Legislature(2003 - 2004)
03/24/2004 01:15 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
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 24, 2004
1:15 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 BILL NO. 244
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 517
"An Act relating to registration in beneficiary form of certain
security accounts, including certain reinvestment, investment
management, and custody accounts."
- MOVED HB 517 OUT OF COMMITTEE
HOUSE BILL NO. 533
"An Act relating to the state's administrative procedures and to
judicial oversight of administrative matters."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 244
SHORT TITLE: CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
04/04/03 (H) READ THE FIRST TIME - REFERRALS
04/04/03 (H) JUD, FIN
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (H) Heard & Held
04/14/03 (H) MINUTE(JUD)
04/25/03 (H) JUD AT 1:00 PM CAPITOL 120
04/25/03 (H) -- Meeting Postponed --
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
05/08/03 (H) Heard & Held
05/08/03 (H) MINUTE(JUD)
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (H) Moved CSHB 244(JUD) Out of Committee
05/09/03 (H) MINUTE(JUD)
05/12/03 (H) JUD RPT CS(JUD) NT 1DP 1DNP 4NR
05/12/03 (H) DP: SAMUELS; DNP: GARA; NR: HOLM,
05/12/03 (H) OGG, GRUENBERG, MCGUIRE
05/13/03 (H) FIN AT 1:30 PM HOUSE FINANCE 519
05/13/03 (H) -- Meeting Canceled --
05/14/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/14/03 (H) Heard & Held
05/14/03 (H) MINUTE(FIN)
05/15/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/15/03 (H) Moved CSHB 244(JUD) Out of Committee
05/15/03 (H) MINUTE(FIN)
05/15/03 (H) FIN RPT CS(JUD) NT 2DNP 4NR 4AM
05/15/03 (H) DNP: KERTTULA, FOSTER; NR: MOSES,
05/15/03 (H) CHENAULT, HARRIS, WILLIAMS; AM: HAWKER,
05/15/03 (H) STOLTZE, BERKOWITZ, WHITAKER
05/15/03 (H) RETURNED TO JUD COMMITTEE
05/15/03 (H) IN JUDICIARY
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
03/19/04 (H) Heard & Held
03/19/04 (H) MINUTE(JUD)
03/24/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 517
SHORT TITLE: SECURITY ACCOUNT BENEFICIARY DESIGNATION
SPONSOR(S): LABOR & COMMERCE
02/23/04 (H) READ THE FIRST TIME - REFERRALS
02/23/04 (H) L&C, JUD
03/01/04 (H) L&C AT 3:15 PM CAPITOL 17
03/01/04 (H) Moved Out of Committee
03/01/04 (H) MINUTE(L&C)
03/03/04 (H) L&C RPT 4DP 1NR
03/03/04 (H) DP: LYNN, ROKEBERG, DAHLSTROM, GATTO;
03/03/04 (H) NR: CRAWFORD
03/24/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 533
SHORT TITLE: IF UNREAS. AGENCY DELAY, COURT DECIDES
SPONSOR(S): STATE AFFAIRS
03/08/04 (H) READ THE FIRST TIME - REFERRALS
03/08/04 (H) JUD, FIN
03/24/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SUSAN A. PARKES, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Presented the proposed CS for HB 244 on
behalf of the administration.
ALLEN STOREY, Lieutenant
Central Office
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of Sections 1-7 and
12, and the self-defense provisions of the proposed CS for HB
244, and responded to questions.
SIDNEY K. BILLINGSLEA, Attorney
Alaska Academy of Trial Lawyers (AATL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 244, relayed her
concerns about Sections 8-9 and 12, and the self-defense
provisions of the proposed CS, and responded to questions.
MARIBETH CONWAY, Trust Manager
Wells Fargo
(Address not provided)
POSITION STATEMENT: Assisted with the presentation of HB 517
and responded to questions.
REPRESENTATIVE BRUCE WEYHRAUCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As chair of the House State Affairs
Standing Committee, sponsor of HB 533, explained the changes
encompassed in Version D.
DAVID STANCLIFF, Staff
to Senator Gene Therriault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke on behalf of Senator Therriault, the
sponsor of SB 333, companion bill to HB 533.
JAN DeYOUNG, Assistant Attorney General
Labor and State Affairs Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Expressed concerns with HB 533.
ACTION NARRATIVE
TAPE 04-46, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:15 p.m. Representatives
McGuire, Holm, Ogg, Samuels, and Gara were present at the call
to order. Representatives Anderson and Gruenberg arrived as the
meeting was in progress.
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
Number 0085
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 244, "An Act relating to the Code of Criminal
Procedure; relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to rights of
prisoners after arrest; relating to discovery, immunity from
prosecution, notice of defenses, admissibility of certain
evidence, and right to representation in criminal proceedings;
relating to sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure, and Rules
404, 412, 609, and 803, Alaska Rules of Evidence; and providing
for an effective date."
[Before the committee, adopted as a work draft on 3/19/04, was a
proposed committee substitute (CS) labeled 04-0033, 1/16/2004.]
Number 0092
SUSAN A. PARKES, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), reminded members
that at the last hearing on HB 244, she'd began her presentation
by pointing out the similarities between the proposed CS and the
version that was reported from the House Judiciary Standing
Committee last year. Today, she indicated, she would begin by
speaking about the new bootlegging provisions, Sections 1-4,
which propose to give some additional power to local communities
with regard to setting bootlegging standards. Currently,
statute allows for a local option: a community can say that if
one possess more than a certain amount of alcohol, then one is
presumed to be possessing it for sale as opposed to possessing
it for personal consumption. There are communities that have
chosen to have a lower limit than that which is set in statute,
but nothing under current statute allows recognition or
enforcement of that choice. Sections 1-4 of the proposed CS
would allow the state to recognize and enforce more restrictive
local options when such are chosen by municipalities and
established villages.
MS. PARKES turned attention to Sections 6-7. She said that
these sections propose to strengthen the state's bootlegging
statutes by amending the forfeiture provisions such that "money,
securities, negotiable instruments, or other things of value
used in financial transactions" that are derived from the
bootlegging activity could also be subject to forfeiture. She
noted that these items are currently subject to forfeiture in
drug cases, and so the proposed CS simply adds similar language
to the statute pertaining to bootlegging. In response to
questions, she explained that for the purpose of forfeiture,
there must be a nexus between the money being forfeited and the
bootlegging activity, and that a hearing for the purpose of
establishing that nexus would be required.
REPRESENTATIVE GRUENBERG raised the question of whether the
term, "cash equivalents" ought to be used.
MS. PARKES offered her belief that the proposed CS is drafted
broadly enough to include future changes in the way financial
transactions occur.
REPRESENTATIVE OGG said he would like to know what the sequence
of events would be with regard to forfeiture, for example, in a
bootlegging situation involving an aircraft.
Number 0566
MS. PARKES surmised that it is probably similar to the current
process regarding felony driving under the influence (DUI)
crimes. In such cases, the vehicle is seized at the time of the
arrest; there is a process set up for "bonding it out," as well
as ways to protect "innocent third parties." She suggested that
a representative from the Alaska State Troopers could better
explain the forfeiture procedure.
REPRESENTATIVE OGG asked whether there is any evidence that
forfeitures and seizures really do act as deterrents.
MS. PARKES said she is unaware of any specific research being
done on that issue, but offered her belief that word of such a
forfeiture provision can spread quickly in small communities,
and so that kind of a provision could perhaps become a
deterrent.
REPRESENTATIVE GRUENBERG turned attention back to Section 1,
proposed subsections (c)(1) and (2). He noted that subsection
(c)(1) uses the past tense, whereas subsection (c)(2) uses the
present tense. He asked whether this is intentional or whether
a conforming amendment might be needed.
MS. PARKES said she would research that issue.
MS. PARKES then turned attention to Section 5, which, she
relayed, is a new provision that proposes to add a new paragraph
(3) to AS 04.16.051. Currently, providing alcohol to a minor is
considered a class A misdemeanor, though there are certain
circumstances in which such an action would become a felony, for
example, if the person has a prior conviction for the same
offense or if, after being provided the alcohol, the minor
causes serious physical injury or death to another person while
under the influence of that alcohol. Paragraph (3) proposes to
add another circumstance under which providing alcohol to a
minor would be considered a felony: if the violation occurs
within the boundaries of a municipality or the perimeter of an
established village that has adopted a local option under AS
04.11.491. She said the intent is to recognize that it's a more
serious offense to provide alcohol to a minor in a village or
area that has adopted a local option.
Number 0925
MS. PARKES turned attention to Section 12, and said this section
proposes to establish a new crime - violation of custodian's
duty. Currently under the bail statutes, judges can release
[defendant] on bail if he/she has a third-party custodian.
Section 12 says that if someone agrees to be a third-party
custodian and then fails to fulfill those duties, he/she can be
charged with a class A misdemeanor if the released person is
charged with a felony, or with a class B misdemeanor if the
released person is charged with a misdemeanor.
MS. PARKES, in response to a question, said that currently,
someone who fails to fulfill the duties of a third-party
custodian can be charged with criminal contempt, which, she
opined, is cumbersome. She offered her belief that Section 12
will provide "a cleaner way" to prosecute cases in which someone
fails to fulfill the duties of a third-party custodian. She
added:
The other purpose of putting it in Title 11 is, we're
trying to flag some of these [third-party custodians]
who don't fulfill their duties. So if they come up
years from now proposing to be a third-party
[custodian] in another case, ... that flags it for us;
we can know to take a look at that person to question
whether maybe there's a problem with them being a
third-party [custodian].
REPRESENTATIVE GARA relayed that although he does not have a
problem with "that," he does have a broader concern "that a
prosecutor who has a particular personal problem with a third-
party custodian might retaliate against that person by ...
seeking a dual charge, by using this statute and then using
criminal contempt on top of that." He said he'd like to make
sure that a person could only be charged under one criminal
statute.
MS. PARKES offered her belief that Representative Gara's concern
"would be covered by double jeopardy," adding, "you can't be
prosecuted twice for the same conduct, so whether you call it a
different crime, if it's the same conduct, you can't be
prosecuted twice."
Number 1086
REPRESENTATIVE GARA responded:
But ... I'm thinking of people who commit a crime but
it leads to ... many different counts, and I think if
there is a different element to the behavior that is
reflected in one count, as opposed to the other, then
you could possibly be charged under two statutes. And
I'm thinking the contempt charge might focus on the
violation of something that the judge told the person
to do when they became a third-party custodian that
might be different than the failure to immediately
report in Section 12.
... I don't think in a normal circumstance a
prosecutor would try to prosecute somebody for both
this new charge and criminal contempt, but ... I've
seen enough cases where I think sometimes people cross
the line, and I guess I wouldn't like to see somebody
try to use the contempt charge on top of this. If
this is what we're going to do, I think this is what
we should do. Would there be a way to reword this to
make sure that the criminal contempt charge couldn't
be piled on top of this charge?
MS. PARKES said she would give that issue some thought, but
remarked that it has not been her experience that prosecutors
would do "that." She added that one of the reasons for
proposing the language in Section 12 is that prosecutors are
loath to try to use the criminal contempt charge because "it's a
difficult statute," and offered her belief that "they would
merge if they were both brought for the same conduct."
REPRESENTATIVE GRUENBERG said he has problems with the way
Section 12 is drafted, one problem being that it doesn't require
that the person knowingly fail to report. A person might very
well violate a condition of release that is unknown to the
third-party custodian; for example, "let's say somebody is in my
custody and one of the conditions ... is [that] you can't use an
illegal substance, and they're out at work or something and ...
smoke ... marijuana ... - I wouldn't necessarily know about
that." He indicated that he would be offering an amendment
later to ensure that the third-party custodian "knowingly"
failed to report, or "failed to report something that they know
about."
Number 1223
MS. PARKES offered her belief that under Title 11, if a mental
state is not specified in a statute, it is presumed to be
"knowingly"; thus "knowingly" would be read into this provision.
REPRESENTATIVE GRUENBERG concurred that such is "a general
statute," but opined that "it ought to be put into ... here so
that there is no question" and it can't be misinterpreted. He
then raised the issue of perhaps creating a class C misdemeanor
for a third-party custodian of someone who is only charged with
a class B misdemeanor, and suggested that the maximum someone
could be jailed for a class C misdemeanor would be 30 days.
MS. PARKES, in response to a question about the mental state of
"knowingly", said that one can't report something that one is
unaware of; for example, if the released person sneaks out of
the house while the third-party custodian is sleeping, the
custodian couldn't report that disappearance until he/she
becomes aware of it.
REPRESENTATIVE OGG asked whether the term "as directed by the
court" means that the court is going to tell the third-party
custodian what circumstances and behaviors he/she is supposed to
report.
MS. PARKES said yes, adding that currently, when one becomes a
third-party custodian, he/she must sign paperwork that
specifically lists the conditions of release. In response to a
question, she said that it is her understanding that the courts
currently inform third-party custodians what the consequences
are of failing to perform the custodial duties as specified in
the release paperwork, which currently also gives notification
of possible consequences. She relayed her hope that if this
provision is adopted into law, that the DOL and the Alaska Court
System (ACS) would work together to have the paperwork
pertaining to third-party custodians altered to reference this
new crime as a possible consequence of failing to perform the
custodial duties.
Number 1455
MS. PARKES then turned attention to Section 27. She said that
currently, there is no statutory provision that would allow a
state or municipal agency, or employees of such, to disclose
information to a member of the public regarding juvenile
offenders who are a danger to the public. Currently there are
provisions for such information to be given to law enforcement,
to schools, and to other government agencies. Section 27, along
with a forthcoming amendment, is intended to allow disclosure of
information to a member of the public - if that member requests
it - regarding the adjudication of a sexual offense if it would
be used for the purpose of protecting the safety of a child or
vulnerable adult. She relayed:
Where we saw situations arising were social workers
perhaps going into homes ... and being aware that
there was a juvenile, who was perhaps babysitting for
a family, who had been adjudicated or charged with a
sex offense, and there was no provision for that
[social worker] to warn the family. We're looking for
a way for the public to be protected, potentially,
from dangerous juveniles.
MS. PARKES, in response to a question, relayed that although the
language currently in Section 27 only pertains to adjudications
of sexual offenses, the aforementioned forthcoming amendment
would broaden this provision somewhat. In response to question
about who would be entitled to this type of information, she
said:
That's one of the concerns about this; there certainly
needs to be some policy and procedures put in place on
how this would be handled, and the release of
information, and what kind of showing there would need
to be as to some child or vulnerable adult actually
being in danger. And so as to specifically how this
would be enforced, [the Department of Health and
Social Services (DHSS)] would need to come up with
regulations.
MS. PARKES then turned attention to Sections 10 and 11, which
are new provisions and which also pertain to juveniles and
sexual offenses. Currently, [sexual abuse of a minor] crimes
committed by juveniles who are 15 years old or younger are all
classified as misdemeanors. The DOL, however, feels that such
does not proportionally recognize the seriousness of certain
[sexual abuse of a minor] offenses when committed by 15-year-
olds. She elaborated:
Right now, if a 15-year-old penetrates a 3- or a 4-
year-old, it's a misdemeanor. We think that sends the
wrong message, that if you burglarize a home you
commit a felony but [if] you sexually assault a young
child it's a misdemeanor. ... Again, this will only
affect 15-year-olds and younger; these would be
provisions handled in the juvenile system. ... The
"sexual contact" provisions would remain a
misdemeanor, but it would make the penetration
offenses a [class] C felony.
Number 1699
ALLEN STOREY, Lieutenant, Central Office, Division of Alaska
State Troopers, Department of Public Safety (DPS), said he
wanted to offer the DPS's support of the proposed CS,
specifically Sections 1-4 and 6-7, positing that these
provisions will be great tools for investigators, allowing them
to increase their efforts in helping villages help themselves in
their battle against alcoholism and the effects that alcohol is
having on their lifestyles. He added that the DPS has
substantially ramped up its efforts to catch those that are
involved in bootlegging activities, and reiterated that the
aforementioned provisions will be fantastic tools for that
effort. The forfeiture provisions will bring alcohol
[bootlegging] violations into line with what has historically
been done for many years in drug cases. He noted that one of
the aforementioned provisions would allow the DPS to share some
of the seized and subsequently forfeited items with local law
enforcement agencies.
LIEUTENANT STOREY relayed that every dollar of money invested in
bootlegging can generate as much as a $15 return, sometimes
more, so there is quite a bit of incentive to engage in
bootlegging activities. Law enforcement has recently seized
several snow machines and boats, he noted, and opined that this
is having a direct impact on bootlegging behavior. He then
characterized Section 5 as a really good tool that will
hopefully have some impact with regard to breaking the cycle of
drinking in villages.
LIEUTENANT STOREY added:
It's not uncommon for us to receive direct information
that adults are giving alcohol to minors in return for
use of their snow machine or just to party with them
or whatever the dynamics of that particular
relationship are. Alcohol is freely passed from
adults to minors in these local option communities,
and we need to have some tools there to help us ...
break that cycle of generational alcoholism and
alcohol abuse, and hopefully improve the quality of
life within those communities.
Number 1863
LIEUTENANT STOREY turned attention to Section 12, regarding
third-party custodians, and characterized it as a tool that is
long overdue. He relayed that is not uncommon for a drug dealer
to be picked up by law enforcement one day, be released to a
third-party custodian, and be out on the street the next day
selling drugs again because he/she had managed to slip away from
his/her custodian. He opined that historically, third-party
custodians have not taken their responsibilities as custodians
very seriously, and offered his belief that Section 12 will
result in third-party custodians being more responsible and
exerting more control over those that have been released into
their care.
LIEUTENANT STOREY then offered his belief that the self-defense
provisions of the proposed CS are good provisions from law
enforcement's point of view. He elaborated:
It's not uncommon... [to] show up at a "sting" where a
multitude of things have happened and everybody is
pointing at everybody else and declaring self defense.
... Obviously, crimes have been committed, [but] to
try and figure out who did what to [whom] can be
incredibly complex, and this gives us the tool to
allow us to more appropriately investigate these
things. There's another provision also related to ...
co-participants in crimes ... being charged with the
death of their co-participant, and we believe that
that's a good tool, also, that will give us a good
opportunity to, again, properly ... separate ... the
bad from the good - take the criminals away from the
law-abiding people, and put them where they should
[be], that's away from society.
REPRESENTATIVE HOLM asked Lieutenant Storey to describe what the
sequence of events would be regarding forfeiture of property
related to a bootlegging offense.
LIEUTENANT STOREY, using the example of a drug bust, relayed
that law enforcement takes possession as soon as possible of any
vehicles, vessels, or aircraft involved in the crime. The
burden, at that point, is on law enforcement to maintain that
property and keep it from harm so that if it is not subsequently
forfeited, it can be returned to the owner. He pointed out that
for any illegal activity, whether drug-related or alcohol-
related, searches and seizures by law enforcement must be
conducted in a legal manner. In response to a question, he
clarified that seizure and forfeiture are two separate things;
seizure of property could very likely happen on the spot, but
actual forfeiture of that property would involve a forfeiture
proceeding - the parameters of which are outlined in statute -
that would occur later on in the process.
Number 2095
REPRESENTATIVE GRUENBERG turned members' attention back to
Section 7, which specifies what percentage a court may award
forfeited property to municipal law enforcement agencies, and
suggested that this provision might prove unconstitutional,
because of an irreconcilable conflict of interest, in much the
same way that in Toomey v. Ohio, the [U.S.] Supreme Court found
it to be unconstitutional for magistrates who heard traffic
offense cases to get paid their salary from traffic offense
fines. He opined that the amounts of forfeited property that
could be awarded to municipal law enforcement agencies under
Section 7 could create a substantial interest in the outcome of
the forfeiture proceedings.
LIEUTENANT STOREY pointed out that the language in Section 7
merely mirrors language currently in the drug statutes. He
relayed that before such language exited in the drug statutes,
local law enforcement agencies were often reluctant, because of
budgetary issues, to assist state law enforcement agencies in
the battle against drugs. He mentioned that any proceeds from
forfeitures that are not awarded to local law enforcement
agencies will end up going into the general fund (GF). He
offered his belief that awarding to municipalities proceeds from
forfeitures pertaining to drug crimes has provided an incentive
for those municipalities to help state law enforcement agencies
and themselves in doing drug enforcement. He opined that the
same would prove true regarding alcohol enforcement, and noted
that he's not yet seen any evidence that such forfeiture
provisions have been abused.
MS. PARKES added that the language in the drug statutes has not
been challenged on a constitutional basis.
REPRESENTATIVE GRUENBERG asked whether there are any statutory
protections in place for innocent co-owners or lien holders of
forfeited property.
MS. PARKES said that there are, both in the bootlegging statutes
and in the drug statutes. She then read a portion of AS
04.16.220(e) as an example of such a protection.
REPRESENTATIVE OGG asked for an example of the process used for
seizing money or negotiable instruments.
LIEUTENANT STOREY explained that there must be a direct nexus
between the money and the illegal activity. If, during a
search, any money is found, it taken into possession and
documented; the money is then held in the evidence locker until
a court order allows further processing. He, too, mentioned the
statutory protections currently in place for innocent co-owners
and/or lien holders.
TAPE 04-46, SIDE B
Number 2363
REPRESENTATIVE SAMUELS asked about the possibility of altering
Section 7 such that forfeited items could be awarded to Village
Public Safety Officer (VPSO) programs.
LIEUTENANT STOREY said that the DPS has struggled with that idea
in the past, but couldn't come up with a way to do it. He
mentioned, however, that if the DOL could come up with some
acceptable language regarding sharing forfeiture proceeds with
the VPSO programs, it could enhance the VPSO's drug and alcohol
enforcement efforts. In response to further questions, he
detailed how successfully-forfeited items, or the proceeds from
such items, get distributed either to local agencies, state
agencies, or the GF. He offered some examples of property that
gets forfeited, and noted that forfeited property, with the
exception of firearms, automatically becomes the property of the
commissioner of the Department of Administration (DOA); the DOA
is then responsible for distributing that property or its
proceeds.
REPRESENTATIVE GRUENBERG offered some remarks about lien holders
of forfeited property and possible contractual agreements
between lien holders and owners.
REPRESENTATIVE OGG, turning attention back to Representative
Gruenberg's concern that Section 7 might create a conflict of
interest, offered the suggestion that simply having all
forfeited property, and proceeds from such, go into the GF would
prevent any conflict of interest.
Number 1963
SIDNEY K. BILLINGSLEA, Attorney, Alaska Academy of Trial Lawyers
(AATL), indicated that she would be discussing the sections of
the proposed CS that she has the most concern with. She said:
The first section is Section 8, which is on page 5,
the second degree murder section, and my main concern
on that is the unintended consequences that could
result from trying a person for murder in the second
degree if one of their cohorts was killed in the
course of one of the listed felonies. The scenario
that I see happening quite commonly, that's a
potential downfall to this, is the fact that most
residential burglaries - ... one of the predicate
felonies - [occur] between the hours of 2 and 6 in the
afternoon and they're committed by young people
generally between the ages of ... 14 and ... 21. If
one of these regular sort of kids who goes to high
school and (indisc.) going to burglarize one of their
neighbor's houses, and somebody happens to be home and
is taken by surprise [and] shoots one of theses
teenagers or young adults, the other teenagers can be
charged as adults with second degree murder. I don't
think that the goal of the statute is to create
murderers out teenage burglars, but that could be one
of the unintended consequences.
The other thing that is a problem with some of the
other predicate felonies is that the government would
first have to prove, posthumously, that the decedent
was in fact a codefendant, or would have been a
codefendant if they had lived, [and] they [were] not
somebody who was merely present at the time of the
alleged offense. So, in a sense, the decedent would
have to be posthumously tried and found to be guilty
in order to prove the second degree murder charge
against the accused, against the live defendant who
would be accused, there, of second degree murder.
That doesn't make sense to me, and I think that
jurisprudence has excluded codefendants for hundreds
of years partly because of that and partly because [of
the] notion that people should take personal
responsibility for their behavior: they knowingly
engage in a crime; therefore, they shouldn't (indisc.)
of being the victim of a crime if something happens
....
Number 1823
REPRESENTATIVE GARA asked why the example Ms. Billingslea used
doesn't already warrant a charge of murder in the second degree.
MS. BILLINGSLEA relayed that under current law, if the person
who dies is one of the participants in the crime, then co-
participants are not charged with second degree murder; it is
only if someone other than a participant dies that that charge
is leveled against those who were committing the crime.
CHAIR McGUIRE concurred, and surmised that the intent of Section
8 is to say that a life is a life and if someone is killed,
regardless of whether he/she is also engaged in the crime, then
those who are committing the crime should be charged with second
degree murder. She indicated agreement with Ms. Billingslea's
point that having to prove posthumously that someone was engaged
in an illegal activity could pose practical problems.
MS. BILLINGSLEA additionally pointed out that under Section 8,
it would not just be the kids who enter the house or place of
business who could be charged with second degree murder; that
charge would also be leveled at the kids who are outside waiting
in the car even if they had no idea that the kids inside were
attempting to commit a burglary.
CHAIR McGUIRE said she agrees that there could be a problem with
regard to proving posthumously who was engaged in the crime, but
said she disagrees with the argument that what is being proposed
by Section 8 is a bad idea because it would turn a kid
attempting to commit a burglary into a murderer, since such is
already the case if the person who dies is not a participant.
MS. BILLINGSLEA acknowledged that latter point.
REPRESENTATIVE GRUENBERG suggested that the policy question
before the committee is whether, in Ms. Billingslea's example,
the kids who are waiting out in the car and who know nothing
about their friends' attempt at burglary should be held
responsible if someone dies. He proposed that the committee
reexamine current law in light of that question. He surmised
that doing so would also lead to the self-defense issues related
to gang activities. He added: "These cases, some of them are
difficult to prosecute; unfortunately, ... that's life. Some
cases are difficult to prosecute, other cases ... are difficult
to defend. But whether they are difficult to prosecute or
difficult to defend isn't the real issue; the real issue is
justice, fairness, and public policy."
Number 1524
CHAIR McGUIRE agreed, adding her belief that the "transferred
intent rules and the felony murder rules" are some of the most
difficult public policy choices that the legislature has because
somebody ends up being charged with a higher level crime than
that which he/she intended to commit. The state's current
policy, she surmised, has been to say, "Just don't engage in
these serious, dangerous types of crimes, because somebody could
get hurt."
REPRESENTATIVE GARA asked what the policy basis was for adopting
the language currently in law.
MS. BILLINGSLEA offered that it was perhaps an intention to say
that someone who is killed while engaging in felonious criminal
activity doesn't get to be a crime victim; for example, "the
homeowner that kills you isn't a murderer because he killed you
while he's defending his house," she added.
REPRESENTATIVE GRUENBERG noted that Alaska, unlike most other
states, allows the use deadly force to defend property. He
suggested that the question before the committee is whether to
punish the person in the car differently depending on who it is
that gets killed. He mentioned that he, too, would like to know
the rational behind the current law.
CHAIR McGUIRE surmised that the unknowing person waiting in the
car might well be charged as an accomplice but probably would
not be charged, or at least could argue against being charged,
with the same level of crime as the persons who enter the
building with the intention of committing a crime.
MS. PARKES agreed. If the prosecutor can't show that someone
was an active participant, whether remaining in the car or going
into the building, then the prosecutor isn't going to be able to
charge or convict that person. She said that certainly there
will be degrees of culpability, but noted that that will be
factored in during the process. In response to a question by
Representative Gara, she acknowledged that someone who is an
active participant in the commission of a crime is an accomplice
and is just as liable as the main perpetrators of the crime for
the events that unfold.
Number 1199
REPRESENTATIVE GARA offered the following scenario:
You're a conspirator, you agree to commit the crime
with all these other kids; you're in the car, your job
is, you're the getaway driver. One of the kids goes
in, they rob the home, they start running away, and
the homeowner - angry, disturbed, scared, terrified -
shoots the kid running away. Under [Section 8] ...,
the kid sitting in the car is now guilty of murder in
the second degree, right?
MS. PARKES replied:
That's correct because the homeowner isn't guilty.
The homeowner was acting lawfully, and ... the
homicide only occurred because of the conduct of those
people going and robbing and burglarizing this home.
It is their conduct that brought upon this foreseeable
consequence, which is what felony murder is based on
to begin with - it is a foreseeable consequence that
someone could die during the course of the commission
of one of these serious offenses. Right now we say
[that] if it's a non-participant, we're going to
prosecute it, [but] ... if it is a participant, we're
not. And that's where, if the logic is, it's a
foreseeable consequence someone's going to die, isn't
[it] just as foreseeable [that] the homeowner's going
to be quicker on the trigger than the bad guy?
REPRESENTATIVE GARA remarked:
I have no problem with charging somebody with murder
if they're in this tense situation and the homeowner
ends up getting off the first shot; I don't have a
problem with that. ... I do have a problem with the
[situation of] then the people leaving the scene of
the crime - no longer a present danger to anybody -
and then somebody deciding to blow away the kid
anyway, like we had with the case of those kids who
committed the prank at that car dealership on 15th
Avenue in Anchorage a number of years ago. It was the
property owner and he shot the kids in the back. ...
MS. PARKES relayed that that man was prosecuted.
Number 1052
REPRESENTATIVE GARA asked whether Section 8 as currently written
would allow a homeowner to shoot someone who is no longer a
threat, for example, someone who is leaving the property.
"Under this [proposed] statute, the kids have committed robbery
in the second degree and a ... killing has occurred, so isn't
... the kid sitting in the car, the getaway driver, still guilty
of murder in the second degree when the property owner shoots
the fleeing kid in the back?" he asked.
MS. PARKES replied:
An unlawful killing by the homeowner - you know,
they're chasing them down the street - ... it's a
separate crime, and ... I see your concern and I'd
have to take a look at it and think about your factual
scenario ...
CHAIR McGUIRE interjected to say that what they did not want to
have happen is for someone to use deadly force on a person who
is running away and then claim self defense. She observed that
that issue ought to be researched to see whether the language in
Section 8 needs to be clarified to that effect.
REPRESENTATIVE GARA indicated that he would do so.
REPRESENTATIVE SAMUELS surmised that whether or not the driver
in the hypothetical example actually knew what was going on
would be a matter for the jury to determine.
MS. PARKES replied: "Absolutely; we would have to prove beyond
a reasonable doubt that that person knew that's what was going
to happen."
REPRESENTATIVE OGG opined that if someone does something of
his/her own volition, then that person is responsible for what
occurs.
Number 0719
REPRESENTATIVE GRUENBERG asked whether someone who provides
burglary tools to a person who later gets killed while
committing a burglary would be charged with murder in the second
degree. He then asked whether they should make a distinction
between armed and unarmed participants.
CHAIR McGUIRE, in response to the latter question, opined that
because they live in Alaska, it should just be assumed that
everyone is armed.
MS. PARKES, in response to the former question, said no, adding
that the person has to either commit the offense or attempt to
commit the offense.
MS. BILLINGSLEA, after remarking that Section 8 appears to still
need some work, turned attention to Section 9 of the proposed
CS, and said:
The major issue I take with making a ... criminally
negligent act a felonious act is that our [Alaska]
Supreme Court has said that the difference between
civil and criminal negligence, quote, "while not
major, is distinct." And what it comes down to is
whether or not an act is a gross deviation from the
standard of care and [whether] that gross deviation is
something more than the slight degree of negligence
required for civil torts. A really good discussion of
criminal negligence comes from the Hazelwood case that
you may be familiar with from our [Alaska] Supreme
Court in 1997, and I think that would be instructive
for the committee to review. Negligence is
essentially carelessness, and criminal negligence is,
quote, "something more than carelessness but it
doesn't require a guilty mind," and felonies are
serious crimes.
So it seems to be that if you convict somebody of a
serious crime with an equally serious level of
criminal intent, it probably violates our due process
clause. I ... think Alaska's due process clause
requires ... that society's interest in obtaining
compliance with [this law] not outweigh an
individual's interest in freedom from substantial
punishment if that person couldn't reasonably be
expected to avoid the violation. And I know that
sounds complex, but let me throw something out
hypothetically. So the dangerous instrument is
anything, and could be snow machines, snowboards,
skis, cars. You could have an individual who had a
few drinks at the top of Alyeska, or even a couple of
drinks at the top Alyeska, and skis or snowboards down
and hurts somebody, causes serious physical injury as
defined by statute - which isn't that great ... a
standard to prove, it's physical injury that's
protracted - they could be charged with a felony.
Number 0501
And I'm not sure that the committee wants that to
happen in Alaska. There's carelessness that is
assault in the fourth degree, that causes physical
injury, and I think that that's sufficient for our
purposes. So having said that I'll move on to my next
problematic section that I'm focusing on, which is
Section 12 on page 7 about criminalizing third-party
custodians. I don't know what the fiscal ... note on
this bill is, but I can tell you [that] criminalizing
the failure of third-party custodians to do their duty
to report violations of bail - which is now a contempt
of court [and] which is punishable by fines and/or
jail depending on the level of contempt - will have
the effect of reducing the number of volunteers to be
third-party custodians.
MS. BILLINGSLEA continued:
Alaska, Anchorage in particular, is addicted to third-
party custodians for conditions of bail release.
We'll have fewer people out of jail on pretrial
release, [and that] would raise the cost of
incarcerating people. I can tell you that both jails
are full and they have "boats" in the rooms now -
boats are those plastic sleds that people sleep in;
they're sleeping four, five, and six to a room right
now [in a] brand new jail. And if you prosecute
people for violating ... third-party custodian duties
under criminal law, you may actually be incarcerating
more people. So this is not a freebee. I don't think
the system is broken right now; I'm not sure that
there's a need to fix [it]. I don't know where this
idea came from. I don't know why people need to
criminalize more and more behavior by people who are
essentially no-criminal-record volunteers [getting]
people out [of] jail, essentially, doing the court
system a favor. So it's nuts to me - that section is
nuts. ...
Number 0353
Self defense is the last issue ... and I just want to
briefly say that it does tie in, to a degree, with the
felony murder section that we talked about [earlier].
... I've been practicing criminal law up here since
1986 [and] I've been a lawyer since 1984. I see what
the State of Alaska prosecutes [and] I see what they
screen out; ... I represent people before they've been
charged with crimes formally, [and] represent them,
certainly, after. ... What [Chair McGuire] said
earlier about Alaska being a place where you can
assume everybody is armed, you know, we're all
citizens; everybody in this state is a citizen, and
that's the first thing that we need to not lose sight
of.
We're all entitled to equal protection of the laws,
we're all entitled to the right to self defense, and
we're all aware that this is a dangerous society.
Some of us live closer to the front lines than others;
some of us who make these laws live in the back, in
the rear, but we're aware, from our observation and
[from] the fact that we actually pass laws that permit
people to carry firearms in ever-growing quantities,
that it's dangerous. It's not a good idea, in my
opinion, to carve out a group of citizens and deprive
them of a right to defend themselves when, in fact,
they live on the front lines of this dangerous
society.
MS. BILLINGSLEA concluded:
... I think that the question of whether ...
reasonable self defense occurs in a case should be
left to ... other citizens sitting on a jury, and if a
person has reasonably defended himself and that's
proved - that is, not disproved beyond a reasonable
doubt - then they'll be acquitted. If they can't
produce some evidence - as our standard now - that
they defended themselves in a reasonable way, they'll
be convicted. Depriving the alleged gangsters and the
alleged drug dealers - or the people who want to be
gangsters [or] who might want to be drug dealers - of
the right to self defense is not an equal protection.
And that's what I have to say. Thank you.
CHAIR McGUIRE thanked Ms. Billingslea for her comments.
REPRESENTATIVE GARA, turning attention back to Section 8, said
that there is only one possible circumstance that he has concern
about, that being if the homeowner shoots a participant in the
back and the other participants are charged with second degree
murder. He suggested amending Section 8 such that it would
apply unless the killing was the result of illegal conduct by a
non-participant.
MS. BILLINGSLEA offered her recollection, however, of a case
wherein a homeowner shot a burglar in the back as the burglar
was fleeing the house. The burglar, a young man, was killed,
but the homeowner was not prosecuted. She said, "You would have
to prove that his behavior was illegal over [vociferous self
defense and defense of property claims.] [The previously
bracketed portion was not on tape but was taken from the Gavel
to Gavel recording on the Internet.]
TAPE 04-47, SIDE A
Number 0001
MS. BILLINGSLEA continued: "I'm not sure that you can carve out
a sufficient amendment for that. It would add extra elements to
the crime; it would be sort of like the hearsay rule where the
exceptions consume the rule."
REPRESENTATIVE GARA said he is comfortable with the concept of
applying a charge of murder in the second degree when someone
creates an array of circumstances that are somewhat foreseeable.
He remarked, however, "Except I draw the line at: it's not
foreseeable for, then, somebody else not related to you to then
go commit a crime, an illegal act, that [you then] get held
responsible for."
MS. BILLINGSLEA mentioned that foreseeability is usually
confined to conspiracy statutes, and pointed out that there is
no foreseeability clause in the statute pertaining to murder in
the second degree.
CHAIR McGUIRE asked interested parties to fax written comments
to the committee and relayed that HB 244 would be held over.
[Following was a brief discussion regarding when the bill would
be heard next, who had provided the proposed amendments
currently in members' packets, and what form further proposed
amendments should take.]
HB 517 - SECURITY ACCOUNT BENEFICIARY DESIGNATION
Number 0425
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 517, "An Act relating to registration in
beneficiary form of certain security accounts, including certain
reinvestment, investment management, and custody accounts."
REPRESENTATIVE ANDERSON, speaking as the chair of the House
Labor and Commerce Standing Committee, sponsor of HB 517,
relayed that the bill will permit an investment management or
custody account with a trust company, or a trust division of a
bank with trust powers, to have a beneficiary designation take
effect upon the death of the owner. Under current law,
securities and brokerage accounts may have beneficiary
designations take effect upon the death of the owner pursuant to
the Uniform Transfer-On-Death Security Registration Act.
However, the current definition in Alaska statutes regarding
security accounts is not broad enough to include investment
management or custody accounts, which are generally used by
trust departments.
REPRESENTATIVE ANDERSON relayed that HB 517 comes at the request
of Wells Fargo and will allow all of "these products" to avoid
probate by providing statutory authorization to use a
beneficiary designation. The bill will also put banks' trust
departments on an equal footing with brokerage firms. The
problem cannot be solved other than by statute, he opined, and
noted that several states have enacted similar legislation in
the last three years, including California, Idaho, Iowa,
Minnesota, and Washington. He mentioned that members' packets
contain a letter of support from Wells Fargo.
Number 0580
MARIBETH CONWAY, Trust Manager, Wells Fargo, offered her belief
that HB 517 is a simple technical change to Alaska's current
transfer on death (TOD) law. Current Alaska law, which was
initially drafted as a uniform state law, focuses on accounts
offered by brokerages and other financial institutions because
it is generally assumed that bank accounts fall under another
statute. However, banks' trust departments and trust companies
do have investment management and custody accounts that are not
included in the current statutory definition of security
accounts. Consequently, security and brokerage accounts can
have a specified beneficiary designation that takes effect upon
the death of the owner - the form used is very similar to the
beneficiary designation form used for life insurance policies or
individual retirement accounts (IRAs) - allowing probate to be
avoided, but investment management accounts and custody accounts
offered by banks do not yet have this flexibility.
MS. CONWAY remarked that customers of banks, however, expect
that investment management accounts and custody accounts would
be handled the same way as similar accounts are treated in
brokerage firms, and HB 517 would, in fact, make this possible.
Without passage of the bill, investment management accounts and
custody accounts, whether in a trust company or in a trust
division of a bank, must go through probate. House Bill 517
allows for very simple treatment of beneficiary designations,
clarifies the definition of security account, and puts the same
types of accounts held in different companies on equal footing
with regard to transfers on death. She mentioned that similar
changes have recently been enacted in other states, that the
changes appear to be non-controversial, and that no one has
experienced problems with the changes. For these reasons, she
remarked, Wells Fargo would appreciate the committee's support
in passing HB 517.
MS. CONWAY, in response to questions, relayed that it is very
common for individuals to have investment management accounts
through Wells Fargo's trust department even though such accounts
are not specifically trust accounts; the same can be done via a
trust company, and these accounts are similar to ones that can
be arranged through brokerage firms, which currently have forms
that allow for beneficiary designations to take effect upon
death of the account owners.
Number 0901
REPRESENTATIVE GRUENBERG turned attention to AS 13.33.310(b)(3),
which uses the term "LDPS." He asked what "LDPS" stands for.
MS. CONWAY said she was not sure.
REPRESENTATIVE GRUENBERG asked whether the bill "just puts bank-
managed accounts on the same footing as brokerage-managed
accounts."
MS. CONWAY said that is correct. In response to another
question, she offered her recollection that the model Act was
adopted in whole, for the most part, in Alaska.
REPRESENTATIVE GRUENBERG turned attention to page 2, lines 8 and
20, and asked what would be considered "cash equivalents".
MS. CONWAY offered as an example a money market investment fund.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 517.
REPRESENTATIVE ANDERSON, in response to a question, reiterated
his earlier comments regarding the perceived need for the bill.
REPRESENTATIVE GARA noted that the bill is only a definition
section.
REPRESENTATIVE GRUENBERG offered that it is a definition section
for the Uniform Transfer-On-Death Security Registration Act,
which allows one to simplify a transfer at the time of death and
avoid probate by setting up either a "pay on death (POD)"
account or a "transfer on death (TOD)" account. He mentioned
that a POD usually pertains to money, whereas a TOD usually
pertains to securities. Such accounts are simple ways of
ensuring that upon the death of the owner, the assets are passed
on to the beneficiary or beneficiaries without the need for
probate.
Number 1297
REPRESENTATIVE GARA moved to report HB 517 out of committee with
individual recommendations and the accompanying zero fiscal
[note]. There being no objection, HB 517 was reported from the
House Judiciary Standing Committee.
HB 533 - IF UNREAS. AGENCY DELAY, COURT DECIDES
Number 1326
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 533, "An Act relating to the state's
administrative procedures and to judicial oversight of
administrative matters."
Number 1368
REPRESENTATIVE SAMUELS moved to adopt the proposed committee
substitute (CS) for HB 533, Version 23-LS1833\D, Bannister,
3/24/04, as the work draft. There being no objection, Version D
was before the committee.
Number 1381
REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature, as
chair of the House State Affairs Standing Committee, sponsor of
HB 533, reviewed the changes encompassed in Version D. On page
2, line 12, the word ["significant" is replaced by the word
"immediate"], and the sentence on page 2, lines 14-16, was
added. Representative Weyhrauch explained that for those
individuals who come before an administrative law judge, the
decision is under advisement for some time, occasionally for
years or even decades. This can be quite frustrating for those
individuals who have a permit or decision pending within the
purview of an agency hearing officer but no decision has been
reached. This legislation would allow the individual in the
aforementioned situation to ask the court to either enjoin the
agency to issue a decision sooner rather than later or take some
other remedial step to that effect.
REPRESENTATIVE WEYHRAUCH pointed out that HB 533requires that
the individual notify the agency that if the agency doesn't
"move," then it will be taken to court. The individual will
request a reason why no ruling is being made. Representative
Weyhrauch posed a situation in which an individual has "a simple
summary judgment action." An opposition and a reply is filed,
and the court then holds oral arguments. At that point, the
case is taken under advisement and the record is closed. Six
months from the day the case is under advisement, the court has
to rule or its checks are withheld. Although delays don't
happen in every case, it's frustrating to the public when they
do.
CHAIR McGUIRE inquired as to the case in which the petitioner
continues to file appeals to delay the process because it's not
to the petitioner's benefit to obtain an ultimate result.
REPRESENTATIVE WEYHRAUCH acknowledged that there are instances
in which someone would file appeal and that individual wants a
delay and doesn't want a decision to ever be issued. Those
individuals don't have to act under this legislation. "There's
no requirement that they repair to a court to force a decision
maker of an agency," he clarified. With respect to the
Commercial Fisheries Entry Commission (CFEC), the longer the
pending permit is under advisement, the longer the person has an
interim permit and the longer that person can continue to fish.
Therefore, it's in the interest of someone with zero points on
his/her permit to draw out the case. Representative Weyhrauch
reiterated that this legislation doesn't require that the CFEC
drag out a decision, rather it's a remedy in cases that are
where that is occurring.
REPRESENTATIVE SAMUELS offered his belief that in the supreme
court, if one justice can't make a decision within six months,
the case is passed to the next justice.
REPRESENTATIVE WEYHRAUCH said that from everything he has heard,
the [judiciary] is trying its best to put forth decisions in a
timely manner.
Number 1746
REPRESENTATIVE GRUENBERG referred to AS 22.05.140, which says
that a judge may not receive a salary warrant until an affidavit
is signed specifying that no opinion or decision has been
uncompleted or undecided by the justice for a period of more
than six months. In the supreme court or the court of appeals,
which are multi-judge courts, this means that there must be an
opinion circulating within the [six-month] period.
Representative Gruenberg said he believes that [withholding
checks until opinions or decisions are completed or decided]
works.
REPRESENTATIVE SAMUELS pointed out that there are justices with
work that is over six months old, but who have signed the
affidavit and received payment. For those cases, there is no
remedy.
REPRESENTATIVE GRUENBERG opined that the remedy would be with
the Commission on Judicial Conduct because that's filing a false
affidavit, which is against the judicial tenets.
REPRESENTATIVE GARA agreed that there are times when the judges
have waited too long to issue opinions. However, one must keep
in mind that these judges have numerous opinions before them to
decide. He suggested that the committee hear from the Alaska
Court System (ACS) on this issue.
REPRESENTATIVE GARA said he believes the legislation is a good
idea, although he has a couple of concerns. He pointed out that
once the right of unreasonable delay is created, very
sophisticated parties are going to try to use this in the
administrative process. In order to prevent abuse of the
process, Representative Gara suggested the sponsor exempt
corporate tax and oil revenue cases from the legislation
because, in a billion-dollar case, the parties will attempt to
find any possible advantage in order to avoid or delay paying.
Representative Gara recalled a case involving the Amerada Hess
Corporation, which was a multibillion-dollar case in which
parties on both sides did everything possible to obtain an
advantage, and said he didn't want to see this happen under HB
533.
Number 1929
REPRESENTATIVE GARA predicted that once this legislation passes,
many of these motions will be filed in superior court. He
predicted that. If this is allowed too liberally, it could
delay the court process further. He asked whether the
"unreasonable delay" language could be maintained with
additional language specifying a minimal amount of time [that
would have to pass] before the relief in court could be filed.
REPRESENTATIVE WEYHRAUCH indicated that the timeline should be
on a case-by-case basis. Furthermore, having exemptions will
make it difficult to establish a state policy with regard to
which agencies should issue decisions quickly.
REPRESENTATIVE GARA acknowledged that perhaps such language
isn't necessary. He noted that a provision [in Version D]
allows one to request an alternative dispute-resolution process
in superior court.
REPRESENTATIVE WEYHRAUCH clarified that the intent of the
legislation is to provide a method by which to force an agency
to issue a decision once it has been pending for an unreasonable
time. He went on to say:
I think that the key point here is ... the judicial
inquiry that's going to have to take place in this
kind of thing. When was the case filed before an
administrative agency; how complex was the record; how
long has the case been under advisement; is this the
best forum to re-litigate this case ...; or do we need
time for the administrative agency to cook on this;
and let's hear from the agency, on some sort of
affidavit, that they're diligently working on this.
[The judge will say], "I'm going ... to deny this and
I'm going to put ... the case under advisement for six
months from today, and I want a notice from the
parties [regarding where the case is at that point; If
it's still ... being delayed at that point, then we'll
have another hearing in this court ... to hear from
the agency and the parties about the delay, and then
I'll make a decision at that point."
So I think it's in the reasonable discretion of the
superior court judge not to clutter the calendar with
these kind of agency appeals, but to ... [let] the
agency act on these kind of appeals [in] ... a
relatively timely way .... I think that every
reasonable judge knows that these agencies are going
to have some backlog of cases to deal with, just like
they do.
REPRESENTATIVE OGG remarked that this provides a nice escape
valve. He further remarked that he wishes there was a way to
urge the federal judiciary to such quick action.
REPRESENTATIVE WEYHRAUCH said he has worked with administrative
agencies who say they can't help and specify that the agency has
to be asked for an expedited decision, but that doesn't go
anywhere. He concluded by stating that he agrees with
Representative Ogg.
CHAIR McGUIRE recalled dealing with the regulations surrounding
shellfish farming. In 1984, the Aquatic Farm Act was adopted;
it made it clear that aquatic farming was allowed so long as
certain criteria were met. However, in 2002, some issues were
still not resolved. Chair McGuire characterized [HB 533] as a
good tool, but said she hopes that it doesn't have to be used
often.
Number 2324
DAVID STANCLIFF, Staff to Senator Gene Therriault, Alaska State
Legislature, on behalf of Senator Therriault, the sponsor of SB
333, companion bill to HB 533, informed the committee that he
has some statistics that might provide some comfort. He pointed
out that [the legislation] is building standards with regard to
a reasonable timeframe in order to provide guidance to the
courts. There is a diversity of timeframes that range from
those that are required by statute, those that are required by
federal law, and others that are open-ended.
Number 2345
JAN DeYOUNG, Assistant Attorney General, Labor and State Affairs
Section, Civil Division (Anchorage), Department of Law (DOL),
informed the committee that she handles employment and
administrative law issues at the DOL. She noted her previous
experience as a hearing officer for the state for seven years.
Ms. DeYoung mentioned that the DOL has been working with the
bill sponsor to address some of the department's concerns. The
DOL is pleased to see some of that work incorporated into
[Version D], she remarked, because a chief concern with the
original legislation was the absence of notice to the
administrative agency that an individual involved in the hearing
was going to go to court to seek a remedy for delay.
TAPE 04-47, SIDE B
Number 2380
MS. DeYOUNG relayed, however, that the DOL had also recommended
a minimum of 30 days before the individual could go to court
after providing notice; that 30-day timeframe would allow the
agency the opportunity to do respond to the concern and to
discover the particular harm being caused to the individual by
the delay in the hearing. She pointed out that the judicial
process isn't going to be fast, so if a remedy could be obtained
within 30 days, the individual would probably fair much better
than through assistance from the court. Ms. DeYoung said she
doesn't believe the 15 days specified in Version D is enough
time to allow the agency to "clean house"; the [15-day
timeframe] will be a problem, particularly for those agencies
whose decision makers are volunteers on boards and commissions.
In the aforementioned situation, it could simply take the entire
15 days to get in touch with and poll the members.
MS. DeYOUNG reiterated the DOL's appreciation for the notice
provision, as well as for the change in language from
"significant" to "immediate" because it will provide guidance
with regard to what might be required for the courts to
intervene.
Number 2273
MS. DeYOUNG then turned to the actual remedies [on page 2, lines
20-25] that the judge would be able to award if it appeared that
there was unreasonable delay. Enjoining the administrative
proceeding and determining the matter would be unusual for the
court to do, and it remains unclear how the court would
substitute itself for the agency. She questioned what
procedures the court would follow if there is already a hearing.
In many cases, the courts don't have the power to do some of the
things agencies do.
MS. DeYOUNG turned to the ability of the judge to order an
administrative matter to be handled by another form of dispute
resolution. Normally, alternate dispute resolution is
voluntary. Furthermore, parties often agree to share the
expense when there is agreement to proceed with an alternate
form of dispute resolution. She inquired as to how a compulsory
alternate dispute resolution would actually work and who would
bear the expense of it.
MS. DeYOUNG stated that there are already other opportunities,
at least for some administrative agencies, to address concerns
about delay. Therefore, she said, the DOL questions possible
duplication and inconsistencies with some of those remedies.
For example, the administrative procedure that provides the
superior court the authority to enjoin an administrative action
beyond the scope of the agency's administrative powers also has
the ability to order the administrative agency to act or
initiate action when it's withholding that action. At least for
Administrative Procedure Act (APA) agencies, there is some
recourse already in statute to address some of the concerns
raised. For those agencies not subject to the APA, statute has
provisions addressing delay and undue delay. Therefore, it
would be ideal if this legislation could coordinate [with those
statutes] in order to make sure that the remedies fit together
without overlap.
MS. DeYOUNG, recalling an earlier comment that it's not always
in the interest of an individual or a non-government party for
the proceeding to be decided quickly, she said she found it
interesting to note that this legislation is limited to non-
government parties, because state and political subdivisions do
appear as parties before state agencies. Ms. DeYoung expressed
her appreciation to the sponsor and the committee.
Number 2098
REPRESENTATIVE GRUENBERG offered his belief that legislation [on
page 2, line 31, through page 3, line 3] changes the Alaska
Rules of Appellate Procedure because it makes the judicial
decision not to issue an order and keeps the proceeding in the
administrative agency a final "appealable" order. The
aforementioned will have a major impact on the practice of
appellate law in so far as this involves appeals from
administrative agencies. He suggested that if this provision
[necessitates] an amendment to one of the appellate rules, the
bill ought to be held over in order to obtain information on
this matter from someone practicing in this area.
Representative Gruenberg posited that the real question is:
What is a final, "appealable" order from an administrative
agency?
MR. STANCLIFF noted his appreciation for the DOL's suggestions.
He explained that the 15-day limit is based on the fact that
with most administrative communications with the public, the
agency reserves 30 days and requires the public to respond
within 15 days. In a memorandum laying out concerns, it was
brought out that it shouldn't take an agency 30 days to agree to
work on a matter once a party has approached the agency saying
it will exercise this option if [no action is taken]. He agreed
that the language change from ["significant"] to "immediate" is
a good change. Mr. Stancliff said, "On some of the other
issues, we don't think that the court system will have a problem
interpreting how they want to deal with the dispute at hand."
He remarked that Mr. Wooliver testified in a Senate committee
that in most cases, it's anticipated that the courts are simply
going to say they agree that it's taking a long time, and ask
the agency to hurry things up.
MR. STANCLIFF opined that knowing this legislation is in place
will change the way agencies do business. Regarding a possible
court rule change, he said that the drafters were instructed to
not include anything in the bill that would require a court rule
change.
CHAIR McGUIRE asked if the 15-day standard to which Mr.
Stancliff referred was 15 business days or just 15 days.
MR. STANCLIFF explained that the 15 days would begin on the day
that the envelope goes into the postal system. He relayed his
belief that [Version D] met in the middle with the DOL and met
its primary goals in this compromise, but acknowledged that it's
the committee's prerogative to choose to go further.
Number 1854
CHAIR McGUIRE asked whether there is any concern that once
notice is given, there could be a threat of retribution.
MR. STANCLIFF said he hopes such wouldn't occur. He also said
that he could see how 30 days could allow the department to
prepare a case, knowing it was going to court. He said it would
also allow time to poll the boards and commissions, though in
today's electronic world, 30 days seems more than adequate.
REPRESENTATIVE GARA opined that if the intent is to send a
message to the agency to obtain a decision, then a 15-day limit
would probably back the agency into a corner. He pondered
whether 30 days would, in a more complex case, provide time for
the agency to issue a decision.
MR. STANCLIFF acknowledged that to be a consideration.
REPRESENTATIVE GRUENBERG noted that Rule 42(c)(3) of the Alaska
Rules of Civil Procedure reads in part:
Notice of change of judge is timely if filed before
the commencement of trial and within five days after
notice that the case has been assigned to a specific
judge.
REPRESENTATIVE GRUENBERG recalled that the courts have ruled
that a person looses his/her right if he/she hasn't actually
filed the document in court on that date. Therefore, it's not
enough to put it in the mail on that date. This legislation
refers to providing the state agency written notice, which he
pointed out may be read as having filed the document with the
agency on that date. This is a very ambiguous term, he said.
Therefore, if the intent is to have mailed the [document], then
that should be specified so that there is no question.
REPRESENTATIVE GRUENBERG referred to Mr. Stancliff's testimony
that there is no intent to impact the court rules. He offered
his belief that the language on page 2, line 31, through page 3,
line 3, seems problematic because it may be saying, "appealing
the failure of the court to provide relief". Therefore, the
language, "as if the person had not filed a petition" is
meaningless because the appeal is occurring because of a
decision by the superior court.
Number 1634
REPRESENTATIVE OGG said the language on page 2, line 31, through
page 3, line 3, seems to say that if the superior court decides
the party isn't eligible for judicial relief under subsection
(a) of Section 2, then the party has the right to continue the
administrative procedure and make any other appeal it has to the
court. He surmised that Representative Gruenberg is saying that
if the superior court makes a decision that is improper under
this statute, then the party would also have the right to take
the superior court decision through the [supreme] court route.
He emphasized that [the party] isn't denied anything, and
therefore he finds the language to be clear.
REPRESENTATIVE GRUENBERG highlighted the use of the term "right
of appeal", and said, "You wouldn't necessarily be taking a
right of appeal from that, you'd be taking a petition for a
review." The decision of the superior court to allow the
administrative agency to go forward isn't a final decision, and
therefore "you can't quote appeal from that, you can only take a
petition for review," he added.
MR. STANCLIFF offered to research this issue, and noted that he
is open to a better way of achieving the earlier-stated intent.
[HB 533, Version D, was held over.]
ADJOURNMENT
Number 1555
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:00 p.m.
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