Legislature(1999 - 2000)
04/15/1999 01:24 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 15, 1999
1:24 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Lisa Murkowski
COMMITTEE CALENDAR
HOUSE BILL NO. 75
"An Act relating to murder; authorizing capital punishment,
classifying murder in the first degree as a capital felony, and
allowing the imposition of the death penalty when certain of those
murders are committed against children; establishing sentencing
procedures for capital felonies; and amending Rules 32, 32.1, and
32.3, Alaska Rules of Criminal Procedure, and Rules 204, 209, 210,
and 212, Alaska Rules of Appellate Procedure."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
HOUSE BILL NO. 67
"An Act relating to release of certain persons alleged to have
committed certain sexual offenses."
- MOVED CSHB 67(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 176
"An Act relating to attorney fees and costs and the granting of
public interest litigant status in proceedings related to
administrative actions and inactions; and amending Rules 79 and 82,
Alaska Rules of Civil Procedure, and Rule 508, Alaska Rules of
Appellate Procedure."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 30
Proposing amendments to the Constitution of the State of Alaska
repealing provisions relating to the constitutional budget reserve
fund and providing that the balance in the fund be deposited into
the budget reserve fund established by statute.
- HEARD AND HELD
* HOUSE JOINT RESOLUTION NO. 2
Proposing amendments to the Constitution of the State of Alaska
relating to a biennial state budget, to the appropriation limit,
and to appropriations from the budget reserve fund.
- BILL HEARING CANCELED
* HOUSE BILL NO. 56
"An Act relating to the crimes of murder, manslaughter, and
criminally negligent homicide of children and other victims."
- BILL HEARING CANCELED
(* First public hearing)
PREVIOUS ACTION
BILL: HB 75
SHORT TITLE: CAPITAL PUNISHMENT FOR CHILD MURDER
SPONSOR(S): REPRESENTATIVES(S) MASEK
Jrn-Date Jrn-Page Action
2/03/99 131 (H) READ THE FIRST TIME - REFERRAL(S)
2/03/99 132 (H) JUDICIARY, FINANCE
4/14/99 (H) JUD AT 1:00 PM CAPITOL 120
4/14/99 (H) HEARD AND HELD
4/15/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 67
SHORT TITLE: BAIL HEARING FOR SEX OFFENDERS
SPONSOR(S): REPRESENTATIVES(S) ROKEBERG, Dyson
Jrn-Date Jrn-Page Action
1/25/99 81 (H) READ THE FIRST TIME - REFERRAL(S)
1/25/99 81 (H) JUDICIARY, FINANCE
2/12/99 210 (H) COSPONSOR(S): DYSON
2/24/99 (H) JUD AT 1:00 PM CAPITOL 120
2/24/99 (H) HEARD AND HELD
2/24/99 (H) MINUTE(JUD)
3/03/99 (H) JUD AT 1:00 PM CAPITOL 120
3/03/99 (H) SCHEDULED BUT NOT HEARD
4/15/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 176
SHORT TITLE: PUBLIC INTEREST LITIGANTS
SPONSOR(S): REPRESENTATIVES(S) GREEN
Jrn-Date Jrn-Page Action
3/31/99 628 (H) READ THE FIRST TIME - REFERRAL(S)
3/31/99 628 (H) JUD, FIN
4/14/99 (H) JUD AT 1:00 PM CAPITOL 120
4/14/99 (H) SCHEDULED BUT NOT HEARD
4/15/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 30
SHORT TITLE: CONST. AM: REPEAL BUDGET RESERVE FUND
SPONSOR(S): REPRESENTATIVES(S) JAMES
Jrn-Date Jrn-Page Action
3/19/99 513 (H) READ THE FIRST TIME - REFERRAL(S)
3/19/99 513 (H) JUDICIARY, FINANCE
4/12/99 (H) JUD AT 1:00 PM CAPITOL 120
4/12/99 (H) SCHEDULED BUT NOT HEARD
WITNESS REGISTER
REPRESENTATIVE BEVERLY MASEK
Alaska State Legislature
Capitol Building, Room 432
Juneau, Alaska 99801
Telephone: (907) 465-2679
POSITION STATEMENT: As sponsor of HB 75, testified about intent.
CYNTHIA STROUT, Attorney at Law
510 L Street, Number 306
Anchorage, Alaska 99501
Telephone: (907) 276-0377
POSITION STATEMENT: Testified in opposition to HB 75, as attorney
and as president of Alaskans Against
the Death Penalty.
KEVIN McCOY
1113 N Street
Anchorage, Alaska 99501
Telephone: (907) 272-4972
POSITION STATEMENT: Testified in opposition to HB 75.
M.J. HADEN
P.O. Box 671122
Chugiak, Alaska 99567
Telephone: (907) 688-7530
POSITION STATEMENT: Testified on HB 75 in opposition to death
penalty.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
P.O. Box 201844
Anchorage, Alaska 99520
Telephone: (907) 258-0044
POSITION STATEMENT: Testified in opposition to HB 75.
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 HB 75; explained concerns.
BARBARA BRINK, 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 HB 75; discussed costs.
MARGO KNUTH, Assistant Attorney General
Office of the Commissioner - Juneau
Department of Corrections
240 Main Street, Suite 700
Juneau, Alaska 99801
Telephone: (907) 465-4338
POSITION STATEMENT: Testified on HB 75; explained Department of
Corrections fiscal note and spoke on own
behalf against the death penalty.
JANET SEITZ, Legislative Assistant
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 24
Juneau, Alaska 99801
Telephone: (907) 465-4968
POSITION STATEMENT: Explained changes in proposed CS for HB 67.
DOUG WOOLIVER, Administrative Attorney
Office of the Administrative Director
Alaska Court System
820 West 4th Avenue
Anchorage, Alaska 99501-2005
Telephone: (907) 264-8265
POSITION STATEMENT: Commented on changes to HB 67.
JEFFREY LOGAN, Legislative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 214
Juneau, Alaska 99801
Telephone: (907) 465-3727
POSITION STATEMENT: Presented HB 176 on behalf of sponsor.
WILLIAM GREENE, Deputy Municipal Attorney
Municipality of Anchorage
P.O. Box 196650
Anchorage, Alaska 99519
Telephone: (907) 343-4545
POSITION STATEMENT: Testified that HB 176 is a step in the right
direction; suggested that municipality be
included under the bill.
STEVE WILLIAMS, Attorney at Law
500 L Street, Suite 400
Anchorage, Alaska 99501
Telephone: (907) 276-6922
POSITION STATEMENT: Testified in opposition to HB 176.
KEVIN JARDELL, Legislative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 214
Juneau, Alaska 99801
Telephone: (907) 465-6791
POSITION STATEMENT: Testified on behalf of sponsor of HB 176.
LAUREE HUGONIN, Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward Street, Room 501
Juneau, Alaska 99801
Telephone: (907) 586-3650
POSITION STATEMENT: Testified on HB 176; suggested changes.
BARBARA COTTING, Legislative Assistant
to Representative Jeannette James
Alaska State Legislature
Capitol Building, Room 102
Juneau, Alaska 99801
Telephone: (907) 465-6822
POSITION STATEMENT: Gave opening statement on HJR 30 on behalf of
sponsor.
ACTION NARRATIVE
TAPE 99-32, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:24 p.m. Members present at the call to order
were Representatives Kott, Green, Croft and Kerttula.
Representatives Rokeberg and James arrived at 1:25 p.m. and 1:26
p.m., respectively.
HB 75 - CAPITAL PUNISHMENT FOR CHILD MURDER
CHAIRMAN KOTT announced that the committee would continue its
hearing on House Bill No. 75, "An Act relating to murder;
authorizing capital punishment, classifying murder in the first
degree as a capital felony, and allowing the imposition of the
death penalty when certain of those murders are committed against
children; establishing sentencing procedures for capital felonies;
and amending Rules 32, 32.1, and 32.3, Alaska Rules of Criminal
Procedure, and Rules 204, 209, 210, and 212, Alaska Rules of
Appellate Procedure." Chairman Kott asked whether the sponsor had
additional comments.
Number 0080
REPRESENTATIVE BEVERLY MASEK, Alaska State Legislature, sponsor,
thanked the chairman but indicated she would rather hear the public
testimony.
Number 0135
CYNTHIA STROUT, Attorney at Law, testified via teleconference from
Anchorage. A criminal defense attorney since 1982 and president of
Alaskans Against the Death Penalty, Ms. Strout said she would focus
on two areas. First, current laws sufficiently protect the public.
She is aware of no case being overturned in our court system where
people have received sentences of 99 years. She believes the
courts are well able to provide sentences for people who commit
homicides under these conditions that will ensure that they are not
released back into their communities. Second, somewhat contrary to
the intent, under this bill the state could execute people 16 years
old or younger, including a 15-year-old who killed a 12-year-old
while playing Russian roulette, for example, or a 7-year-old who
killed his 4-year-old brother, as in a recent case. Ms. Strout
noted that the previous week's newspaper discussed recent studies
showing that prison populations are full of people who were abused
as children. Ms. Strout asked whether it wouldn't be better to put
the necessary funds to enact this bill into preventing child abuse,
thereby stopping that cycle of violence.
Number 0407
CHAIRMAN KOTT commented that when he had posed the question the
previous day, he was inquiring whether anyone was aware of someone
in Alaska sent to prison for life, then later cleared because of
finding out that person wasn't the perpetrator of the crime.
MS. STROUT referred to an article that she believes the committee
has, in which studies indicate that when Alaska had the death
penalty, in territorial days, there were serious factual questions
about the guilt of two people who were executed. She believes that
other states' history should be a guide; in Illinois, 11 people
have been released from death row, for example, based on "factual
innocence." Alaska, with no death penalty, has nothing to
correlate with that. However, it should give people pause.
Number 0528
KEVIN McCOY testified via teleconference from Anchorage in
opposition to HB 75. An Alaska resident since 1976, he is married
and has raised two children, his most precious connection to this
world and this state, he told members. The best teachers have been
those who teach by example, Mr. McCoy pointed out. He is most
troubled by this proposal because of the example that it sets,
trying to teach people, by killing, that killing is wrong.
Although he would be devastated if something happened to his
children, this bill would not remedy that. He recalled testimony
by Marietta Yeager (ph) a few years ago against a death penalty
bill; her daughter had been taken from a campground and killed, and
her comments had really made Mr. McCoy think about the issue. He
cannot endorse the death penalty, he told members, because it
wouldn't bring the child back. Furthermore, he wouldn't want a
memorial for his child to be the death of another person. Mr.
McCoy endorsed all the comments made the previous day and urged
members to vote against this bill. It would cost too much, it
wouldn't work, and it seems there are more serious budgetary
concerns, which would have more of a direct, positive impact on
Alaskans, he concluded.
Number 0691
M.J. HADEN testified via teleconference from Anchorage in
opposition to the death penalty. A paralegal with the federal
public defenders office, she moved to Alaska last year from
Georgia, where she had also worked for the federal public defenders
office. She noted that her testimony is along the lines of Mr.
Curtner's testimony regarding his first-hand experiences with the
death penalty in Ohio, heard the previous day. However, her own
experience, both at the trial level and at the post-conviction
stage, was in Georgia, which, unlike Ohio, does execute defendants
sentenced to death. Since 1976, when the death penalty was
reinstated there, the state has executed 23 people. In the past 20
years, three individuals sentenced to the electric chair were
proven innocent. Currently, 123 people are on Georgia's death row.
MS. HADEN told members that she has witnessed so many pitfalls in
the implementation of the death penalty in Georgia that it would be
difficult to share them all. These include defendants represented
by lawyers with no criminal law experience; trials where the
appointed attorney only met with the defendant a couple of days
before trial was to begin; cases where vital exculpatory evidence
was discovered to have been withheld from defense counsel; and
cases where witnesses, including law enforcement officers, were
found to have lied. Furthermore, because the decision of whether
to seek the death penalty is exclusively that of the district
attorney in Georgia, she has seen the death penalty used as a
political ploy in election years. She said she can't begin to
recount the disparity and discrimination surrounding Georgia's use
of the death penalty.
MS. HADEN shared two memorable moments in her career. One was her
first visit to Georgia's death row. She had been studying her case
file, reading the transcripts and reviewing the graphic evidence,
and she didn't know what to expect from this person. When he came
in, he was not a monster or a devil, she discovered, but a human
being who laughed, cried, and got angry like anyone else. The
second memory was from the end of a trial, awaiting sentencing for
a client who had been found guilty. Waiting in a room with his
mother and brother to see how the 12 jurors had voted, she could
see the pain on their faces, and the love they still had for their
family member, despite what he might have done. "We're talking
about putting to death sons and daughters, sisters and brothers,
mothers and fathers," Ms. Haden concluded. "We're talking about
our government killing human beings, and that is wrong."
Number 0992
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union
(AKCLU), testified via teleconference from Anchorage in opposition
to HB 75, noting that the AKCLU is a nonprofit, nonpartisan
organization with statewide membership, an affiliate of the
American Civil Liberties Union (ACLU) whose mission is to preserve
and defend the guarantees of individual liberties found in the Bill
of Rights and in the Alaska constitution.
MS. RUDINGER told the committee that while there is no good reason
for the passage of HB 75, there are many reasons for its defeat,
including constitutional and economic factors; the racially
discriminatory fashion in which the death penalty is allocated; and
the fact that people have been sent to death row only to later be
proven innocent. She believes that most people would say the
government is inefficient and has too much power already. However,
adoption of the death penalty would give the state the ultimate
power of deciding who lives and who dies.
MS. RUDINGER emphasized the proven racial disparities in the
charging, sentencing and imposition of the death penalty. In 1990,
the U.S. General Accounting Office reported to Congress that in
this nation's trial courts, the killing of a White person is
treated much more severely than the killing of a person of color.
For example, 80 percent of the victims of the 313 people executed
between January 1977 and the end of 1995 were White.
MS. RUDINGER next addressed erroneous convictions resulting in
death sentences, which she said have occurred in virtually every
jurisdiction in the nation. Advances in scientific technology,
such as DNA testing, have exonerated people on death row, and
crucial testimony has sometimes later been proven false. Ms.
Rudinger cited two examples. The first was a Florida couple
convicted of a murder; although the husband was executed, the
wife's conviction was vacated when it was proven that the crucial
evidence against them had consisted mainly of the perjured
testimony of an ex-convict who had turned state's witness to avoid
a death sentence himself. In the second example, reported in the
Anchorage Daily News in February, a man on death row in Illinois
was exonerated due to the efforts of students at Northwestern
University. Ms. Rudinger concluded, "All governments do make
mistakes. Please, do not give our state government the power to
make a mistake by executing an innocent person."
Number 1259
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage. He
said he is personally opposed to the death penalty but would
address the nuts and bolts of HB 75; in addition, he would try to
provide written comments about the problems he sees with the bill.
MR. McCUNE pointed out that because this bill does not call for an
advisory vote, death penalty prosecutions could begin immediately
after it became effective. In addition, when he first saw the
bill's title, he expected a statute making an intentional killing
of a child an offense. However, on page 3, lines 20 and 21, for
example, it makes all first-degree murders capital offenses. This
bill greatly expands the power of Alaska statutes to have death
penalties for other first-degree murders, in addition to the murder
of a child, to be punished by death.
MR. McCUNE urged members to consider that in recent years the
legislature has been asked to expand murder in the first degree, to
include situations where someone knowingly engages in conduct that
is not necessarily intentional. Furthermore, accomplices who do
not cause the death of a person can be found guilty of murder in
the first degree.
MR. McCUNE noted that the bill sets up a sentencing procedure. He
called attention to page 8, lines 21 through 23, then explained
that if somebody is convicted of any first-degree murder, HB 75
would require that person to go to the sentencing phase for a death
penalty, even though the victim of the offense was not a child.
Mr. McCune said that is a very odd provision that doesn't seem to
fit within the intent of the bill, and he believes that the
committee ought to take a close look at it.
MR. McCUNE discussed the aggravating factors, referring to pages 9,
beginning at line 31, and continuing to page 10, line 8. Noting
that this section finally mentions children as victims, he
expressed concern that instead of listing the aggravating factors
numerically, and saying that the jury must find one of the listed
aggravating factors, the bill says a penalty may be imposed if
aggravating factors are found. He believes that the intention of
the bill is that all the aggravating factors have to be met before
a death penalty could be imposed. However, it could be interpreted
that if any of the aggravating factors is found, the death penalty
could be imposed.
MR. McCUNE next expressed concern that only four mitigating factors
are listed. In every other type of criminal case, there is a much
longer list of mitigating factors that the judge can take into
account in deciding what sentence to impose. These mitigating
factors are found in AS 12.55.151(d). Among them is the defender
who was an accomplice in the case, but played a minor role; an aged
defendant who acted under a mental infirmity; the existence of
serious provocation from the victim of the offense; and, most
important - which Mr. McCune believes absolutely should be included
as a mitigating factor that the jury, in this case, could take into
account - is whether the offense was among the least serious of the
offenses set out in the statute. However, a jury would be
powerless to take that into account, because it is not included in
the mitigating factors that are in this bill.
MR. McCUNE drew member's attention to page 8, line 28. He
explained that he is concerned about the provision that says that
evidence [as to any aggravating or mitigating factor] can be
admitted "regardless of the admissibility of the evidence under the
rules of evidence." He said he understands that in a sentencing
proceeding hearsay can be allowed if a person has an adequate
change to rebut it. However, he believes that this provision goes
much beyond that, as it would allow evidence that was illegally
seized to be used in the penalty phase in a death penalty case.
MR. McCUNE advised members that the final concern regards merit
appeals. On page 10, lines 20 through 31, it says that the
sentence review procedure is set up in the Alaska Supreme Court.
He pointed out that sentence review is distinguished from issues
like whether the trial judge made errors in admitting evidence,
whether illegally seized evidence was admitted, or whether a
confession without the benefit of Miranda rights was admitted
against the defendant. These are types of merit appeal issues that
the Alaska Court of Appeals currently handles. In this bill, it
isn't clear which court - the Alaska Court of Appeals or the Alaska
Supreme Court - would review the merit issues.
Number 1683
REPRESENTATIVE KERTTULA responded that the section on page 8, line
28, about admitting testimony regardless of the admissibility of
the evidence, had bothered her, as well. She asked whether Mr.
McCune knows what happens in sentencing phases in other states on
that issue.
MR. McCUNE replied that although he hasn't studied other state law
cases, he has seen federal cases where, for example, the United
States Supreme Court has overturned death sentences because of
admissibility problems in the evidence. He said he believes there
is a U.S. Supreme Court case in which the jury heard prejudicial
types of statements that had swayed them. With this provision,
he'd be afraid that the trial judge would think that he or she
didn't have the power to apply Evidence Rule 403 and find that if
the probative value of the evidence was not outweighed by the
prejudicial effect, the judge would be powerless to remove that
evidence from the consideration of the jury.
Number 1755
REPRESENTATIVE CROFT referred to page 8, line 22, which says that
if, after a trial by jury, a defendant is convicted of a capital
offense, the court shall conduct a separate proceeding. He asked
whether the state would run all first-degree murders through this,
even if there wasn't an allegation that there was a child involved.
MR. McCUNE replied that it is the way the bill is currently
written, which is odd to him, because the title leads him to
believe it would involve just murders of a child. As written,
first-degree murder is a capital felony, and for a capital felony,
there must be a separate sentencing proceeding before a jury.
Number 1821
BARBARA BRINK, Director, Public Defender Agency, Department of
Administration, testified via teleconference from Anchorage about
the costs. She said she believes that the fiscal note is
self-explanatory. The figures that seem high are because of the
unique requirement of "capital litigation." Capital punishment in
Alaska, as in every other state, will be more expensive than
convicting and sentencing people to life imprisonment without the
possibility of parole, she explained. These costs are not what is
commonly believed to be the result of some frivolous and lengthy
appeal process, but, rather, the result of the constitutional
uniqueness of the death penalty cases, and the safeguards that have
been set up by the United States Supreme Court. Ms. Brink expanded
on that:
Basically, those safeguards require that every jury be given
very clear guidelines on sentencing, in exclusive provisions
defining what are aggravating and mitigating circumstances.
A defendant is constitutionally entitled to have two jury
trials. The first jury trial is to establish their guilt or
innocence, and then, if the person is convicted, they are
entitled to a second jury trial to determine whether or not
they should receive the death penalty.
Constitutionally, every defendant is granted automatic
oversight protection by the state supreme court, and all of
these constitutional safeguards translate into what has been
described as "super due process." The result of that
heightened scrutiny - because we're so concerned about who
gets convicted, and we don't want any bad convictions - is
that there is a much more extensive jury selection procedure
at any capital trial.
There is a fourfold increase in the numbers of motions that
are filed in capital cases than in normal murder cases without
possibility of the death sentence. As I've pointed out,
there's a longer, dual sentencing process. That translates
into more investigation needed, more expert testimony needed,
and more lawyers who specialize solely in death penalty
litigation. That, combined with the automatic mandatory
appeals, has resulted in some dramatic costs.
We don't have to operate in a vacuum, and this isn't just my
speculation about what it's going to cost. ... There've been
a myriad of studies conducted across the Lower 48 in those
states that do have the death penalty, and every one of those
studies concludes that it is much more costly to have a death
penalty than not to have one. The most comprehensive study
that's been conducted so far was done by Duke University in
May of 1993, and it simply studied North Carolina. In North
Carolina, they found that the death penalty cost $2.16 million
dollars, per execution, over the cost of a non-death-penalty
murder case. They also determined that the bulk of that cost
did occur at the trial level, not the appellate level.
A study in California found that in California the state spent
$90 million annually over and above the ordinary costs of
noncapital litigation to have a death penalty. They also
found that $78 out of that $90 million was incurred at the
trial level. Florida did a study in 1988 where they found
that they've spent $57 billion dollars on the death penalty
between 1973 and 1988, and yet only achieved 18 executions.
Therefore, it cost them about $3.2 million to try and convict
and execute a single person.
In Texas, a study was done in 1992, and there they found that
the average death penalty case cost the taxpayer $2.3 million,
which was three times the cost of imprisoning someone in a
single cell, at the highest level of security, for 40 years.
I'd also wanted to point out that even though Florida spent
$3.2 million per execution, they've (indisc.) a budget crisis
two years ago, similar to what we're looking at; the
department of correction's budget was cut mid-year, and that
resulted in the early release of 3,000 prisoners from the
department of corrections. In Texas, the costs are saved by
giving Texas prisoners so much "good time" that the average
Texas prisoner only serves 20 percent of their imposed
sentence; and it should also probably mean, though, ... that
even though Texas has a death penalty - has had one for years,
and has executed the most number of people in the United
States - its murder rate is among the highest in the entire
country.
There's some more current data, too, because other states have
decided that this is becoming a very costly proposition to
them. In 1998, a new report from the Nebraska judiciary
committee concluded that any savings that they had from
executing an inmate were far outweighed by the financial legal
costs; and the conclusion of that report was a recommendation,
or a belief, that the current death penalty was not in the
best interests of Nebraskans.
The federal government has also studied the cost of the death
penalty. There was a report from the judicial conference on
the United States; that report concluded that defense costs
were four times higher in any case where the death penalty was
brought than ... when death was not sought. It also concluded
that prosecution costs were 60 percent higher than the defense
costs, even without adding in all the money provided by law
enforcement agents doing investigations.
A recent study in Louisiana - and that study was done in 1998
- convinced the prosecutor that life in prison would be a
better solution than the death penalty. He said it's a matter
of simple economics: It just costs too much to execute
somebody. You might remember that a couple of years ago New
York was considering whether or not to impose a death penalty;
they have recently done so. But in the studies that they did,
to decide whether or not to implement the death penalty, they
concluded it was going to cost them $118 million a year. The
first death row inmate in New York, a gentleman by the name of
Dale Harris (ph), the entire, total costs of his case are
going to be $3 million; and a recent columnist decided that
after spending $3 million for a capital case, they really had
bought themselves nothing that they couldn't have gotten with
a sentence of life without parole. ...
Washington State is also looking at the cost of their death
penalty. They had determined, according to a 1999 study, that
a single death penalty trial approaches $1 million. The
county - who down in Washington is responsible for providing
those fees - had to let one government position go unfilled;
they've eliminated (indisc.); they've drained a $300,000
contingency fund; they eliminated all capital improvements;
and a sheriff's request to replace a van ... for prisoners,
which has broken down, has been canceled. So, in those
states, the smaller jurisdictions have to pay for it, and are
having a very ... hard time of doing it.
The state of Ohio also did a recent study; this is also from
1999. They spent $1.5 million to kill one person; he actually
was mentally ill and asked to be executed, and didn't even
want any appeals. So, they're finding it to be a pretty high
cost, as well.
Number 2164
REPRESENTATIVE CROFT referred to page 2 of the fiscal note, where
it states the assumption that this would only be done where the
victim was under the age of 18. He agreed with Mr. McCune that as
the bill reads, on page 3, murder in the first degree is a capital
felony, punishable under AS 12.55.125, which lists these "sort of
aggravated first-degree" offenses, including killing a police
officer, having done it before, or clear and convincing evidence of
torture. He asked Ms. Brink how she would change the fiscal note
if they take the bill at its word and include every aggravated
offense, every "mandatory 99" trial, that will be held in Alaska.
MS. BRINK explained that the fiscal note assumption was that the
bill didn't mean what it says and would be corrected in drafting.
As to Representative Croft's question, the calculation would be
difficult to do off the top of her head. For every defendant who
currently gets sentenced to the 99 years, they would do an
additional jury trial, which she doesn't believe would be more than
a couple of cases per year. It would cost her staff additional
investigation, witness testimony and, mostly, time, as a jury trial
is much more time-consuming than is a hearing before a judge. It
is not the same as figuring the cost of capital litigation, she
pointed out.
Number 2289
REPRESENTATIVE CROFT said that Ms. Brink had made assumptions to
bring the fiscal note down, to make it a conservative number. He
asked whether Ms. Brink had used the studies she had cited to make
the fiscal note.
MS. BRINK affirmed that. She had also consulted with Rich Curtner,
the chief federal defender for Alaska, who had testified the
previous day, she said, although he had not identified himself as
such. Because Mr. Curtner is one of the few people in Alaska with
capital litigation experience, she had relied on figures and
information that he had at his disposal.
MS. BRINK reported that she also had looked at the American Bar
Association standards; they have published exclusive guidelines for
the appointment and performance of counsel in death penalty cases.
They require, specifically, that in any case where the death
penalty is sought, two qualified trial attorneys must be assigned
to represent the defendant.
Number 2337
REPRESENTATIVE CROFT remarked that he just wanted to get on the
record that this is, if anything, a conservative fiscal note. He
then stated his understanding that as the bill is drafted, it is a
"sort of superfluous jury trial" if the victim is known to be over
the age of 18. However, it says that "the following aggravating
factors may be considered"; if construed to mean that other
aggravating factors could be considered, then this is no longer a
superfluous trial. He asked whether, under that reading, all of
these "not mandatory 99s" would become death penalty cases.
MS. BRINK agreed it could be read that way, although she believes
they would try to read it in a much more narrow sense. She pointed
out that in addition to the facts of whether the child who died was
under 18, the jury has to decide what punishment is appropriate;
the purpose of the sentencing jury trial is to introduce a whole
variety of evidence concerning the defendant's entire life, so that
the jury can decide that. "So, I don't think a jury trial would
ever be superfluous if the state was asking for capital punishment,
because there would be many more issues happening at the jury
trial, not just proof of the mitigators or aggravators," she
concluded.
Number 2406
REPRESENTATIVE CROFT said that is an interesting point, although he
doesn't know that he understands it. He asked, "If we knew for a
fact that the victim was a 55-year-old, ... what does this empower
that jury trial to determine, other than whether it's capital or
not?"
MS. BRINK said that is the part that doesn't make, the way the bill
is drafted. She explained, "In a capital trial, they usually
draft the statute so that the jury's decision is 'life' or 'death.'
So, they'd have to make that decision, in addition to deciding
whether or not there's enough proof to prove all those aggravators
or mitigators. In this case, if every capital murder - which is
defined as first-degree murder for a jury trial - conceivably, I
suppose, if you gave the statute its most broad interpretation, you
could have the jury deciding what (indisc.) this defendant could be
facing, which is very odd. It would not usually happen under the
Alaska Statutes, where sentencing is purely the province of the
judge." She offered to provide written facts and figures relating
to her earlier testimony.
TAPE 99-32, SIDE B
Number 0001
MS. BRINK mentioned that Los Angeles County spends $3 million per
execution. She expressed concern that the exorbitant cost of
capital punishment is apt to make Alaska less safe, because badly
needed financial and legal resources will be diverted from more
effective crime-fighting strategies. For example, the greatly
increased number of police officers on the street is responsible
for the reduced crime rate, she said, both nationwide and in
Alaska. In states with the death penalty, however, police are
being laid off, prisoners are getting released early, and the court
systems are clogged. Ms. Brink told members, "Let's not turn
Alaska into another state where millions of dollars are poured into
the death penalty machine, with no resulting increase in public
safety."
CHAIRMAN KOTT thanked Ms. Brink and asked that she forward the
studies and statistics to the committee.
Number 0106
MARGO KNUTH, Assistant Attorney General, Office of the Commissioner
- Juneau, Department of Corrections (DOC), came forward, specifying
that she was speaking only for the DOC, not the Department of Law.
She told members that the DOC's fiscal note for HB 75 indicates the
department would need $2.185 million the first year for a capital
expenditure, to build a separate, ten-bed death row facility.
MS. KNUTH explained that other states' experience is that death row
inmates are a distinct population within a prison. They have
nothing to lose. They present a special danger to other inmates
and to correctional officers, with a special risk for escape
attempts. It is not possible to keep death row inmates in the
general prison population. The special facility that would need to
be built would appropriately be at Spring Creek Correctional
Center, the state's current maximum-security facility. Additional
operating expenses for manning this facility are also reflected in
the fiscal note.
MS. KNUTH said the DOC's budget has been cut by the House, by $3
million, this year. [She later corrected this, clarifying that
they had received $3 million less than they need.] She told
members, "One of the things that we do, in trying to evaluate how
to function with a decreased budget, is the first thing to go are
new initiatives; things that we have not started yet are not taken
on. And that makes sense, that when you're trying to evaluate what
to do with finite resources, you have to honor your ongoing
commitments in the first place. And it seems inappropriate to the
Department of Corrections that when we're going to be short maybe
$3 million, for dealing with overcrowding and for trying to deal
with the existing population that we have, that we would incur a $2
million obligation to do something that we have not done in the
state, since statehood. ... The timing is unfortunate."
MS. KNUTH advised members that in ten years of testifying before
this committee, not once had she expressed a personal opinion on a
bill. However, the subject of the death penalty is one that people
obviously have strong feelings about. Noting that as a former
prosecutor she has seen "horrible human beings," she recounted how
Tony Garcia (ph) in Juneau committed one of the most heinous
offenses; he drove out in the Valley, randomly picked a household,
knocked on the door, and stabbed to death the person who answered
the door, with no provocation or justification. She stated, "A
despicable human being. Nonetheless, I've got to tell you, if it's
wrong to kill, it's wrong to kill. And all we do is reduce
ourselves to the level of these offenders, if we take on this
prerogative of saying, 'I'm going to make a value judgment on your
life, and I'm going to decide that it is appropriate, somehow, for
you to be killed. ... It's not a level that state government should
stoop to. It would bring us down to their level, and I know we can
do other things with these offenders. Tony Garcia is never going
to go anywhere, except maybe to Colorado, where he's wanted on
multiple murder convictions, as well."
Number 0305
CHAIRMAN KOTT asked whether the Garcias of the world, who aren't
going anywhere, pose more of a threat, to society and the security
of those charged with looking after them, than those on death row.
He suggested that they have nothing to lose, either.
MS. KNUTH replied, "There actually is something substantively
different about facing death, the death penalty. We do have a
number of inmates in Alaska who are serving 99-, 300-, 400-year
sentences. And, in fact, I'll guarantee you that they were
involved in the manufacture of the desks that you are sitting at
now. Most of our correctional industries workers are convicted
murderers who have these extremely long sentences. And I've been
through Spring Creek. I've been to the program there. I've met
them. And they're good workers. ... They're in there for the long
haul, and they're proud ... to have a useful activity. And so,
you've got different types of people. Tony Garcia is not the type
of person I'm describing. I mean, he really is a loathsome human
being. But there is a group of murderers out there who are in
their 50s, and even older now, who are making a contribution
somehow. And so, as is always true, there's a continuum of people
out there, and there'll be some who are like Tony Garcia, but
that's the exception."
Number 0393
CHAIRMAN KOTT referred to the DOC's fiscal note, which anticipates
construction of a ten-bed facility to house these death row
inmates. He asked whether the average appeals time for those on
death row is ten years, and whether some of those could extend
beyond ten years. He noted that if there were more than one
capital case per year, there could be a need for additional beds.
MS. KNUTH replied, "You're quite right, and especially if we're to
consider that Alaska's population is predicted to continue
increasing. If we have just one capital case a year now, sooner or
later our population is going to double, and that, in itself, will
increase numbers." She indicated the fiscal note assumes some
degree of stability in the state.
CHAIRMAN KOTT asked, "Can you anticipate what we would do, in the
event that we had more on death row than we had the ability to
accommodate? Ship them out to Arizona?"
MS. KNUTH replied, "By the way, Mr. Chairman, Arizona won't take
our worst boys. We have to keep them. Private prisons don't want
the Tony Garcias. They will not take them. And that's something
we need to keep in the back of our minds when we're using private
prisons. They do not want your maximum-security inmates. They
want 'mediums.' ... We would have to ... expand it somehow, and a
facility like this would have to be built so that it could be
expanded."
Number 0476
REPRESENTATIVE CROFT pointed out that the Public Defender Agency
had estimated two to three capital cases per year, whereas in
constructing the ten-bed facility, the DOC estimated one bed per
year for the fiscal note.
MS. KNUTH affirmed that, explaining that there is a significant
difference between the number of cases tried and the number of
convictions anticipated.
REPRESENTATIVE CROFT asked whether, if Alaska had had a death
penalty, Tony Garcia would have known that and therefore been
deterred.
MS. KNUTH responded, "As Mr. Campbell so eloquently testified
yesterday, the more depraved the person, the less likely there is
any rational process going on. And deterrence assumes a rational
thought process. Deterrence works wonderfully for me. I am
personally never going to do something that places me in [the]
prison population, because I don't want to be there. But we've got
judgment-impaired people, and those are the ones who commit the
worst offenses, and they have the least going on upstairs. And we,
as a society, have never found an adequate way of dealing with
them."
Number 0546
REPRESENTATIVE GREEN asked whether there is any chance, in Ms.
Knuth's estimation, that a judge may someday find a disparity
between the treatment of those like Garcia and those like the men
who make furniture, ruling that it is somehow inequitable, although
both groups would be serving 99 years or more.
MS. KNUTH replied that departments of corrections are given fairly
broad latitude in evaluating the risk posed by inmates, and are
expected to make individualized determinations. "So, I think not,"
she concluded.
Number 0638
REPRESENTATIVE ROKEBERG stated his understanding that the
legislature had raised the DOC budget by $5 million this year, and
that perhaps it was the request that was $3 million less.
MS. KNUTH replied, "We were underfunded $3 million from what we
believe is essential to meet our current population. But thank you
for the correction."
REPRESENTATIVE ROKEBERG said he believes there was testimony before
the finance subcommittee, by the commissioner, that they've reached
a plateau on population growth. He asked whether Ms. Knuth knows
if that is still holding up in the last month.
MS. KNUTH answered, "We are experiencing some growth, but not as
much as had been forecasted, say, a year ago. And we're very
fortunate in that regard. But we are overexpense, overbudget; for
example, at Cook Inlet facility, we're holding more inmates there
than we have room for, because Anchorage is the service hub for
medical services and items like that. So, even though our total
population is being very cooperative with our budget crisis, we do
still have a problem."
Number 0703
CHAIRMAN KOTT asked whether anyone else wished to testify, then
closed public testimony.
Number 0721
REPRESENTATIVE GREEN commented that this is the third death penalty
bill that he has seen in this committee over seven years. He noted
that the general public sometimes doesn't have access to this much
detail, and polls often reflect how a question was asked. In a
poll in his own district, the initial question was asked: Do you
favor the death penalty? And 60 percent said yes. However, when
asked whether they would favor it if they knew that the cost was
two and a half times as great, the same respondents changed their
answers, and the positive answers fell below 50 percent. He
pointed out that that doesn't go to the moral issue or the issue or
later proving that someone is innocent. He also noted that Texas
is now reconsidering whether they should keep the death penalty.
Representative Green concluded by saying he has reservations about
even moving this from the committee.
Number 0874
CHAIRMAN KOTT asked the sponsor whether the intent is to try to
convict and execute a 15-year-old for killing a 12-year-old.
REPRESENTATIVE MASEK replied, "The intent of the bill was not to
put a 15-year-old to death. It's for people that are over the age
of 18, for adults that prey upon children, and that being children
under the age of 18."
CHAIRMAN KOTT noted that there had been discussion that Section 6
leads one to believe that those who committed a murder in the first
degree would fall within the purview of the bill, based on the
aggravators. He asked whether that is the intent.
REPRESENTATIVE MASEK answered, "Well, the title is pretty
restrictive, Mr. Chairman. It says for murder of the child." She
said that any other language therefore will not change what the
title says.
CHAIRMAN KOTT maintained that there is a problem with that one
section. He pointed out that even the title says "An Act relating
to murder;" at the beginning. He said he doesn't know if that is
the intent, to go that far.
REPRESENTATIVE MASEK replied, "No, that isn't the intent. It was
just for those that kidnap and assault and murder children."
Number 1033
REPRESENTATIVE ROKEBERG said there seem to be technical problems
that need to be worked on.
CHAIRMAN KOTT agreed, acknowledging that there are other issues, as
well. He noted that testifiers the previous day had provided good
information, and that the committee had requested background
information and studies from one family member who had testified,
as well as statistics from Barbara Brink regarding costs. Chairman
Kott said although this committee is not charged with the financial
aspects, the bill certainly does have costs associated with the DOC
and the judiciary that should be addressed. He said he wants to
work with the drafter regarding the intent.
CHAIRMAN KOTT assigned HB 75 to a subcommittee, to be chaired by
Representative Green. Also on the subcommittee would be
Representatives James and Croft. He asked them to try to iron out
the difficulties with the legal side, after which they perhaps
could discuss other issues.
REPRESENTATIVE GREEN asked whether they could seek outside
expertise on legal issues.
CHAIRMAN KOTT agreed to that, emphasizing the need to start with
something that clearly is indicative of the will of the sponsor.
[HB 75 was held over.]
Number 1300
CHAIRMAN KOTT called an at-ease at 2:39 p.m.; he called the meeting
back to order at 2:40 p.m.
HB 67 - BAIL HEARING FOR SEX OFFENDERS
CHAIRMAN KOTT announced that the next item of business would be
House Bill No. 67, "An Act relating to release of certain persons
alleged to have committed certain sexual offenses." He noted that
it had been heard by the committee previously.
Number 1327
REPRESENTATIVE NORMAN ROKEBERG, sponsor, referred to a new proposed
committee substitute, Version I [l-LS0197\I, Luckhaupt, 3/12/99],
which was subsequently distributed.
Number 1379
JANET SEITZ, Legislative Assistant to Representative Norman
Rokeberg, Alaska State Legislature, came forward to explain the
changes. Instead of the plan envisioned in the original bill,
Version I is similar to a judge's release in domestic violence
cases. It adds a new section to cover all sexual assaults, not
just those against children. It also permits the judge to impose
additional conditions on a person charged or convicted of these
crimes, concerning having no contact with the alleged victim,
residing in a place where there is no likelihood of coming in
contact with the victim, and taking medication as prescribed.
MS. SEITZ explained that the victim is currently notified of the
bail hearing, but there is no inquiry by the judicial officer to
see whether the victim actually got the notice; this was where the
system had broken down in Representative Rokeberg's constituent's
case. Under this bill, before a person who is charged or convicted
of one of these crimes is released, the judicial officer is
required to ask the victim, or the victim's representative, about
the notice. The judicial officer is also to inquire whether the
victim or the victim's representative is in court and wishes to
testify; testifying is not mandatory, however. Ms. Seitz noted
that they had worked with Anne Carpeneti of the Department of Law
and Doug Wooliver of the Alaska Court System, both of whom had
suggested changes that are in Version I.
Number 1502
DOUG WOOLIVER, Administrative Attorney, Office of the
Administrative Director, Alaska Court System, noted that one
previous concern was that a judge might be precluded from releasing
a defendant on bail if the Department of Law was unable to notify
the victim, for whatever reason. This requires the judge to make
the inquiry. However, if reasonable efforts have been made, but to
no avail, the process can continue. That had been their main
concern, Mr. Wooliver said, and has been addressed in this version.
Number 1542
REPRESENTATIVE GREEN asked whether the changes in Version I are
procedural, then, rather than addressing changes in the penalties.
MR. WOOLIVER affirmed that.
Number 1573
REPRESENTATIVE JAMES made a motion to adopt Version I as the
working draft. There being no objection, it was so ordered.
Number 1600
REPRESENTATIVE ROKEBERG complimented his staff on working closely
with the department and the court system to overcome problems
without creating a burden on the court system and to result in a
zero fiscal note. He pointed out that Mr. Wooliver has contacted
a number of sitting judges to see how this would work as a
practical matter. Upon Mr. Wooliver's counsel, they have elevated
the rights of the victims to make sure that if there are unique
circumstances, judges can take up 24-hour supervision, if
appropriate. However, they have removed the penalty provisions, to
give the judges discretion.
Number 1691
REPRESENTATIVE JAMES made a motion to move Version I [l-LS0197\I,
Luckhaupt, 3/12/99], out of committee with individual
recommendations and the attached zero fiscal note. There being no
objection, CSHB 67(JUD) moved out of the House Judiciary Standing
Committee.
HB 176 - PUBLIC INTEREST LITIGANTS
CHAIRMAN KOTT announced that the next item of business would be
House Bill No. 176, "An Act relating to attorney fees and costs and
the granting of public interest litigant status in proceedings
related to administrative actions and inactions; and amending Rules
79 and 82, Alaska Rules of Civil Procedure, and Rule 508, Alaska
Rules of Appellate Procedure." Present to explain the bill and
answer questions were Jeff Logan and Kevin Jardell, staff to
Representative Green.
Number 1786
JEFFREY LOGAN, Legislative Assistant to Representative Joe Green,
Alaska State Legislature, spoke on behalf of the sponsor, saying HB
176 is designed to "take the 'kick me' sign off of our backs."
Noting Alaska's resource development economy, he said the state
leases, sells, rents or somehow disposes of its resources, and then
collects a royalty, rent, tax, fee or other form of payment to fund
government services. To protect the public interest, the
legislature has spelled out a process that is carried out by the
Administration. There are three stages of notice; integrated
throughout are opportunities for extensive public involvement. The
people who carry out this process are almost always people with
impressive academic credentials, experience in their fields, and
dedication to public service, he said. There is a clear process,
carried out by competent people. But if a member of the public
opposes an agency action or inaction, there is yet another
opportunity to express that opposition: the administrative appeals
process. Failing that, a person can appeal to the courts. Mr.
Logan stated:
Mr. Chairman, some people who oppose the development of our
resources, and whose arguments don't win the day in this
extensive public process, choose this final category,
litigation in the courts, in an attempt to circumvent your
policy and the executive branch's application of it. And
that's okay, Mr. Chairman. House Bill 176 doesn't address the
process, or those people's right to access the court system.
What House Bill 176 does address is that under a doctrine
established by the court, these people are getting paid by the
state to sue the state; and that doctrine is called the Public
Interest Litigant Doctrine. The court has said that some
litigation is so important, [to] not just the parties bringing
the action but to the public at large, that the public at
large should ... foot the bill for the legal expenses, because
the public at large will benefit from the resolution of the
question at hand. And there is probably some merit to that,
if it worked that way.
Unfortunately, the court has seen fit to allow the people of
Alaska to foot the bill for other, smaller, more specific
questions before the court. House Bill 176 is a proposal to
change state policy, to go from getting sued and paying the
plaintiffs to sue us, to getting sued and letting them pay for
their own legal expenses, in essence, taking the "kick me"
sign off of our backs.
MR. LOGAN indicated he had a lot more material, then deferred to
testifiers on teleconference.
Number 2172
WILLIAM GREENE, Deputy Municipal Attorney, Municipality of
Anchorage, testified via teleconference from Anchorage that HB 176
is a step in the right direction. However, political subdivisions
have similar problems, and the municipality would appreciate having
the burden of public interest litigant fees included under the
coverage of HB 176. He referred briefly to SB 123, then indicated
the municipality has found, in its experience in the courts, the
very liberal awarding of public interest litigant fees and the
determination of who is a public interest litigant.
MR. GREENE said in cases involving state statute, the constitution,
or municipal law, the administrative or executive official making
the decision is limited by what the law states to a greater extent
than the courts are limited, he said. Accordingly, they run into
cases frequently in which, under the existing statutory or
ordinance law, the decision was correct but the courts overrode
that judgment and made the plaintiff or the appellant a public
interest litigant. The municipality ends up paying 100 percent of
the actual reasonable attorneys fees of the other side; in this
context, there is a great deal of leeway in determining what is
reasonable. Under Civil Rule 82, the court has wide discretion to
deviate from the schedules; at least in theory it could grant full
actual attorneys fees.
TAPE 99-33, SIDE A
Number 0001
MR. GREENE, in response to a question of Representative Rokeberg,
said in one instance the municipality prevailed in supporting the
ruling of its administrative official, and one minor matter ended
up being an advisory matter. The municipality is in the process of
litigating whether or not the plaintiff will obtain full public
interest litigant status on a relatively minor issue, because the
courts generally will not apportion fees between issues.
MR. GREENE told members that in a second case, the administrative
official followed the ordinance, the state statutes and the
constitution, but is limited in the degree to which the official
may amend an initiative ballot proposition, whereas the court has
some additional powers that allowed it to make some changes in
language in the petition statement itself. Those are two instances
in which the municipality faces a real prospect, they believe, of
paying full actual attorneys fees, in cases where the municipality
was, at least in part, correct. And in another instance where the
controlling issue in the case was answered by the court in the
municipality's favor, they are still looking at the potential of
substantial fees. Mr. Greene offered to provide further examples
in writing.
Number 0234
STEVE WILLIAMS, Attorney at Law, testified at length via
teleconference from Anchorage, noting that he has been an attorney
in Fairbanks and Anchorage for 21 years, mostly representing civil
commercial clients, although he does some public interest
litigation. He stated, "I'm here because I believe that this bill
is a bad policy and, frankly, bad politics." He told members:
One thing I think that needs to be made clear is that the
state is not paying people to sue them. What they are doing
is ... if - at the end of the litigation, often several years
out after a lawsuit is filed - the judiciary determines that
the state acted unconstitutionally or unlawfully, then the
party is entitled to reasonable attorneys fees under the
public interest ... litigant standard.
Secondly, with respect to Mr. Greene's testimony, I can fully
understand that the municipality would want in on this being
let off the hook for fees where they've acted unlawfully. No
executive likes to be sued and called to task for acting
unlawfully or unconstitutionally.
But I think that the key point that I want to make here is
that our society - our democratic society - is founded on the
rule of law; and that's a principal distinction between our
democracy and other places such as Stalinist Russia, "banana
republics," or modern-day Kosovos. Now, I'm not saying Alaska
is like that. But the principle is that the executive branch
of government must act lawfully and constitutionally, not
arbitrarily, and is subject to review and restraint by an
independent judiciary. This principle is recognized as
essential for emerging (indisc.) democracies around the world,
to protect the freedom and the rights of all citizens.
The public interest attorneys fees doctrine, which has been
recognized in Alaska for about 25 years, has as its purpose to
encourage private citizens to raise issues of public interest
where officials may be acting in an unlawful or
unconstitutional way, acting as a private attorney general to
vindicate the public interest and the rule of law. By
definition, ... under current law, a person is a public
interest litigant only if the case is designed to effectuate
strong public policies; if the plaintiff succeeds, numerous
people receive benefits from that success - numerous members
of the public; that only a private party could reasonably have
been expected to bring the suit; and that the purported public
interest litigant did not have a substantial, sufficient
economic incentive to file the suit, but was instead primarily
motivated to bring it by desire to raise and have decided
issues of significant public policy and legal importance.
... Currently, the successful public interest litigant is one
who's prevailed, who's obtained a judicial determination that
a public official's conduct was unlawful, is entitled to a
full reasonable fee ... for work devoted to pursuing that
determination. However, the court is required to reduce the
fee if the hourly rate is excessive, the total hours are
unreasonable, or if the party has unreasonably asserted issues
which are frivolous or were asserted in bad faith.
Furthermore, under current law ... a public interest litigant
is not liable to a public defendant for an award of attorneys
fees if the court does not rule in the public interest
litigant's favor. The reason for that rule is to eliminate
the substantial disincentive [that] would be presented to
citizens bringing cases of significant public interest. Few
people can afford to sue the government and face the risk of
having to pay substantial attorneys fees awards, in cases
where they have no significant economic interests but merely
are wanting to vindicate the public interest and the rule of
law.
HB 176 would eliminate these long-established public interest
principles in all cases where a public interest litigant
challenges action by the executive branch of state government.
It would treat public interest litigants as the same as those
who are motivated purely by financial incentive to sue, and,
therefore, add an economic interest in incurring the costs
and risks of litigation. It would thus dramatically reduce
the incentive to bring public interest cases, where state
officials are, in fact, acting in a way which is unlawful or
unconstitutional.
Instead of allowing a successful litigant to recover full
reasonable fees for vindicating the public interest in having
the executive branch - which, as we all know, at this point is
the Knowles Administration - acting ... lawfully and
constitutionally, it would allow the recovery of only 20 to 30
percent of those fees. And since most public interest fees
are matters of law and ... decided by summary judgment, it
would, in most cases, limit recovery to 20 percent of the
actual reasonable fees incurred in the case.
And I would submit that, with respect to private attorneys in
Alaska, many of whom work by themselves or in relatively small
firms, very few Alaskan lawyers could take on a public
interest case if, in the end - ... after perhaps three or four
years of litigation - they would be permitted to recover only
20 percent of their actual fees for work on the case. Those
of you on the committee who are attorneys, or who have worked
... in the law business, know that that percentage of a fee
would not even cover the overhead for most law firms, which
generally ranges somewhere around 30 to 40 percent ... of
revenues.
Moreover, by exposing public interest litigants to the risk of
facing award of fees, should the court not agree with their
legal challenge to the state executive's conduct, HB 176 will
clearly and dramatically ... deter such challenges from being
brought. The average citizen would face bankruptcy, were he
or she not to prevail on a public interest case, and be
subjected to a substantial fee award.
Number 0670
Now, I understand from talking to several folks, and it was
reaffirmed by [Representative] Green's staffer, that this bill
is apparently a reaction to certain public interest lawsuits,
with which ... some legislators disagree, or which they view
to be a nuisance, particularly in the natural resources area.
However, it is just a reaction, in the sense that this law
would affect all public interest litigants.
Alaska's public interest fee doctrine is not partisan. It
protects the rights of all Alaskans, of all political and
philosophical persuasions, to litigate issues of substantial
public interest. In fact, to the extent this ... bill
purports to be a, quote, "conservative political reaction" is
insulting to conservative principles. ...
MR. WILLIAMS offered as proof the following discussion of reported
cases on public interest litigation:
Those cases involving the administration of state laws ... in
which a litigant has been found to be a public interest
litigant included [a] considerable number of cases involving
political candidates or officeholders challenging election
conduct; cases contesting the conduct and result of state
elections; cases challenging state reapportionment schemes;
cases challenging fish and game regulatory statutes, or fish
and game enforcement or interpretation of them, where the
litigant relies on fish or game resources for personal, ...
rather than commercial, use, or where the litigation is
principally designed to implement the public interest; cases
challenging the state's public school ... funding formula
laws, in the way that they discriminate between REAA [Rural
Education Attendance Area] and non-REAA schools; cases
challenging regulations concerning the use of boats on the
Kenai River; challenges to the Local Boundary Commission
decisions concerning incorporation of municipalities;
challenges to the implied powers of government concerning
state rights-of-way.
And I think that these cases - and there are many more which
don't involve ... the state administration, but which involve
local government - these cases, if you review them fairly,
make it clear that the public interest litigation doctrine is
not, one, a doctrine which is merely about, quote, "liberal
groups" or "environmental groups" or even "civil liberties
groups." It's a doctrine which protects the rights of us all,
and protects the rights of people of all philosophical and
political persuasions to seek to vindicate the rule of law.
The only other comment I would make is that, in fact, what
this law will do is deter any private attorneys from taking
public interest cases brought by individual citizens. In
fact, the concern of some members of the legislature, and of
this committee, as expressed by Representative Green's aide,
is to somehow deter environmental organizations and law firms
from bringing lawsuits challenging natural resource decisions
by the state executive.
I would suggest that this bill will not do that, mainly
because that is what those groups exist to do. At most, this
bill will somewhat reduce their income from this particular
source, which they might get, again, if they were right, and
if they won the case - in other words, if their view of the
law was correct, ... at the end of a lawsuit. But, in fact,
those kinds of interest groups are out there and established
specifically to litigate these issues. So, I don't think that
this is going to be a deterrent to those sorts of interests
being asserted in litigation against the state executive.
Instead, it's going to be a deterrent against people who
aren't a part of organized environmental groups or other
organized groups, who may not have an organization ... with a
few staff attorneys who ... are capable of bringing cases. It
will, in fact, deter people who go to lawyers like me and say,
"I think that I was not treated fairly," or "I think that the
state government is acting unlawfully; will you help me?" And
I'd have to look at that people and say, "I really want to.
I care about this. But you have to understand that I can't
afford to take a case on where, even if we're right, and even
if we get paid some fee three years from now, or four years
from now, it will only be 20 percent of what I actually put
into the case, which won't even be enough to cover my
overhead."
So, in conclusion, I just think that ... there's no doubt that
this bill will seriously reduce the power of Alaskans of all
political persuasions to ensure that the executive branch of
their government - the Knowles Administration, for at least
the next three and a half years - conducts itself in a way
which is lawful, consistent with the laws passed by this
legislature, and constitutional. Simply put, the bill will
erode the rule of law in Alaska, and I would urge the
committee not to pass it out.
Number 1002
KEVIN JARDELL, Legislative Assistant to Representative Joe Green,
Alaska State Legislature, responded that he takes some exception to
the loose analogy to Kosovo and "banana republic" countries,
although he realizes it was to make a point. He then reminded
members that neither the federal system nor any other state system,
to his knowledge, has such a broad doctrine. He stated:
I don't think, if the doctrine is eliminated or is defined in
some other way, that we would see an all-out destruction of
the rule of law by any means, or even an erosion of the rule
of law. Throughout this state's history, we've had people
stand up and take it upon themselves to challenge actions by
municipalities, the state; and we're not saying that they
can't do that now. In fact, in the state of Alaska we have a
system, under Rule 82, that pays a portion of their fees if
they do, in fact, win and are considered the prevailing party.
This just eliminates the doctrine, or will redefine the
doctrine, in a way, that some policymakers believe brings it
more in line with what they feel [it] should be.
Some of the problems that we see have been brought out by the
Administration, in its arguments in cases, when it argues that
the courts have reimbursed public interest litigants for
legislative lobbying costs. The courts have allowed public
interest litigant status to be awarded to groups and
individuals that are seeking policy agendas, and not
necessarily in the public interest. ...
The question the Administration posed to the court was: What
amount should the Alaska Center for the Environment be awarded
as an accidental beneficiary of an unfortunately drafted
settlement agreement, the fatal deficiencies (indisc.) which
were established by others? This is a case where ACE won
approximately three out of eleven claims. The court decided
that even those three weren't significant. The superior court
said, "We won't give you any fees." The supreme court
remanded the case and said, "Not only will you pay them fees,
but you'll pay them $456,000." That's the type of abuse of
the policy that we [have] recognized, and that we are trying
to remedy.
Now, whether there are other solutions, other considerations
that can be brought up -- I know the sponsor is always open to
suggestions. The municipality has raised some points that
they would like to bring up, apparently, and ... the sponsor
would be more than happy to listen to those suggestions. But
there is a problem, and it needs to be addressed. And this is
an attempt to address that problem.
CHAIRMAN KOTT asked whether Mr. Williams wished to reply briefly.
Number 1211
MR. WILLIAMS responded that, first, he was obviously not comparing
Governor Knowles to [Yugoslav President] Milosevic. He himself
believes that the conduct of the government is subject to review by
the judiciary, and there is no doubt that the ability of people to
obtain judicial review of executive conduct will be diminished
here. Second, he agrees with Mr. Jardell that most other states
don't provide for attorneys fees, except in certain statutorily
provided situations. In fact, very few other states provide for an
award of attorneys fees against the losing party, period. It is,
therefore, a two-edged sword. He believes that HB 176 will provide
a substantial disincentive to people bringing public interest
cases, although probably not to some organizations that exist for
this very purpose.
Number 1318
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and
Sexual Assault, came forward. She told members that unfortunately
the network had entered into litigation as a public interest
litigant after passage of the domestic violence prevention and
victim protection Act of 1996. It was a case against the court
system, which had refused to recognize the three separate types of
protective orders that the legislature had made provision for in
the Act; through court forms, only two kinds of protective orders
were available.
MS. HUGONIN explained, "We tried to work with their forms
committee. We tried to work with Mr. Snowden, who was the
administrator at the time. We tried to intervene through talks
with the Administration, talking to the court system. Then
Representative Parnell also tried to work with the court system to
remedy this short of litigation. And we were not successful in any
of our attempts to do so. And so, we believe strongly enough that
victims were being put at risk, by not being able to ... avail
themselves of this remedy that the legislature had provided, that
we did enter into litigation against the court system."
MS. HUGONIN noted that they had been successful in that litigation,
winning on all issues. They tried to reduce costs, she said, and
they sold T-shirts and sweatshirts. They are a small
organization that is lucky if it has $10,000 in the bank. Although
only about two-thirds of their attorneys fees were awarded to them,
the ability to collect those attorneys fees helped them to stay a
viable entity. She understands that the concern is of maybe a
bigger proportion in terms of money that the state has to return to
programs. However, it affects little programs, as well - and on
matters of life and death.
MS. HUGONIN said as she reads them, HB 176 differs from the Senate
bill in that it applies to executive branch actions. Although
their particular case against the judicial branch may not fall
within the scope of this bill, there could be occasions where they
need to litigate against the Administration, if the Administration
chooses to not follow a policy meant for the protection of victims,
for example, and is, in fact, endangering them. Ms. Hugonin
expressed hope that some consideration would be given to narrowing
the scope or, for a prevailing party, allowing the court to
continue to have discretion in the amount of the attorneys fees
awarded. Noting that their case was the first time her
organization had to be a public interest litigant, she said she
hopes it is the last. "But we would like to be able to avail
ourselves of that, if it became necessary again," she concluded.
Number 1515
REPRESENTATIVE GREEN asked whether that two-thirds was awarded
because of being a public interest litigant or because of being the
victorious party.
MS. HUGONIN replied that she believes it was for both reasons.
REPRESENTATIVE GREEN asked whether she believes they would have
been awarded no fees if they hadn't applied as a public interest
litigant.
MS. HUGONIN said she wasn't sure, as she is not an attorney.
Number 1617
MR. JARDELL, who is an attorney, clarified that under Rule 82 the
court can award more than the 30 percent or 20 percent that is
given in section (b), and factors are set out for the courts to
look at. Even under Rule 82, therefore, the court could always
come back, for whatever reason deemed necessary, and award whatever
it believes to be adequate.
Number 1714
REPRESENTATIVE ROKEBERG asked whether it is a fair analysis that
the legislature, rather than the court system, makes the laws, and
that in this case the courts clearly have usurped the lawmaking
ability of the legislature.
MR. JARDELL answered that if one goes far enough back, to common
law, the courts set all law. It has evolved from that to more of
a civil law, to where we now codify almost everything. Reserved in
the common law is the concept that if the legislature hasn't spoken
to it, the courts can create it. Therefore, until the legislature
speaks to it, the courts can create a doctrine.
REPRESENTATIVE ROKEBERG asked whether the legislature couldn't
repeal any public interest doctrine or principles, and restrict the
court from applying them.
MR. JARDELL replied, "Absolutely."
REPRESENTATIVE ROKEBERG thanked Representative Green for
introducing HB 176, saying it is one of the best bills he has seen
this session, including his own. He disagreed with Mr. Williams
that this would erode the rule of law, then stated, "I'd say the
existence of this is making scofflaws of people who intentionally
litigate for the very purpose of filling their own coffers and
pursuing agendas, and of taking advantage of this, to the degree
that it's stifled development and cost literally thousands of jobs
in this state. And it's the most frustrating thing I've witnesses
here for the last 50 years of my life, the development of this type
of thing."
Number 1786
CHAIRMAN KOTT referred to Mr. Greene's suggestion that HB 176 be
extended to apply to municipalities. He asked whether that had
been given any thought.
MR. JARDELL affirmed that, then added, "We didn't have any good
communications with the municipality, and weren't aware of exactly
what type of problem existed there. We were working under a rough
assumption that they may see more of ... causes of action that ...
may be in the realm where the policy makers here believe it should
be a sole individual standing up for zoning problems against the
municipality, and not really running into the same problems that
the state does. We work with the state, so we're more aware of the
state's problems." Mr. Jardell said they would contact Mr. Greene
and work with him; if there is a need to extend this to
municipalities, and a way to do that, then the sponsor's office
will see whether it can be done.
Number 1848
REPRESENTATIVE KERTTULA pointed out that courts create the rule of
law along with the legislature.
REPRESENTATIVE ROKEBERG responded, "I don't disagree with
Representative Kerttula; I just think we're in the constitutionally
superior position." He then asked whether there is a potential
here to distinguish between natural resource or development
activities and other grievances, without running afoul of
constitutional fairness mandates, for example.
Number 1903
MR. JARDELL replied that the federal method and most states'
methods are to determine specific causes of action, such as
election laws, and make a determination that election laws are an
area that they want to encourage people to challenge, for instance,
as a foundation of democracy; therefore, they will allow full
reasonable attorneys fees as an exception to that cause of action.
However, it is very difficult to develop each and every cause of
action that could come up. It is also difficult to try to come up
with a balance for the carrot and the stick, without having a
doctrine like we do now.
REPRESENTATIVE KERTTULA responded that therein lies the problem.
They would foreclose a whole range of public interest litigation,
including civil rights cases, public information matters or those
raised by Ms. Hugonin, for example, not just that involving natural
resources.
REPRESENTATIVE ROKEBERG said he takes exception, asking whether the
issue is now paying Mr. Williams' overhead. He commented that
members of the bar have an obligation to look out for people whose
rights are being stepped on, and who don't have the resources to
come forward. He said he believes the current situation is being
abused.
MR. JARDELL addressed Representative Kerttula's comment, saying
that the exception mentioned earlier in Rule 82 would still provide
the courts a remedy for those situations that aren't being abusive,
and which truly merit a greater award of attorneys fees than the 30
percent or 20 percent.
Number 2054
MR. LOGAN referred to the 1990 Alaska Supreme Court opinion
provided in committee packets regarding Anchorage Daily News v.
Anchorage School District. He clarified that although that is the
case where the court enumerated the four standards that must be met
in order to be considered a public interest litigant, that was a
case where the plaintiff was a subsidiary of a large newspaper
corporation. It isn't always an indigent organizations that is
granted public interest litigation status, he pointed out.
Number 2089
MS. HUGONIN expressed her understanding that one reason why her
organization became a public interest litigant was because it
needed standing in order to appear in court. Part of what HB 176
does is remove the notion of public interest litigant or doctrine.
She asked the committee to consider still allowing these litigants
to have standing in court, to continue to bring these matters
forward, aside from the issue of attorney fees.
Number 2158
MR. JARDELL pointed out that standing is a completely different
issue from attorneys fees, and this would have no affect,
whatsoever, on the ability of one person or another to obtain
standing.
REPRESENTATIVE ROKEBERG said he is aware of a part-time fisherman
in Haines with standing enough to bring down and stop any
development anywhere in the state of Alaska, in terms of the
practical application of the Alaska courts.
MR. JARDELL stated, "Even with public interest litigants, when
there's a group the courts still look to the members of the group
to see if the members having standing, so that the group will have
standing. And so, whether you're claiming to be a public interest
litigant or not, you're still going to have to have an individual
standing classification, some injury, in fact. So, this really
would not have any effect on a person's ability to get so-called
standing."
Number 2231
CHAIRMAN KOTT asked whether there were further questions or
testifiers, then closed public testimony.
Number 2247
REPRESENTATIVE KERTTULA told members she would like to be sure on
the issue of standing, as she doesn't want to change the statute on
that. Second, she would like to show the committee the kinds of
cases that get these awards. These are people who have won their
cases, which is why they are getting the awards, she noted.
REPRESENTATIVE ROKEBERG agreed that would be great information,
stating his understanding that with resource cases, it is "merely
technical, minor provisions that allow 100 percent awards, and it
stops development for five years."
REPRESENTATIVE KERTTULA responded that those aren't the cases she
has seen.
CHAIRMAN KOTT agreed that these are valid concerns. He indicated
he looked forward to hearing from Representative Kerttula regarding
standing and the types of cases, at the next hearing on the bill.
He concluded by announcing that HB 176 would be held over.
HJR 30 - CONST. AM: REPEAL BUDGET RESERVE FUND
CHAIRMAN KOTT announced that the final item of business would be
House Joint Resolution No. 30, proposing amendments to the
Constitution of the State of Alaska repealing provisions relating
to the constitutional budget reserve fund and providing that the
balance in the fund be deposited into the budget reserve fund
established by statute. There was no longer a quorum, and Chairman
Kott advised listeners that there would be only an opening
statement.
Number 2336
BARBARA COTTING, Legislative Assistant to Representative Jeannette
James, Alaska State Legislature, explained on behalf of the sponsor
that HJR 30 simply proposes a constitutional amendment to do away
with the constitutional budget reserve (CBR) fund; where the money
would go is up to the committee. She referred members to a fiscal
note to cover the Official Election Pamphlet, and to the sponsor
statement, which contained a history of how the CBR started and why
it appears to have outlived its usefulness. Created to keep the
legislature from spending more money, the CBR has had the opposite
effect, she said. It complicates the budget process and creates
dissent between the minority and majority at budget time.
Therefore, Representative James believes it should be repealed. A
lot of plans are coming out regarding use of the CBR money. As HJR
30 stands, the money would go into a "long-established budget
reserve fund in statute," but Representative James is not set on
that idea. It could go anywhere that it earns a good amount of
interest and is available without a three-quarters' vote.
[Representative Rokeberg's motion to move the resolution was in
jest.]
CHAIRMAN KOTT announced that HJR 30 would be held over until the
following Monday, at which time he would ask about the debt owed by
the state to the CBR. Specifically, he wanted to know what becomes
of the pay-back status, and whether it is transferred into a
subsequent fund, for example, in the event that the state doesn't
have enough to repay that loan. [HJR 30 was held over.]
ADJOURNMENT
Number 2444
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 3:45 p.m.
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