02/02/2004 01:10 PM House JUD

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ALASKA STATE LEGISLATURE HOUSE JUDICIARY STANDING COMMITTEE February 2, 2004 1:10 p.m. MEMBERS PRESENT Representative Lesil McGuire, Chair Representative Tom Anderson, Vice Chair Representative Jim Holm Representative Dan Ogg Representative Ralph Samuels Representative Les Gara Representative Max Gruenberg MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE JOINT RESOLUTION NO. 9 Proposing amendments to the Constitution of the State of Alaska relating to an appropriation limit and a spending limit. - MOVED CSHJR 9(JUD) OUT OF COMMITTEE HOUSE BILL NO. 342 "An Act relating to driving while intoxicated; and providing for an effective date." - HEARD AND HELD HOUSE BILL NO. 227 "An Act increasing the jurisdictional limit for small claims and for magistrates from $7,500 to $10,000; increasing the jurisdictional limit of district courts in certain civil cases from $50,000 to $75,000; and amending Rule 11(a)(4), Alaska District Court Rules of Civil Procedure, relating to service of process for small claims." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 349 "An Act amending Rule 412, Alaska Rules of Evidence." - SCHEDULED BUT NOT HEARD PREVIOUS COMMITTEE ACTION BILL: HJR 9 SHORT TITLE: CONST AM: APPROPRIATION/SPENDING LIMIT REPRESENTATIVE(s): STOLTZE 01/31/03 (H) READ THE FIRST TIME - REFERRALS

01/31/03 (H) STA, JUD, FIN 02/11/03 (H) STA AT 8:00 AM CAPITOL 102 02/11/03 (H) Heard & Held 02/11/03 (H) MINUTE(STA) 04/04/03 (H) W&M REFERRAL ADDED BEFORE STA 04/09/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519 04/09/03 (H) Heard & Held 04/09/03 (H) MINUTE(W&M) 04/17/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519 04/17/03 (H) Heard & Held 04/17/03 (H) MINUTE(W&M) 04/24/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519 04/24/03 (H) Heard & Held 04/24/03 (H) MINUTE(W&M) 04/29/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519 04/29/03 (H) Heard & Held 04/29/03 (H) MINUTE(W&M) 04/30/03 (H) W&M AT 8:00 AM HOUSE FINANCE 519 04/30/03 (H) Heard & Held 04/30/03 (H) MINUTE(W&M) 05/02/03 (H) W&M AT 7:00 AM HOUSE FINANCE 519 05/02/03 (H) Moved CSHJR 9(W&M) Out of Committee 05/02/03 (H) MINUTE(W&M) 05/02/03 (H) W&M RPT CS(W&M) NT 3DP 2NR 2AM 05/02/03 (H) DP: HEINZE, WHITAKER, HAWKER; 05/02/03 (H) NR: MOSES, GRUENBERG; AM: KOHRING, 05/02/03 (H) WILSON 05/06/03 (H) STA AT 8:00 AM CAPITOL 102 05/06/03 (H) Scheduled But Not Heard 05/06/03 (H) JUD AT 5:30 PM CAPITOL 120 05/06/03 (H) -- Meeting Canceled -- 05/06/03 (H) STA AT 5:30 PM CAPITOL 102 05/06/03 (H) -- Meeting Canceled -- 05/07/03 (H) STA AT 8:00 AM CAPITOL 102 05/07/03 (H) Heard & Held 05/07/03 (H) MINUTE(STA) 05/07/03 (H) JUD AT 1:00 PM CAPITOL 120 05/07/03 (H) <Bill Hearing Postponed> 05/08/03 (H) STA AT 8:00 AM CAPITOL 102 05/08/03 (H) Moved CSHJR 9(STA) Out of Committee 05/08/03 (H) MINUTE(STA) 05/08/03 (H) STA RPT CS(STA) NT 3DP 3NR 05/08/03 (H) DP: SEATON, LYNN, DAHLSTROM; 05/08/03 (H) NR: GRUENBERG, HOLM, WEYHRAUCH 05/08/03 (H) JUD AT 3:30 PM CAPITOL 120 05/08/03 (H) <Bill Hearing Postponed> 05/09/03 (H) JUD AT 1:00 PM CAPITOL 120 05/09/03 (H) Heard & Held 05/09/03 (H) MINUTE(JUD) 05/12/03 (H) JUD AT 1:00 PM CAPITOL 120 05/12/03 (H) <Bill Hearing Postponed to Wed. 5/14/03> 05/14/03 (H) JUD AT 1:00 PM CAPITOL 120 05/14/03 (H) Heard & Held 05/14/03 (H) MINUTE(JUD) 05/15/03 (H) JUD AT 8:30 AM CAPITOL 120 05/15/03 (H) -- Meeting Canceled -- 10/29/03 (H) JUD AT 5:00 PM Anch LIO Conf Rm 10/29/03 (H) Heard & Held 10/29/03 (H) MINUTE(JUD) 10/29/03 (H) MINUTE(JUD)

01/23/04 (H) JUD AT 1:00 PM CAPITOL 120

01/23/04 (H) Heard & Held

01/23/04 (H) MINUTE(JUD) 02/02/04 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 342 SHORT TITLE: INCREASE DRIVING UNDER INFLUENCE PENALTY REPRESENTATIVE(s): GATTO

01/12/04 (H) PREFILE RELEASED 1/2/04

01/12/04 (H) READ THE FIRST TIME - REFERRALS

01/12/04 (H) JUD WITNESS REGISTER REPRESENTATIVE BILL STOLTZE Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Sponsor of HJR 9. REPRESENTATIVE CARL GATTO Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Testified as the sponsor of ACTION NARRATIVE TAPE 04-9, SIDE A Number 0001 CHAIR LESIL McGUIRE called the House Judiciary Standing Committee meeting to order at 1:10 p.m. Representatives McGuire, Holm, Ogg, Samuels, and Gruenberg were present at the call to order. Representatives Anderson and Gara arrived as the meeting was in progress. HJR Number 0057 CHAIR McGUIRE announced that the first order of business would be HOUSE JOINT RESOLUTION NO. 9, Proposing amendments to the Constitution of the State of Alaska relating to an appropriation limit and a spending limit. [Before the committee was the proposed committee substitute (CS) for TAPE 04-9, SIDE B Number 2391 REPRESENTATIVE HOLM concurred that the current system does not allow the legislature to dictate to school districts how to spend their money. Instead, money goes to a city or borough government, which in turn distributes that money to its school districts based on their budgets and, therefore, it is the school districts themselves that determine classroom size. He went on to say: We, as a society, have done a lot of things to stop classroom sizes from being small. We have added ADA [Americans with Disabilities Act] programs, which completely dictate how monies are spent in different areas. We've added a lack of discipline in classrooms, which really dictate how carefully people can learn; sometimes they can't learn at all because one or two students in the room take the teacher's time 100 percent, and so the ones who are going to produce something in society, many times, are the ones that are the most hurt. So, a lot of the things that we do in our zeal to protect our education system sometimes, I might argue, really work in the reverse. But as a practical matter, ... we can't make those specifications as to the number of children that are in classrooms in the [Alaska State] Constitution, nor should we. MS. FRASCA, in the issue of education funding, said: We tend to look at what we're getting for the $722 million that we are investing as opposed to what we're not getting for the $40 million that we're not spending. But I'd also like to point out that the formula is written so that communities, those that could afford it, participate in the cost of education. And under the existing formula, Anchorage ..., for example, ... could be, under the state law, contributing [$12.5 million] more than it currently is. Juneau [and] Kenai are currently ... just about up to the max that they could contribute. So, for those with a community that education [is] of such a high priority, they might look to see what they're capable of doing, as well. Thank you. CHAIR McGUIRE said, "Point taken." REPRESENTATIVE GARA relayed that if members are in opposition to Amendment 4 because of its current wording, then he would be willing to accept an amendment to Amendment 4 for the purpose of clarifying the language. If, however, members have "substantive" opposition, then he understands. acknowledged Ms. Frasca's point, and asked whether she is suggesting that Anchorage should increase its taxes. MS. FRASCA said no; rather, she is simply pointing out that the current education funding formula recognizes local community contributions. REPRESENTATIVE SAMUELS, turning to the issue of the requirement that 70 percent of the funds that school districts receive must go into the classroom, remarked that some of the same school districts consistently ask for a waiver from the state, and the state keeps granting those waivers. "So we can't kid ourselves; we passed a law that we're very proud of, and then we had a waiver and everybody's percentage stays the same," he added. Number 2233 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of Amendment 4. Representatives Anderson, Ogg, Holm, Samuels, and McGuire voted against it. Therefore, Amendment 4 failed by a vote of 2-5. Number 2217 REPRESENTATIVE ANDERSON moved to report the proposed CS 9, committee with individual recommendations and the accompanying fiscal notes. Number 2199 REPRESENTATIVE OGG objected for the purpose of discussion. He went on to say: It's tough. It's tough to put a limit on appropriations, and it is very hard for me, given the history of America: that we fought very hard that decisions would be made by the majority. And when ... our Founding Fathers did that, they said ... appropriation power: 51 percent, ... or one past half. And I think the [founders] of the Alaska [State] Constitution did exactly the same thing, and the first section in the taxing power says that there shall now [be] no limits on taxing in this state by the legislature's power to do that. And I think that's an important power that the people have given to us, the legislature; that's a responsibility. Unfortunately, in the past, when we had an overflow of oil money, some of the legislators felt the pressure that we're spending too much and put in an appropriation limit ... that does put a limit, however ineffective as it is. But it was the legislature that tied their own hands at that point, not trusting their ability to make decisions that the public and the people who voted in our constitution said, "This is your responsibility." My concern ... is that when we set appropriation limits, we do not give ourselves, as a legislature representing the people of this state, the ability to respond to events as they occur. And I think that that's what our [Alaska State] Constitution has been set up for, is to give us that ability, and we are the representatives of the people - we're a republican form of government - and it is our duty. And should we do our duty wrong, [then] every two years - at least the House members - we're subject to the vote of the people. And if we spend too much, then the folks will say your doing that, and they will take you out of office and somebody else who's a little more fiscally responsible will be elected. I think that's the power that I recognize, when we move this through committee, we're giving up; we're giving up that responsibility to the voters. I have real problems with [proposed Section 16(b)], which shifts it to ... three-fourths of the members of each house. Number 2109 REPRESENTATIVE OGG continued: It can be viewed a couple ways. It can be viewed that some folks in a majority feel that their viewpoint isn't getting across, and so in order to tie the hands of the majority, you increase that power a little higher in order to vote yourself the ability to respond to circumstances. That's one edge of the sword. The other edge of the sword is that with the Constitutional Budget Reserve, we are actually empowering a minority, and all we have to do is look south to California - they have a two-thirds requirement to pass their annual budget - and look at the state of their financial affairs if you give up to the minority. And so when you put this three-quarter vote in here, you're asking for "Christmas trees." It's very difficult. I can see doing this for a period of time, and I think that the ... sponsor does address that [in] six years, but to put it in the hands of the public and not in the hands of the legislature, to renew this, seems to be giving up our authority again on taxing and appropriation. And I'd much prefer to see something that says in here that this would be good for six years and then the legislature would have to decide on their own whether they wanted to reenact this. This is called sort of a hard date and not a soft date; this just happens over time. I won't be making those amendments here, but I want it to be clear on the record that these are problems for me, and I think they should be problems for the legislature. When we change the [Alaska State] Constitution I think we need to be very careful [because] you start to shift the relationship between the legislature and the people of this state and our form of government, and I have great concerns that this goes down a road that says, "We the legislature don't trust ourselves; we need to handcuff ourselves because we have all this money." ... It seems the big problem is that [when] we have excess oil monies, we've put it into a permanent fund and we're wrestling with how to fund state government out of that, and perhaps a way to do this is to narrow this to appropriations from that fund and [thereby] not impact our ability to tax. Number 2014 REPRESENTATIVE OGG concluded: I don't think there's any question about our ability to tax. You tax too much, they'll have somebody else in your seat .... So that balance is in the [Alaska State] Constitution. But the only thing that's out of balance is this permanent fund; we have such excess of money. So as this thing goes through, I certainly hope that that issue will be addressed ... Perhaps we can just narrow this to the permanent fund itself and not to the whole spectrum of our powers of taxation and appropriation. CHAIR McGUIRE offered her belief that all of the committee members have struggled with the very concerns raised by Representative Ogg. The power to appropriate is the legislature's one power, and if the constitutional amendment proposed by HJR would be eliminated, at least in part. She said she hopes that more improvements will be made to the resolution as it goes through the process. Alaska is one of the few states that has continued to reduce government spending over the last decade, she remarked, and relayed that her concern centers around the possibility that a future legislature will reverse that trend; thus HJR of future legislatures. CHAIR McGUIRE mentioned her approval for the provision requiring voter reauthorization every six years. She opined that "this whole sweep with the CBR [Constitutional Budget Reserve]" is not working as intended, "where we're bribing votes and ... pushing the budget up beyond what we thought it would be and certain people who give those votes get a little bit more in their community for capital projects, and I think it's appalling." know for sure that's not how it was intended," she added. She mentioned that she could envision the three-quarter vote requirement of HJR that are occurring with the CBR, thereby rendering the resolution ineffectual. CHAIR McGUIRE relayed that her constituency simply does not trust the legislature to not spend more money than it needs to. She noted that when oil revenues were high in 1980s, the legislature spent money on ridiculous things; so now, when the legislature is trying to do worthwhile things like reduce classroom size, the public doesn't trust the legislature. Should a gas pipeline be built or the Arctic National Wildlife Refuge (ANWR) be opened, she predicted, in order to get to a percentage of market value or to a consideration of a broad- based tax, the concept embodied in HB Number 1531 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 342, "An Act relating to driving while intoxicated; and providing for an effective date." Number 1517 REPRESENTATIVE CARL GATTO, Alaska State Legislature, sponsor of HB 342, "delineate" the person who drinks and drives. Representative Gatto related that about 50 percent of the crashes involving fatalities also involve [an individual with] a blood alcohol concentration (BAC) of 0.15 and greater. Furthermore, he related that most accidents are single-vehicle crashes and if an individual has a BAC of 0.15 or higher, that individual is 385 times more likely to be involved in a single vehicle crash. He pointed out that often, these single vehicles have additional passengers. Representative Gatto highlighted that there is no fiscal note for HB as a result of these accidents, one must realize that millions of dollars of medical and life costs are incurred. Therefore, the increase in fines proposed by HB agreement with Representative Gara in regard to the notion that there needs to be a balance between the penalties and the group of individuals who will face the penalties. He mentioned the need to encourage proactive measures as well. Although Representative Anderson said he understands MADD's punitive position, he feels that sometimes MADD doesn't look at alternative measures, which are also helpful to review. REPRESENTATIVE GATTO informed the committee that 31 states plus Washington, D.C., and American Samoa have legislation [that increases the fines for DUIs]. TAPE 04-10, SIDE A Number 0126 REPRESENTATIVE HOLM recalled a newspaper article in which a gentleman was picked up at a bar for sleeping in his car. Representative Holm noted his agreement with Representative Anderson in that one must look at things with respect to the damage to the person committing [the crime] as well as the threat to society. He said that he has never understood how someone warming up his or her car could be considered driving, especially in Alaska's cold climate. Representative Holm noted his appreciation of Representative Gatto's idea that there should be consequences for one's actions, adding that too often the legislature legislates such that people don't pay the consequences for their actions. Number 0285 CINDY CASHEN, Executive Director, Juneau Chapter, Mothers Against Drunk Driving (MADD), began by informing the committee that today she is representing the MADD chapters from Anchorage, Fairbanks, Matanuska-Susitna ("Mat-Su") valley, and Juneau. She noted that she is also a victim of drunk driving. Ms. Cashen announced that MADD supports HB high risk and chronic drunk drivers. In order to deal with the aforementioned, the state must have a practical operational definition based on objective measures growing out of the drunk- driving enforcement and criminal justice processes. She stressed that the definition can't be left to the screening process that involves subjective elements such as self-reports and professional assessments, even when provided by licensed alcohol treatment specialists. The sanctions need to be in the courtroom. Number 0419 CHAIR McGUIRE recalled HB Alaska State Legislature, that at one point tied funding of wellness courts to the newly imposed fines. Chair McGuire said that there is no question that the wellness courts are working, and therefore she asked whether MADD would support tying the newly generated funding from HB of drunk driving fatalities per capita]. She highlighted that the aforementioned change has occurred over the last three years. MS. CASHEN informed the committee that she is a recovering alcoholic with over seven-and-a-half years of sobriety. In order for an alcoholic who is also a chronic drunk driver to finally realize he or she has an issue, that person has to reach the bottom, which is at a different spot for each individual. She related that many of the alcoholics with which she has spoken have said that they reached the bottom due to financial sanctions such as those proposed today. REPRESENTATIVE GARA agreed that reaching the bottom is personal, as is the appropriate sentence for an individual person. He suggested that a $40,000 fine against someone who makes $90,000 a year makes more sense than a $40,000 fine on someone who makes $10,000 a year and has a family to care for. Representative Gara opined that justice should be individualized. He pointed out that MADD has done a good job convincing people that sentences have been too light in the past. He suggested that perhaps the fines don't need to be reviewed [and increased] so severely if the jail time has increased, which might bring someone to the bottom more quickly than a $40,000 fine. MS. CASHEN said that it has been some time since there was an increase in the jail time due to the cost the state's correctional system. She explained that MADD is trying to look at a comprehensive program for the high-risk driver, and what is being reviewed is sanctions, which serve as a deterrent. If [fines] deter someone from drinking and driving and killing someone, then the state will save hundreds of thousands of dollars. MS. CASHEN, in response to Representative Anderson, reiterated her belief that fines will deter individuals from driving drunk. Number 1019 CHAIR McGUIRE mentioned that even with other sections of the criminal code, the deterrent argument is always raised, but another aspect of sentencing is that it is also punitive. She remarked that she believes the suggestion of a sliding scale is a good one and has been done in other states. REPRESENTATIVE GRUENBERG opined that the problem of drunk driving will never cease. This legislation is one, but not the only, approach to solving this problem. Although the criminal system is used as a means of enforcement and it offers some recompense to society, with the civil system there's a lower standard of proof and the injured victim receives recompense. Representative Gruenberg recommended that one should consider various ways of solving the problem [in order to get to] the best solution. Number 1178 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration (DOA), related that public defenders recognize that DUI is a serious problem in Alaska. She acknowledged all the efforts by the legislature to make some changes in this area. She pointed out that the statutes in this legislation have been changed numerous times over the past few years. Currently, a first-time offender receives a mandatory jail sentence of three days and a mandatory minimum fine of $1,500 and the individual's license is revoked for 90 days. Furthermore, those in prison face a surcharge, which can't be higher than $10,000, for the cost of imprisonment. Moreover, there is a conviction surcharge of $75 and the individual may very well lose his/her permanent fund dividend. The individual will have to do some alcohol treatment. This particular legislation raises some concerns because it will likely cause there to be more trials if people are disputing the BAC levels. Page 4 of the legislation says that the [BAC] level will be determined by the trier of fact. In some cases, the BAC level won't be addressed if it's over .08 because the higher level may not matter and the issue may then be with regard to whether the individual is driving or not. Therefore, she predicted that there would be more effort put into establishing or contesting the BAC level when an individual is in the "fringe" area. MS. WILSON remarked that there is a possibility that this legislation will be challenged on an equal protection basis. For example, if it's a second misdemeanor offense, the current mandatory minimum fine is $3,000 and quadrupling that would result in a mandatory fine of $12,000. The amount of $12,000 is over the maximum fine allowable for a class A misdemeanor and thus the convicted individual will be pulled out of the class in which he or she is convicted and be treated differently than others in that class of offense. MS. WILSON turned to the benefits of putting money toward treatment versus imposing more penalties. With all the recent changes related to DUIs, she suggested that it would be helpful to wait and see what the benefits would be before drastically raising fines. She reminded the committee that the PDA basically represent the poor. When the fines are doubled or quadrupled in an offense that is already experiencing heightened penalties, people may not seek treatment because of a lack of funds. Ms. Wilson suggested that perhaps the committee could review making more incentives for people to obtain treatment rather than imposing more penalties. CHAIR McGUIRE reiterated her earlier comments regarding using some of the funds from fines to fund wellness courts. Number 1433 REPRESENTATIVE SAMUELS remarked that he believes that one wouldn't see the same fatalities when the BAC is .08 versus when the BAC is .28. He acknowledged that he didn't know whether fining someone $40,000 would help. However, he expressed concern that there are still those individuals who have been in rehabilitation six times and jail didn't work. REPRESENTATIVE GARA agreed, adding that that is why he mentioned individualized justice points. Representative Gara asked if Ms. Wilson would be able to provide the committee with a summary of the changes in the fines over the last five years. MS. WILSON agreed to do so. [HB ADJOURNMENT Number 1523 There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 3:15 p.m.

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