. Carpeneti
for a good example of criminally negligent homicide.
MS. CARPENETI replied reckless driving and causing a death. AS
11.41 are crimes against a person and she agrees it is a broad
coverage and it is getting broader as offenses are added to it.
She suggested breaking down some of the more serious offenses. She
noted that assault in the fourth degree is the crime that most
domestic violence cases are resolved under. It can be very
serious.
Number 0443
CHAIRMAN KOTT referred to Section 2(2) and stated, according to his
understanding, it is a two-prong test.
MS. CARPENETI stated under the old common law intentional killings
were generally first-degree murders. In 1988, the legislature
passed AS 11.41.100(2), but it hasn't been used because it is
difficult to prove a pattern or torture. The purpose of the child
protection law is to elevate the safety of the children of the
state and make it more serious to cause their death. The changes
in the bill were suggested to make it easier to prove beyond a
reasonable doubt that a person causing serious physical injury
twice on the same child could be charged with first-degree murder.
Number 0508
REPRESENTATIVE CROFT noted that he sees how a pattern or practice
could be difficult to prosecute, and asked Ms. Carpeneti whether
changing the language from extreme indifference to criminally
negligent is substantial as well.
MS. CARPENETI replied it is two acts and the person must knowingly
engage in conduct directed towards a child. It is a big change,
but the working group felt that it justified persecution for
first-degree murder.
Number 0550
REPRESENTATIVE CROFT stated the language in Section 2, starting on
line 12, "...knowingly engages in conduct...", doesn't incorporate
a standard.
MS. CARPENETI noted the language reads, "...directed toward a
child...".
REPRESENTATIVE CROFT noted that the acts are separate, but the
language doesn't read, "knowingly engages in criminally negligent
conduct."
MS. CARPENETI replied the way the bill is drafted now the result of
the action must be criminal negligence.
Number 0598
REPRESENTATIVE ROKEBERG referred to Section 5, and asked Ms.
Carpeneti whether a person who knowingly takes a child out of the
state and that child is killed in a reckless manner, such as a car
accident, could that person be accused of second-degree murder in
the state of Alaska.
MS. CARPENETI replied no. There has to be two separate instances.
A conviction generally includes a person being charged, found
guilty, and sentenced. Thus, unless that person has been convicted
of a violation in the first degree it would not count under
second-degree murder.
Number 0677
REPRESENTATIVE CROFT asked whether a person could be charged with
second-degree murder if that person has been convicted of custodial
interference then under lawful custody drives recklessly with that
child.
MS. CARPENETI replied yes. She suggested going through AS 11.41
and deciding which person-crimes are serious enough to justify
this.
Number 0713
REPRESENTATIVE CROFT asked Ms. Carpeneti what is the punishment for
second-degree murder.
MS. CARPENETI replied a maximum of 99 years in jail.
Number 0720
REPRESENTATIVE ROKEBERG noted the bill ups second-degree murder
from a minimum of 5 years to a minimum of 20 years. It needs to be
looked at further. It might be an unintended consequence.
Number 0752
REPRESENTATIVE CROFT asked Ms. Carpeneti for more examples of
criminally negligent conduct that might cause a death. He wondered
whether drunk driving under certain conditions could be an example.
MS. CARPENETI replied generally drunk driving involving a death is
charged under manslaughter. Sometimes manslaughter is reduced to
criminally negligent homicide if a link cannot be proved to
manslaughter. There are other situations, not just vehicular
homicides, but she didn't feel comfortable giving further examples
before consulting with prosecutors.
Number 0827
REPRESENTATIVE ROKEBERG stated a drunken driving offense is
normally charged with manslaughter yet criminally negligent
homicide is below manslaughter. Therefore, drunk driving is a
higher level of criminally negligent homicide. He asked Ms.
Carpeneti whether a charge more than manslaughter would be included
in criminally negligent homicide.
MS. CARPENETI replied yes because it involves a degree of
negligence or recklessness. Recklessness is a higher degree...
REPRESENTATIVE ROKEBERG interjected and asked Ms. Carpeneti whether
there is an administrative term "greater included."
MS. CARPENETI replied no.
REPRESENTATIVE ROKEBERG stated he is not sure whether that is the
case here in the bill. He asked Ms. Carpeneti whether there is
anything that the committee should be aware of relating to this.
MS. CARPENETI replied the term "greater included" is not used, but
its concept is used because there are those that are lesser
included.
REPRESENTATIVE ROKEBERG said he doesn't want those instances that
are now typically charged as manslaughter to become de facto
second-degree murder because of the bill. He is not sure that is
the intent of the sponsor either.
MS. CARPENETI referred to Section 3(5) and noted the purpose is to
punish those more seriously who have caused the death of children
when in the past they have caused harm to children.
Number 0979
REPRESENTATIVE ROKEBERG said, "I thought you said earlier that if
we find there's been a custodial interference with taking out of
state and a separate instance occurs (indisc.) criminal negligence
involved or homicide under criminal negligence in combination that
there could be a charge of second-degree murder vice-a-vie
homicide, I mean, manslaughter."
MS. CARPENETI replied if a person has been convicted of custodial
interference and after a conviction has caused the death of a child
through criminal negligence then that person could be charged with
second-degree murder.
REPRESENTATIVE ROKEBERG wondered whether a driving while
intoxicated (DWI) homicide normally charged under manslaughter
could be shifted to second-degree murder. He is not sure whether
the legislature or the sponsor wants to do that.
Number 1051
REPRESENTATIVE KERTTULA asked Representative Rokeberg whether he
wants to leave it out.
REPRESENTATIVE ROKEBERG replied no. He stated in this case several
things are being combined to make a more severe penalty. He asked,
Do we want to make those types of things second-degree murder with
a 20 year presumptive minimum sentence? He said, "We ought to be
darn sure what we're putting together here warrants that high
minimum presumption." In other words, a conviction of vehicular
homicide then a conviction of taking one's child out of state on a
separate instance seems a little tough for 20 years.
CHAIRMAN KOTT called on Ms. Lucky to comment on any of the issues
discussed.
Number 1147
MS. LUCKY reiterated the intent of Senator Halford is to use a
higher penalty against those who have a past conviction of a crime
against a child and cause the death of a child. She believes
prosecutors will still have discretion in what they will charge
someone with.
Number 1180
REPRESENTATIVE ROKEBERG stated, if he was a noncustodial parent and
took his child to Hawaii for a week and got busted, he would hate
to think that he would turn into a second-degree murderer later on
because of a different fact pattern. He is not certain that is the
case, but he is very concerned about it.
CHAIRMAN KOTT noted that Representative Rokeberg is right on track.
Number 1210
MS. LUCKY offered to the committee members an index of the statutes
under AS 11.41 in terms of specifying particular crimes...
CHAIRMAN KOTT interjected and asked Ms. Lucky whether there has
been any discussion to separate those crimes.
MS. LUCKY replied it hasn't been a discussion until now, and she
has not talked with Senator Halford about it. She reiterated she
has a list of crimes under AS 11.41 if the committee wishes to
fine-tune certain things. There are a lot of crimes listed that
would merit a more detailed discussion than just a list of the
statutes.
CHAIRMAN KOTT asked Ms. Lucky to make that index available to the
committee members.
Number 1278
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what the presumptive
minimum and maximum sentences are for class B and C felonies.
MS. CARPENETI replied the maximum for a class B felony is (indisc.)
and the maximum for a class C felony is five years.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what are the minimums.
MS. CARPENETI replied class B and C felonies don't have presumptive
terms for the first conviction. A presumptive term for a class C
felony for a second conviction is two years. A presumptive term
for a class B felony for a second conviction is four years.
Number 1332
CHAIRMAN KOTT closed the meeting to public testimony.
CHAIRMAN KOTT referred the bill to a subcommittee. He appointed
Representative Rokeberg as chairman, and Representatives Green and
Kerttula to the subcommittee and charged it with looking at these
issues further in cooperation with the sponsor. The subcommittee
is to report back to the full committee at the earliest time
possible.
Number 1391
CHAIRMAN KOTT called for an at-ease at 2:30 p.m. and called the
meeting back to order at 2:36 p.m.
SSHB 5 - VOUCHER SYSTEM FOR EDUCATION
CHAIRMAN KOTT announced the next order of business is SSHB 5, "An
Act relating to vouchers for education; and providing for an
effective date."
CHAIRMAN KOTT explained that the bill was waived out of the House
Health, Education and Social Services Standing Committee, and that
committee has requested that it be returned, if it passes out of
the House Judiciary Standing Committee.
CHAIRMAN KOTT called on Randy Lorenz, staff to Representative Vic
Kohring, sponsor of the bill.
Number 1470
RANDY LORENZ, Researcher for Representative Vic Kohring, Alaska
State Legislature, explained Representative Kohring was here
earlier, but had to leave due to a conflict with a House Finance
Standing Committee meeting. He will discuss the constitutionality
of the bill today. The main stumbling block for this bill is the
Sheldon Jackson College v. State of Alaska decision. There are two
primary interests that render that decision moot in Alaska's
history. Firstly, Sheldon Jackson was a grant to a college as
compared to an elementary or secondary school. The Education Act
of 1965 throws out different directions to all states requiring the
appropriate education for all school children. Secondly, the
Sheldon Jackson decision looked at the student as a conduit for
funds to be directed to private institutions. He referred to
Black's Law Dictionary and cited the term "direct" is the
immediate, approximate, by the shortest course, without circuitry
operating by an immediate connection or relations instead of
operating through a medium. Therefore, the Sheldon Jackson
decision was misinterpreted by the state supreme court. He
referred to a report from the Department of Law dated February 22,
1999 and stated in both situations it only looks at the Sheldon
Jackson case and refuses to look at over 20 court cases since the
early 1970's that say that part of the constitution cannot be
enforced. He cited in Traverse City School District v. Attorney
General (1971) the Michigan Supreme Court ruled that prohibiting
public funds for private education was unconstitutional, void and
unenforceable because it prevented free exercise of religion
guaranteed by the U.S. Constitution, and violated the equal
protection of law provisions of the U.S. Constitution. He cited in
Warren v. Nusbaum (1972) the U.S. Supreme Court decided that state
constitutions were parallel to the First Amendment therefore any
First Amendment case should control the state's constitutional
interpretation. He cited in Campbell v. Manchester Board of School
Directors (1994) the court unanimously overturned a prior ruling
stating that judicial prudence has evolved greatly since 1961 in
directions unpredicted at the time. Therefore, the constitutional
issue must be examined a new in light of more recent teachings. He
cited in Kotterman v. Killian (1999) the court ruled that primary
beneficiaries of credits are tax payers who contribute to the
school tuition organizations. Parents who might otherwise be
deprived of an opportunity to make meaningful decisions about their
children's education and the children themselves... Private school
are at best only incidental beneficiaries by creating the program
the legislature hoped to encourage the development of an
educational setting that would invigorate learning, improve
academic achievement, and provide additional choices for parents
and children. The Blaine Amendment was a clear manifestation of
religious bigotry and party of a crusade of the contemporary
Protestant Establishment to counter what was perceived as a growing
Catholic menace. It would be hard to divorce the amendment's
language from the insidious, discriminatory intent that prompted
it. He has 18 more court cases that say the use of public funds
for a child's education in a private school is not a violation of
the constitution. The problem is there is no avenue to ask the
Alaska Supreme Court how it feels. The U.S. Supreme Court has made
it very clear in numerous cases that it is not a violation of the
constitution. Three years ago, the U.S. Supreme Court said that
the U.S. Department of Education can make sure that establishment
clause is protected and that there is a separation of church and
state through its normal procedures. He noted that Representative
Kohring would like the committee members to review the court cases
associated with this bill then send it back to the House Health,
Education and Social Services Standing Committee for the final
details, then bring it back to the House Judiciary Standing
Committee to ensure it meets the constitutionality of the state and
U.S. supreme courts. Representative Kohring would like for it to
go to the judges through its normal process.
REPRESENTATIVE KOTT opened the meeting up to public testimony.
Number 2020
ANNE KILKENNY testified via teleconference from the Mat-Su. She
noted the state doesn't have money to burn. Every dollar spent on
litigation is one less dollar available for education and other
more productive purposes. Please don't let the bill move from the
committee until it has been amendment to pass constitutional
muster.
Number 2084
JOHN CYR, President, National Education Association (NEA)-Alaska,
testified in Juneau. The position paper presented by NEA-Alaska
does not really speak to the constitutionality of public money for
private, religious and home schools, but it is clear that Article
VII, section 1 of the Alaska Constitution says, "No money shall be
paid from public funds for the direct benefit of any religious or
other private educational institution." It is a higher threshold
than almost any other state constitution. There is a direct
prohibition against this in the state constitution. He cited in
1996 the Montgomery County Common Pleas Court upheld the Cleveland
voucher system when there isn't a prescription against public funds
going towards a private education. The decision was later reversed
by the Court of Appeals of Ohio, 8th District. He further stated
similar voucher proposals have been held unconstitutional in
Vermont, Maine and Puerto Rico. In addition, most states have a
prohibition against state funds going to religious institutions.
The language seems clear on its face beyond the fact that
educationally it is not good policy. He stated it will cost
between $40 million to $50 million before one child comes out of a
public school and goes to a religious, private or home school.
There are somewhere between 10,000 to 12,000 kids in private or
home schools which equates to about $4,000 per kid which equates to
a lot of money. He asked the committee members to not move the
bill further. It is bad public policy and violates the state
constitution. It has also been found to violate almost every state
constitution around the U.S. In addition, according to polls, the
public is opposed to vouchers. No one wants their tax dollars
going to support religious or privates schools that they don't
agree with, especially because there is no control over private or
home schools. There are no standardization or exit tests, for
example. The bill calls for violating the state constitution and
giving money without any hope of knowing whether or not these kids
would meet the standards expected as a state.
Number 2469
REPRESENTATIVE ROKEBERG asked Mr. Cyr whether NEA-Alaska intends to
submit a legal opinion.
MR. CYR replied NEA-Alaska would be more than happy to research the
issue and get back to the committee...
TAPE 99-10, SIDE A
Number 0001
CHAIR JAMES stated it seems that the benefit of choosing where to
go to school is to the children and not to the institution.
MR. CYR replied under the bill the parents and children do not get
to choose. The school gets to choose. The school decides whether
a child is acceptable to go to a private school. The courts have
ruled that those schools can exclude students on the basis of
gender and achievement, for example. The courts have also ruled
that just because the money is being passed through a parent to a
school, the only place the parent can spend that money is in a
private, religious or home school situation. He called it a shell
game and noted that courts look dimly at that type of game.
Number 0110
CHAIR JAMES stated she is not defending the bill. It has problems,
but she is in favor of parental choice. She asked Mr. Cyr whether
he believes that the state has the obligation to pay for every
child's education in a district rather than those who just sign up
for public school.
Number 0146
MR. CYR replied he believes that the state has an obligation to
make available an affordable, free public education to every child.
In addition, there is an obligation to society. He said, "For
those kids for whom we are not doing a good job educating, we're
going to pay as a society later." The argument of parents paying
taxes and choosing not to send their children to a public school is
specious. It is a personal choice that can't be relegated. For
example, he doesn't own an airplane but some of his taxes go
towards keeping airports open. He thinks he should pay for that
because it makes Alaska a better place.
Number 0309
CECILIA PALIVODA testified via teleconference from Delta Junction.
She teaches her children at home using her own curriculum and
funds. The public school system provides an atheistic school
program and by exercising her right of freedom she does not accept
that and provides an education to her children herself. In doing
that she is denied funding. She purchases everything on her own.
She home schools six children at this time. The curriculum covers
everything from classical music to literature. Her children have
designed and built a barn at the age of 13 and 15. As an atheist,
she would be happy with the public school curriculum, but as a
Christian she is not. Why should she be denied funding to school
her children equally to others? she asked. Her children deserve an
education just as much as children in public schools. If the
public schools were nondenominational that would be one thing, but
an atheistic curriculum is another.
Number 0497
CHAIRMAN KOTT closed the meeting to public testimony.
CHAIRMAN KOTT explained that the committee is charged with the
responsibility of determining whether a voucher system is
constitutional in relation to the state and U.S. constitutions. He
announced he would get the list of court cases from the prime
sponsor's staff and determine whether or not they are relevant.
Most of the cases he mentioned earlier are from outside and might
be considered persuasive, but not binding based on the state
constitution.
Number 0559
REPRESENTATIVE ROKEBERG stated he is curious about the intent of
the bill and asked Mr. Lorenz who is the sponsor of HJR 6.
MR. LORENZ replied HJR 6 is sponsored by Representative Kohring
because the state constitution as it stands now allows for a
voucher system.
REPRESENTATIVE ROKEBERG stated he finds nothing in the bill packet
to corroborate that statement. The language seems to be relatively
clear. He is willing to review minutes from the state
constitutional convention and other legal opinions, but it seems
right now that it is the opinion of the sponsor versus Legislative
Legal Counsel and the Attorney General. In terms of a balance, he
wonders how much effort the House Judiciary Standing Committee
should put into this issue.
Number 0716
CHAIRMAN KOTT stated the House Judiciary Standing Committee will
give the matter a good working over. It is not the intent to delve
into the public policy side of it. At the next meeting, the
committee members will debate the bill's constitutionality. In
looking at the arguments from the Sheldon Jackson case, the bill is
patently unconstitutional. But, would an existing court use the
same arguments under the setting of the bill and marry them against
the state constitution dealing with public education? he asked.
That is the direction for the next meeting at which time it will
also be decided on whether or not to refer the bill back to the
House Health, Education and Social Services Standing Committee.
Number 0799
MR. LORENZ stated, in an effort to not waste any time, the best way
to approach this is to send the bill back to the House Health,
Education and Social Services Standing Committee for changes before
determining its constitutionality. A lemon test is set up to look
at how a program would be implemented to determine its
constitutionality. There are many changes than could be made to
the bill and those changes could render it unconstitutional.
Number 0869
CHAIRMAN KOTT replied the House Health, Education and Social
Services Standing Committee had an opportunity to make any changes
to the bill. The House Judiciary Standing Committee will work with
the existing bill. If it is send back to the House Health,
Education and Social Services Standing Committee, it will be
requested back. There is no guarantee there will be any changes.
If the House Judiciary Standing Committee determines that there are
constitutional problems, the bill will not leave the committee and
go back to the House Health, Education and Social Services Standing
Committee.
Number 0924
REPRESENTATIVE ROKEBERG stated he appreciates the willingness of
Chairman Kott to take up the issue. For the record, he wants to
announce that he is not opposed to vouchers per se. The people in
the state should have more choices. He asked that the committee
members be provided with the minutes of the state constitutional
convention related to the appropriate article, a copy of the
Sheldon Jackson decision, and that the sponsor gets a pro bono
legal opinion to argue his side of the case. Otherwise, it
requires the House Judiciary Standing Committee members to do all
of his work.
CHAIRMAN KOTT noted that the minutes from the state constitutional
convention are available regarding the section on public funding.
Number 0989
REPRESENTATIVE CROFT noted there was a significant amount of
discussion on whether to add direct or indirect public funding by
Delegate Coghill. He would be glad to provide a copy of those
minutes to the committee members. He also has a copy of the
Mathews v. Quinton (ph) case and the Sheldon Jackson case that he
would provide to the committee members. Those are the only two
court cases that he has found relating to Alaska.
CHAIRMAN KOTT indicated that the bill would be held over for
further consideration.
Number 1039
CHAIRMAN KOTT announced the next meeting will be on Wednesday,
March 10, 1999. It will be a joint meeting with the Senate
Judiciary Standing Committee to cover appointments.
ADJOURNMENT
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 3:07 p.m.
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