05/06/2004 03:20 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 6, 2004
3:20 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. 535
"An Act relating to liability for expenses of placement in
certain mental health facilities; relating to the mental health
treatment assistance program; and providing for an effective
date."
- MOVED CSHB 535(JUD) OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 54
"An Act relating to the crime of assault."
- MOVED CSSSHB 54(JUD) OUT OF COMMITTEE
CS FOR SENATE JOINT RESOLUTION NO. 33(STA)
Urging our United States Senators to work to allow a timely vote
on the floor on all judicial nominations.
- MOVED CSSJR 33(STA) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 179(FIN)
"An Act relating to criminal history records and background
checks; allowing persons to teach in the public schools for up
to five months without a teaching certificate if the person has
applied for a certificate and the application has not been acted
upon by the Department of Education and Early Development due to
a delay in receiving criminal history records; allowing teacher
certification for certain persons based on a criminal history
background check without fingerprints; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 338(STA)
"An Act relating to actionable claims against state employees;
and providing for an effective date."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 219(JUD) am
"An Act relating to offenses against unborn children."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 217(JUD)
"An Act relating to genetic privacy."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 284(FIN) am
"An Act making information on a permanent fund dividend
application, other than the applicant's name, confidential, and
relating to disclosure of that confidential information; and
relating to confidential information in voter registration
records."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 354(STA) am(efd fld)
"An Act relating to complaints filed with, and investigations,
hearings, and orders of, the State Commission for Human Rights;
and making conforming amendments."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 269(CRA)
"An Act relating to access to library records, including access
to the library records of a child by a parent or guardian."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 535
SHORT TITLE: LIMIT STATE AID FOR MENTAL HEALTH CARE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
03/08/04 (H) READ THE FIRST TIME - REFERRALS
03/08/04 (H) HES, JUD, FIN
03/25/04 (H) HES AT 3:00 PM CAPITOL 106
03/25/04 (H) Heard & Held
03/25/04 (H) MINUTE(HES)
04/13/04 (H) HES AT 2:00 PM CAPITOL 106
04/13/04 (H) Scheduled But Not Heard
04/22/04 (H) HES AT 2:00 PM CAPITOL 106
04/22/04 (H) Scheduled But Not Heard
04/27/04 (H) HES AT 3:00 PM CAPITOL 106
04/27/04 (H) Moved CSHB 535(HES) Out of Committee
04/27/04 (H) MINUTE(HES)
04/28/04 (H) HES RPT CS(HES) 1DP 2NR 1AM
04/28/04 (H) DP: COGHILL; NR: SEATON, WILSON;
04/28/04 (H) AM: CISSNA
05/03/04 (H) JUD AT 1:00 PM CAPITOL 120
05/03/04 (H) Heard & Held
05/03/04 (H) MINUTE(JUD)
05/05/04 (H) JUD AT 1:00 PM CAPITOL 120
05/05/04 (H) Scheduled But Not Heard
05/06/04 (H) JUD AT 3:00 PM CAPITOL 120
BILL: HB 54
SHORT TITLE: ASSAULT ON SCHOOL EMPLOYEES
SPONSOR(S): REPRESENTATIVE(S) LYNN
01/21/03 (H) PREFILE RELEASED (1/17/03)
01/21/03 (H) READ THE FIRST TIME - REFERRALS
01/21/03 (H) JUD, FIN
02/09/04 (H) SPONSOR SUBSTITUTE INTRODUCED
02/09/04 (H) READ THE FIRST TIME - REFERRALS
02/09/04 (H) JUD, FIN
05/05/04 (H) JUD AT 1:00 PM CAPITOL 120
05/05/04 (H) Scheduled But Not Heard
05/06/04 (H) JUD AT 3:00 PM CAPITOL 120
BILL: SJR 33
SHORT TITLE: CONGRESSIONAL VOTE ON JUDICIAL NOMINATION
SPONSOR(S): JUDICIARY BY REQUEST
04/07/04 (S) READ THE FIRST TIME - REFERRALS
04/07/04 (S) STA, JUD
04/27/04 (S) STA AT 3:30 PM BELTZ 211
04/27/04 (S) Scheduled But Not Heard
04/29/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/29/04 (S) <Pending Referral>
04/29/04 (S) STA AT 3:30 PM BELTZ 211
04/29/04 (S) Moved CSSJR 33(STA) Out of Committee
04/29/04 (S) MINUTE(STA)
05/01/04 (S) STA RPT CS 2DP 1DNP 1NR SAME TITLE
05/01/04 (S) DP: STEVENS G, COWDERY;
05/01/04 (S) DNP: GUESS; NR: STEDMAN
05/01/04 (S) JUD AT 5:00 PM BUTROVICH 205
05/01/04 (S) <JUD Referral Waived>
05/04/04 (S) TRANSMITTED TO (H)
05/04/04 (S) VERSION: CSSJR 33(STA)
05/05/04 (H) READ THE FIRST TIME - REFERRALS
05/05/04 (H) STA, JUD
05/05/04 (H) JUD AT 1:00 PM CAPITOL 120
05/05/04 (H) Scheduled But Not Heard
05/06/04 (H) STA AT 8:00 AM CAPITOL 102
05/06/04 (H) <STA Referral Waived>
05/06/04 (H) JUD AT 3:00 PM CAPITOL 120
WITNESS REGISTER
BILL HOGAN, Director
Central Office
Division of Behavioral Health (DBH)
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: On behalf of the administration, presented
HB 535 and responded to questions.
DAN BRANCH, Senior Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 535.
ROD L. BETIT, President/Chief Executive Officer (CEO)
Alaska State Hospital & Nursing Home Association (ASHNHA)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 535.
RICHARD RAINERY, Executive Director
Alaska Mental Health Board (AMHB)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 535, provided
comments and responded to questions.
VERNER STILLNER, Legislative Representative
Alaska Psychiatric Association
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 535, provided
comments and urged deletion of Section 2.
ROBERT B. BRIGGS, Staff Attorney
Disability Law Center of Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to HB 535, in
particular Section 4, and responded to questions.
REPRESENTATIVE BOB LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SSHB 54.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a comment during discussion of a
proposed amendment to SSHB 54.
BRIAN HOVE, Staff
to Senator Ralph Seekins
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SJR 33 on behalf the Senate
Judiciary Standing Committee, sponsor by request, which is
chaired by Senator Seekins.
SENATOR RALPH SEEKINS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of SJR 33, spoke as chair
of the Senate Judiciary Standing Committee, sponsor by request.
ACTION NARRATIVE
TAPE 04-78, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting, which had been recessed on 5/5/04, back to
order at 3:20 p.m. Representatives McGuire, Samuels, Gara, and
Gruenberg were present at the call back to order.
Representatives Holm and Ogg arrived as the meeting was in
progress.
HB 535 - LIMIT STATE AID FOR MENTAL HEALTH CARE
Number 0092
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 535, "An Act relating to liability for
expenses of placement in certain mental health facilities;
relating to the mental health treatment assistance program; and
providing for an effective date." [Before the committee was
CSHB 535(HES).]
Number 0146
BILL HOGAN, Director, Central Office, Division of Behavioral
Health (DBH), Department of Health and Social Services (DHSS),
introduced himself.
REPRESENTATIVE GRUENBERG mentioned that he'd met with the
interested parties in order to try to reach an accommodation
regarding the issues raised at the bill's last hearing, but did
not succeed. He elaborated:
It seemed to me, ... as an observer, that the main
question in the bill was on Section 2 and some
question on Section 8, and the consumers ... really
didn't like Section 2 in the bill and they objected to
it. And we got talking a bit about the sentence on
page 2, lines 17 and 18, ... that reads, "Nothing in
this chapter creates an entitlement to financial
assistance under this chapter", and their feeling was
that that ... conflicts with the language at the top
of page 3, line 1, [that] says ... the department
shall provide financial assistance. But I'm not
totally sure that that's totally correct, and Mr.
[Hogan] can give us the opposing view. ... We couldn't
come to a meeting of the minds on anything, and I felt
my role at that time ... was just to simply see if we
could reach an accommodation on anything, and we
couldn't.
Number 0302
MR. HOGAN offered the following:
This is a bill related to Designated Evaluation &
Treatment services, or DET. We are asking [for] the
support of the legislature, for the bill, to ensure
that people still receive services through this
particular mechanism but only up to the dollars that
are allocated by the legislature for this service. ...
Designated Evaluation & Treatment services are
provided to individuals who are involuntarily
committed because of a danger to themselves or others.
We have [a] number of hospitals where we have one or
two beds that provide this service, and our primary
providers are at Bartlett [Regional Hospital], here in
Juneau, and Fairbanks Memorial [Hospital/Denali
Center].
The concept behind Designated Evaluation & Treatment
is to stabilize individuals in their home community,
as close to home as possible, particularly those who
meet the criteria for involuntary commitment. Over
the last two years, from [fiscal year (FY) 01 through
FY 03], the cost for this service has increased 100
percent. Part of that has to do with increased
utilization, part of it has to do with the increased
rate that hospitals receive for the service. What we
are proposing in this bill is a management mechanism
so that we would have a better capability or better
capacity to manage this particular program.
The core requirement is that the hospital would notify
us within 24 hours of admission of someone who would
qualify or might qualify for this service. Currently,
they don't have to let us know until six months after
the fact; we frequently get bills several months after
the ... hospitalization has ended, and, for the most
part, we are obligated to pay that bill. This
[legislation] gives us increased management capability
... to be better able to control costs. We also feel
like we need the statutory authority to fund DET
services up to the appropriation.
What this does, more than anything else, is it puts in
place a plan if and when we run out of services
[funding] to ensure that that person still receives
service in a safe environment. We have support from
the Alaska State Hospital & Nursing Home Association
[ASHNHA]. The one sticking point, or rub point if I
can use that term, in the bill is Section 2, and it is
around that language that says that the service will
only be provided up to the appropriation and that the
service is no longer considered an entitlement.
Number 0462
MR. HOGAN concluded:
I appreciate Representative Gruenberg's efforts at
trying to work out some sort of compromise or ... some
sort of middle ground on this, but the commissioner
feels strongly that this language needs to remain in
the bill, and the [Alaska Mental Health Trust
Authority (AMHTA)] and the [Alaska Mental Health Board
(AMHB)] particularly [feel], though, [that] the
language should be removed. This is the point of
disagreement, unfortunately; we have been working for
the past two months or more to come up with
appropriate language that everyone could agree on, but
unfortunately we were not able to reach total
agreement. I would be more than willing to answer any
question that the committee might have.
REPRESENTATIVE GARA asked whether current law provides patients
with rights that would maintain their eligibility for private
care.
MR. HOGAN replied:
This service is designed specifically for individuals
who have no resources. So if somebody has Medicaid or
they have a private third party, then ... the service
is reimbursed through that mechanism. If the person
has no other funding source, then the state has paid,
primarily using general fund [GF] dollars, for the
service. There is an enrollment system that's
involved, where the individual does actually have to
apply for the service, but usually the individual
facility or hospital does that on behalf of the
individual.
REPRESENTATIVE GARA asked how passage of the bill with Sections
2 and 8 intact will change a person's right to continued private
care once the money runs out. What happens now when the money
runs out?
Number 0689
MR. HOGAN responded:
We, fortunately, have not gotten into a situation
where we have run out of money for this service. But
our budget for FY 05 is about a million dollars less
than what we have available in FY 04. The person
would still receive care, but the person would have to
go to the Alaska Psychiatric Institute, or [the] API,
in Anchorage. We anticipate having enough dollars to
get us through, I would say, February of the next
fiscal year - it's about seven or eight months. We
have pledged, through the letter of intent that is
attached to the bill, to look at all other funding
sources.
One of those options would be Disproportionate Share
Hospital, or DSH, dollars; ... these are federal
dollars, and some of those dollars are currently going
to these facilities. ... The department did get an
increase in DSH dollars as a result of the Medicare
drug prescription bill, and we do ... anticipate being
able to use some of that increase to help pay for this
service. But in spite of that, we feel we need the
bill because we still may not have enough money to pay
for the service.
REPRESENTATIVE GRUENBERG referred to the aforementioned letter
of intent, and said:
It seems to me, although you may not be able to
predict totally, it ought to be not impossible for you
to predict somewhat in advance whether you're going to
run out of money. ... And I'm looking at the second
part of this letter of intent, which says, "that in
the event of a shortfall in appropriations", the DHSS
"shall make every effort to identify additional
financing sources or reallocate appropriations
available for the purpose from lesser priorities to
continue these important services for the remainder of
the fiscal year".
At the very least, I would like to put something,
directory language, like that in the bill itself, so
it's not just an obscure letter of intent but we have
something to that effect in the bill itself that you
shall do that. ... Basically [language along the lines
of]: "you shall make every effort to identify
additional financing sources or reallocate
appropriations available for the purpose from other
priorities to continue the services in advance". If
we adopted a conceptual amendment like that, would you
have heartburn? ...
REPRESENTATIVE GRUENBERG added:
And the second thing [is], ... whether we could put
something in there that could maybe give you some
access to Mental Health Trust [Authority] money for
that, so that ... we wouldn't have a crises but if
that happened, that we'd have the money there, at
least on an interim basis, to continue the services.
Could you ... check on the answers to those two
[questions]? ...
CHAIR McGUIRE noted that HB 535 has been referred to the House
Finance Committee, which would analyze the financial issues
raised by the bill.
REPRESENTATIVE OGG characterized inserting such language in the
bill as akin to micromanaging the [DHSS], and opined that [the
DHSS] is perfectly capable of looking for funds on its own and
so such language would be unnecessary.
MR. HOGAN remarked that although there has been some Mental
Health Trust Authority [MHTA] money supporting this particular
service, those dollars stop being available at the end of the
current fiscal year, and this is one of the reasons the DBH has
such a large deficit.
Number 0988
DAN BRANCH, Senior Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law (DOL), said
it would be highly unusual and inappropriate to add that type of
restriction on the executive branch in a bill such as HB 535;
that's why the language is used in the letter of intent instead.
REPRESENTATIVE GRUENBERG asked why they shouldn't include such
language in the bill itself, since the purpose of many pieces of
legislation is to set priorities for the executive branch and
provide it with legislative direction. Why is this bill any
different?
MR. BRANCH replied, "I think it crosses into the area of
separation of powers."
Number 1081
ROD L. BETIT, President/Chief Executive Officer (CEO), Alaska
State Hospital & Nursing Home Association (ASHNHA), expressed
the ASHNHA's support for HB 535. He went on to say:
We worked hard to get to where we are with it. The
original form, we were not happy with, but some
accommodations have been made to take out some
language and to make some clarifications. I think
it's pretty clear that this program is going to be
short of money, to the tune of around a million
dollars by my calculations, which is about a third of
their funding. If it's not made up with the
management provisions that are in the bill to look at
the patient care, there's going to be a real
shortfall.
And what I think Section 2 does - and others have
heartburn with it but in my opinion it is better to
have Section 2 in the bill - ... [is it says], in the
event of a shortfall, the commissioner will take the
following action, which I think he has the authority
to do anyway and the responsibility to do to balance
his budget, and then further sets out that if that
occurs, that community hospitals, who will have these
patients because they'll be involuntarily admitted
there in the beginning during the evaluation phase,
will have the department work with them to, as quick
as they can and as soon as is medically safe, ... move
those patients to [the] API, which is what this is all
about - that they will get care, they won't get it in
their community hospital if it's otherwise available,
but be transferred to [the] API where that care will
be given, and it will be good care.
And I think it's preferable to having a vacuum there
in terms of what will happen if this should occur.
Now, the commissioner has said he'll look for other
money - he won't go for a supplemental. If, in fact,
they run out as early as February or March, I think
there'll be huge pressure on the commissioner to find
other money or to come back to you and ask for a
supplemental because I think this will be an untenable
situation to continue indefinitely like this. So I
think it creates the perfect box to put the
commissioner in: it says that he's not going for a
supplemental; that he's committed to making sure these
patients get care at [the] API; ... that the unfunded
mandate on communities is not allowed to grow and
grow; and that if that doesn't work, he'll come back
with some other solution.
MR. BETIT concluded:
So, again, we support the bill, we think it's reached
a compromise that we can live with. Some have
characterized it that the hospitals are not getting
hurt by this, that's not at all true, there will still
be days provided for free under this scenario, but it
won't go on indefinitely. I'd be happy to answer any
questions.
REPRESENTATIVE GARA asked whether the program only covers
involuntarily committed patients.
MR. BETIT said that is his understanding.
Number 1215
RICHARD RAINERY, Executive Director, Alaska Mental Health Board
(AMHB), indicated that he would be attempting to provide the
committee with the consumer's point of view. He offered the
following comments:
I want to give you a very brief history lesson. The
Alaska Mental Health Board was founded in 1987;
virtually from the day the board came into existence,
one of its primary goals was downsizing [the] API and
shifting the focus of mental health care in Alaska to
local options - least restrictive is the philosophy.
One of those local options is Designated Evaluation &
Treatment; the sole purpose of that service is to
divert people from going to [the] API, which was the
only option prior to the institution of those
services.
So it's a philosophical issue for us; we believe that
these services should be provided locally, that folks
have a right to [a least] restrictive level of care
close to their families, close to their support
networks. And I want to remind you that these are
folks who are involuntarily committed - they don't
have an option. If they don't get into a local
hospital, they are going to [the] API.
MR. RAINERY concluded:
So we do have a difference with the Section 2
language, we prefer the language that's in the letter
of intent. And the last thing I want to mention is
that ... this change is coming up when [the] API is
being downsized - it's going to be a smaller
institution with less capacity to handle additional
patients. It's also going to be a therapeutically
different institution; it's not going to be as simple
to go over census as it is in the current hospital.
There won't be room, and the therapeutic milieu is
quite different than the one you see at [the] API
today. ... I would be happy to answer any questions.
CHAIR McGUIRE said that although she agrees with Mr. Rainery
philosophically, the state no longer has the money to provide
local care in private facilities to those who are involuntarily
committed. "If you have any thoughts about how these community
hospitals are going to absorb these high costs on top of all the
other things that they're absorbing, I'd be interested in
hearing [them]," she remarked.
Number 1387
MR. RAINERY responded:
First off, this program has, historically, a number of
times, exceeded the original appropriation, and the
department has always found a way to make sure that
services were given to these folks. And that's the
rub there, because by keeping Section 2 in there,
we're absolving them from that responsibility,
although I certainly believe that they've offered the
letter of intent in good faith and intend to do that,
but we all know that a letter of intent is not binding
on anybody, particularly ... if administrations change
at some point in the future.
The answer to how the community hospitals absorb this
is the section that was added to Section 2, where
there's a guarantee that the department will move
these folks out to [the] API or to another program as
expeditiously as possible. Whether there is another
program other than [the] API is ... open to question
because these folks are being committed because
they're a danger to self or others - they wouldn't be
at the hospital if there was another local program
that could handle them.
CHAIR McGUIRE noted, however, that Mr. Rainery is objecting to
Section 2, which includes the aforementioned guarantee. "If we
decided as a committee, for example, to remove Section 2, then
what would be the relief for the community hospital?" she asked.
MR. RAINERY offered his belief that if Section 2 is removed, the
department would do as the letter of intent proposes and find
other funding for the program. In response to another question,
he said that according to his understanding, patients currently
do have the right to appeal a decision to stop funding private
treatment at local hospitals.
Number 1512
REPRESENTATIVE GARA surmised, then, that under current law, even
if the department runs out of funds for this program, a person
can maintain his/her right to continued treatment, which forces
the department to find additional money.
MR. RAINERY offered that the current law says that the
department shall pay for these services and does not include a
restriction on appeals which are based on exhaustion of the
appropriation.
REPRESENTATIVE GARA asked whether the DET program provides those
who live in Anchorage with treatment in private facilities.
MR. RAINERY said no, adding "it's a part of the long term plan
that has been put together over the last few years to have those
sorts of beds available in Anchorage, [but] this bill will
likely make development of those beds a question."
Number 1597
VERNER STILLNER, Legislative Representative, Alaska Psychiatric
Association, characterized HB 535 as an unfunded mandate of the
emergency medical mental health system of Alaska. It's not just
services that will be affected, he remarked, but also emergency
mental health services. He went on to say:
Unfunded mandate because, one, the fiscal note that is
attached has an 18 percent decrement in the funding
over this year. Secondly, the funding under Section 2
is managed through a letter of intent, which to me has
never been done before. I don't know of a single
jurisdiction in [the] United States where the state or
the local jurisdiction does not become the payor of
last resort for involuntary admissions. An
involuntary admission is someone that is deemed
dangerous to self or others, because of mental
illness, or gravely disabled. A doctor or a licensed
mental health professional can petition the court, the
petition is given, the police can pick the individual
up and take him to the local ... Designated Evaluation
& Treatment facility.
So this is really a lifesaving piece of legislation
and a system that has worked very well, and I would
not like to see it threatened because it deals with
our communities and with our patients, our relatives,
and our family members. So therefore, I think we need
to do everything to support this system; I think the
bill has very good provisions in it for the management
of this program that heretofore has not been managed
very well, and I know that from a day-to-day basis -
and there's some very good administrative tools in it.
But I'm strongly opposed to Section 2 and I would urge
you to consider deleting that and funding this
emergency mental health system as it is funded
elsewhere in the nation.
Number 1691
MR. STILLNER continued:
Secondly, what will happen when monies run out? Right
now, there are transport monies that are in this bill,
so that the transport monies that require an escort to
take the individual from Fairbanks Memorial
[Hospital/Denali Center] or from Ketchikan General
[Hospital] to the nearest Designated Evaluation [&
Treatment facility] will also simultaneously run out,
so that the patient may have a difficult time getting
to the API. Now, I doubt if the [Alaska State]
Troopers are going to be taking these individuals when
they don't have a contract or they don't have an
obligation to escort the individual that is dangerous
to self or others to the API.
The API is also downsizing to 74 beds - their average
daily census currently is running around 69 - I don't
see how they can accommodate these additional
patients, especially during their high peaks, so that
I'm afraid that the mental health individual - the
mentally ill [person] that is [dangerous] to self or
others - will end up in detainment in the correctional
facility nearby. And I don't like to see that happen,
I don't think any of us in this room would like to see
that happen. So therefore, I think that the bill is a
very good bill other than Section 2 and Section 8 -
the appeal process - and I would urge you to amend
those two and delete them.
Number 1745
ROBERT B. BRIGGS, Staff Attorney, Disability Law Center of
Alaska, relayed that he's had some experience with the
Designated Evaluation & Treatment program prior to passage of
the 21st legislature's SB 97; he was the attorney of record in a
lawsuit challenging the state's practice regarding
administration of the DET program because it was felt that the
state was not uniformly providing a state-funded benefit to
people involuntarily committed to mental health facilities or
voluntarily committed in lieu of involuntary commitment. As a
result of that lawsuit's settlement, SB 97 was introduced and
passed in the 21st legislature; he noted that he'd assisted with
crafting the language of that bill.
MR. BRIGGS went on to say:
One thing that I've heard today that I disagree with
is the statement that this bill ... before you today -
House Bill 535 - only affects involuntary commitments.
One of the themes of our lawsuit and one [of] the
themes of SB 97 was that this medical assistance
program would [also be] provided to people who are
admitted in lieu of involuntary commitment. And the
reason for that was to promote voluntary mental health
treatment and to prevent unnecessary expense of
involuntary commitment proceedings, because if
somebody was presented with the prospect of having a
huge bill for mental health treatment, they would be
much less willing to go voluntarily if they knew that
they could get the state to pay for an involuntary
commitment.
The system [has never been adequately] administered or
adequately funded to provide a full array of community
mental health services. I think the fact that this
bill is before you demonstrates that the state has
asked, too often, for private providers to fund the
costs of mental health treatment that indigent people
could not afford, a cost that the state should, over
time, ... be bearing. The fourth point I want to
make, though, about this bill, is that my initial
reaction to the concept of requiring patients to
register prior to being eligible for a benefit is ...
that [it] immediately raises potential equal
protection and due process red flags.
Number 1861
MR. BRIGGS continued:
People with mental illness, especially someone who's
suffering from paranoia, may refuse to allow
themselves to be registered because suddenly their
name is in a state coffer somewhere. The system has
been administered ... since the 21st legislative
session ... without this registration requirement, and
I'm not really sure what the need for it is. I
suspect what is really going on is, as another witness
has testified, ... the administration wants to try to
move as many of these patients from private beds to
[the] API, which I suggest is a violation of the
Americans with Disabilities Act [ADA] least
restrictive mandate and is in contradiction to the
current state mental health plans, which call for
providing mental health treatment in the community
where the individual resides or as close to the
community where the individual resides as possible.
When someone is admitted to a mental health treatment
facility, it is very difficult to have successful
replacement in the community without involving that
person's family. And time and time again, in this
state, people are shipped off to [the] API, then a
treatment and discharged plan is formed, but it just
does not get carried out for one reason or another.
We believe, as an organization, ... that treatment
programs are going to be much more effective when
treatment is provided in the community mental health
setting closest to where that person resides.
So we oppose this bill, but in particular we oppose
the registration provision of Section 4. I apologize
for providing this testimony without written backup;
... we've been short-staffed. We recognize that this
is an administration bill and it has the support of
the [Alaska State Hospital & Nursing Home
Association], so I'm not expecting this bill
necessarily to be held up. But I do urge each member
of this committee to support mental health treatment
funding; it's surprising ... how small our community
is when I see people I know who are state employees
... [with] decompensating episodes.
Number 1965
MR. BRIGGS concluded:
I guess one other point I want to make about the
registration program, and something I think this
committee could fruitfully do, is expand the
registration time. The current form of the bill ...
says that the registration must take place within 24
hours of admission, ... and I would urge changing that
to a minimum of 72 hours. When a patient is admitted
to the mental health hospital, often extremely
decompensated, [he/she] may not know what resources
are available or even where they're from or what their
name is. I think it places a burden on the hospital
to try to assist that individual in deciding whether
they have adequate assets to cover the
hospitalization; within 24 hours, a treatment plan may
not have even been formulated, whereas by 72 hours,
... the patient may very well have cleared and be able
to remember things and point out assets and insurance
coverage where the hospital ...
CHAIR McGUIRE interjected and, after determining that no one
else wished to testify, closed public testimony on HB 535. She
then directed attention to a handwritten amendment with
corrections that read [original punctuation provided]:
1) Strike page 2 lines 15 (after "notification.")
through line 20
2) Strike page 2 lines 28 through line 30
3) Strike page 5 lines 3-6. Strike Section 8.
4) on page 2 line 28 insert
"(2) make every effort to secure additional
funding and reallocate available appropriations
to fund financial assistance under this chapter."
CHAIR McGUIRE requested that this proposed amendment be divided.
REPRESENTATIVE GRUENBERG agreed, and relayed that he wished to
change item 3 such that it deleted both Section 7 and Section 8;
therefore, item 3 of the proposed amendment would delete
language starting on page 4, line 27, through page 5, line 6.
He noted that Section 7 is merely a conforming change related to
the change proposed via Section 8, and opined that it should be
deleted as well. [Although no formal motion was made, no
objection was stated, and item 3 was treated as amended.] In
response to comments, he indicated that he would withdraw item
4, and suggested that items 1, 2, and 3 [as amended] be treated
as a single amendment.
Number 2103
CHAIR McGUIRE agreed, and referred to items 1, 2, and 3 [as
amended] as Amendment 1:
1) Strike page 2 lines 15 (after "notification.")
through line 20
2) Strike page 2 lines 28 through line 30
3) Strike page 4 line 27 through page 5 line 6.
Strike Sections 7 and 8.
[Although no formal motion was made, Amendment 1 was treated as
having been moved for adoption.]
REPRESENTATIVE SAMUELS objected, and asked Mr. Hogan to comment.
MR. HOGAN said that [the DHSS] is opposed to deleting lines 15-
20 from page 2.
REPRESENTATIVE SAMUELS relayed that he would be maintaining his
objection.
REPRESENTATIVE GRUENBERG suggested amending Amendment 1 such
that it also deletes "(1)" from page 2, line 24.
CHAIR McGUIRE suggested instead just allowing the drafter the
latitude to renumber accordingly.
REPRESENTATIVE GRUENBERG agreed.
REPRESENTATIVE GARA said that according to his recollection, it
has been represented that the proposed cuts to funding will not
have an impact on patient care. However, he remarked, "it
appears to me that if we don't adopt [Amendment 1], then we will
have adopted a cut based upon a promise of no impact to patient
care, when, in fact, we know it's going to have an impact [on]
patient care."
CHAIR McGUIRE agreed and said she would be supporting Amendment
1. She added:
I don't want to have a guarantee in there per se, but
I think when people are committed involuntarily, it's
a very delicate situation and, frankly, the closer
they are to their support systems and their
communities, the better off they are. And if you have
a letter of intent that's already saying you're going
to do that, I have grave troubles with putting new law
on the books; the letter of intent, as you well know,
is not binding in any way, and so if the intent is to
continue to fund it, I don't think ... these sections
are necessary for now ....
Number 2214
A roll call vote was taken. Representatives Gara, Gruenberg,
and McGuire voted in favor of Amendment 1. Representatives Ogg,
Samuels, and Holm voted against it. Therefore, Amendment 1
failed by a vote of 3-3.
Number 2238
CHAIR McGUIRE [made a motion to adopt] Amendment 2, on page 4
[lines 2-3] replace "24 hours" with "72 hours". There being no
objection, Amendment 2 was adopted.
REPRESENTATIVE GRUENBERG raised the question of possibly
creating an exemption to the registration provision.
MR. BRIGGS offered his belief that because a third party may
apply for assistance on behalf of someone, and because hospitals
often are the entities that ultimately make the applications for
very decompensated individuals, it is not necessary to include
an exemption to the registration provision.
TAPE 04-78, SIDE B
Number 0001
REPRESENTATIVE GRUENBERG asked Mr. Briggs to provide the
committee with a legal opinion supporting his comment that the
bill may violate the ADA and therefore be unconstitutional.
MR. BRIGGS agreed to provide a legal opinion.
Number 2304
REPRESENTATIVE SAMUELS moved to report CSHB 535 (HES), as
amended, out of committee with individual recommendations and
the accompanying fiscal note.
REPRESENTATIVE GARA objected.
Number 2282
A roll call vote was taken. Representatives Ogg, Gruenberg -
after first voting "no" and then changing his vote to "a
reluctant 'yes'" - Samuels, Holm, and McGuire - noting that she
did so reluctantly - voted in favor of moving CSHB 535(HES), as
amended, out of committee. Representatives Gara voted against
it. Therefore, CSHB 535(JUD) was reported from the House
Judiciary Standing Committee by a vote of 5-1.
CHAIR McGUIRE mentioned the letter of intent. [HB 535 was heard
again later in the meeting.]
Number 2267
CHAIR McGUIRE recessed the meeting at 4:10 p.m. to a call of the
chair.
CHAIR McGUIRE called the House Judiciary Standing Committee back
to order at 5:40 p.m. Representatives McGuire, Samuels, Gara,
and Gruenberg were present at the call back to order.
Representatives Anderson and Ogg arrived as the meeting was in
progress.
HB 54 - ASSAULT ON SCHOOL EMPLOYEES
Number 2259
CHAIR McGUIRE announced that the next order of business would be
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 54, "An Act relating to
the crime of assault."
Number 2242
REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor of
SSHB 54, said that current law imposes penalties on persons who
assault law enforcement officers, firefighters, correctional
officers, and emergency medical technicians, ambulance
attendants, paramedics, and other emergency responders. The
bill proposes to add school employees to the list of persons for
which someone may be penalized for assaulting. He mentioned
that SSHB 54 has been recommended as priority legislation by the
Anchorage School District (ASD). As a former employee in many
of the aforementioned fields, he said he could relate to the
need for this legislation. If teachers are to keep children
safe, he opined, the least that the legislature can do is help
protect teachers and other school employees. He noted that
members' packets include a letter of support from the National
Education Association (NEA) - Alaska. In conclusion, he asked
members to support SSHB 54.
CHAIR McGUIRE, in response to a question, read the statute
referenced in SSHB 54 on page 1, lines 11-13, and on page 2,
lines 2-4 - AS 11.41.230:
Sec. 11.41.230. Assault in the fourth degree.
(a) A person commits the crime of assault in the
fourth degree if
(1) that person recklessly causes physical injury
to another person;
(2) with criminal negligence that person causes
physical injury to another person by means of a
dangerous instrument; or
(3) by words or other conduct that person
recklessly places another person in fear of imminent
physical injury.
(b) Assault in the fourth degree is a class A
misdemeanor.
CHAIR McGUIRE surmised that the bill pertains only to the crime
of assault in the fourth degree and that the bill's reference to
the aforementioned statute is merely setting mandatory minimum
sentences.
Number 2098
REPRESENTATIVE GARA remarked that the bill appears to punish
reckless assault and verbal assault, and asked why it didn't
focus on intentional assault.
REPRESENTATIVE LYNN offered that the language in the bill merely
mirrors current statute with regard to assaulting law
enforcement officers, firefighters, correctional officers, and
emergency medical technicians, ambulance attendants, paramedics,
and other emergency responders. Basically, the bill adds school
employees to that list.
REPRESENTATIVE GARA said he is troubled by mandating minimum
sentences for the crimes referenced in the bill, and suggested
leaving the sentencing up to the judge's discretion.
CHAIR McGUIRE pointed out, however, that the current statute
being altered by SSHB 54 stipulates a mental state of knowingly
and already provides mandatory minimum sentences for the crimes
referenced in the bill. She noted that all the persons listed,
both in the current statute and in the bill, must be engaged in
the performance of official duties in order for an assault on
them to be considered a crime under this proposed statute. In
response to a question, she reread AS 11.41.230(a)(3): "(3) by
words or other conduct that person recklessly places another
person in fear of imminent physical injury". She predicted that
a "reasonable person" standard would be used.
REPRESENTATIVE GARA said he isn't sure whether that standard
would be used.
REPRESENTATIVE GRUENBERG suggested that the bill need not
propose the addition of a new paragraph (2) to current statute;
instead, it could merely add, "an employee of an elementary,
junior high, or secondary school" to the list set forth in
paragraph (1) of the bill, the list that is already part of
current statute. Much of the language in proposed paragraph (2)
is already part of current statute, he noted. He also suggested
that they tighten the title.
Number 1889
REPRESENTATIVE LYNN indicated he would view Representative
Gruenberg's suggestion as a friendly amendment.
REPRESENTATIVE GRUENBERG suggested debating AS 11.41.230(a)(1),
(2), and (3) separately, since they are three separate crimes.
CHAIR McGUIRE agreed, and reread AS 11.41.230(a)(1): "(1) that
person recklessly causes physical injury to another person;".
REPRESENTATIVE GRUENBERG said he has no problem providing for a
mandatory minimum sentence of 60 days when that crime has been
committed against a school employee, and characterized it as a
reasonable sentence.
CHAIR McGUIRE reread AS 11.41.230(a)(2), which says in part:
"(2) with criminal negligence that person causes physical injury
to another person by means of a dangerous instrument;".
REPRESENTATIVE GRUENBERG said he has no problem with providing
for a mandatory minimum sentence of 60 days when that crime has
been committed against a school employee.
CHAIR McGUIRE again reread AS 11.41.230(a)(3): "(3) by words or
other conduct that person recklessly places another person in
fear of imminent physical injury". She suggested that they take
the reference to that crime out of SSHB 54, since it only
requires proof of recklessness.
REPRESENTATIVE GRUENBERG said he could envision criminalizing
reckless behavior committed against a school employee, and
opined that people shouldn't be treating teachers in that
fashion. He, too, predicted that a "reasonable person" standard
used be would.
CHAIR McGUIRE, in response to a question, noted that violation
of AS 11.41.230 constitutes assault in the fourth degree, which
is a class A misdemeanor.
REPRESENTATIVE OGG, using the example of doctors and hospital
employees, pointed out that aside from perhaps correctional
officers and law enforcement officers, no one expects to be
assaulted while doing his/her job, and so if they are going to
single out school employees, they might as well just provide for
a mandatory minimum sentence when anyone gets assaulted as
described in AS 11.41.230. He said he has a problem elevating
one particular group of people over other groups.
Number 1627
REPRESENTATIVE LYNN argued, however, that in addition to helping
people and being required to protect students, school employees
are also government employees; thus attacking a school employee
is akin to attacking the government.
REPRESENTATIVE OGG questioned, then, whether all government
employees, for example, legislators, should be included under
the provisions of the bill.
REPRESENTATIVE LYNN opined that teachers, whom he suggested act
as agents of the parents, deserve the extra protection that
would be afforded via passage of SSHB 54. Characterizing school
as a dangerous place, he mentioned some of his experiences as a
teacher having to confront angry parents.
REPRESENTATIVE SAMUELS, on the issue of doctors and government
employees, noted that some doctors are also government employees
but some are not, and the same could be said of pilots - in any
given profession, people are doing the same job though they may
or may not be employed by the government; therefore, the law
should not provide some people extra protection based solely on
whether they are government workers. He questioned why the bill
only proposes to add school employees to the list, why not also
doctors, nurses, and pilots.
REPRESENTATIVE GARA remarked that Representative Ogg has a good
point. He offered his understanding that in the two instances
of assaults on teachers that were included in members' packets
as examples, the perpetrators got longer sentences than what is
being proposed in SSHB 54. What is the problem that the bill
proposes to correct, he asked.
REPRESENTATIVE LYNN said simply that the goal of the bill is to
make it safer for teachers to do their job without fear of
reprisal from angry parents. Teachers deserve this type of
protection, he again opined.
REPRESENTATIVE GARA again pointed out that the courts are
already sentencing people to more jail time than is being
proposed via SSHB 54. He said that since this conduct is
already a crime, he is a little wary about establishing a
minimum sentence when the conduct doesn't constitute intentional
assault. He suggested altering the bill so that it provided a
minimum mandatory sentence for intentional assault.
REPRESENTATIVE LYNN opined that "we need to have something more
than we have now," adding that he wouldn't have problem with
changing the bill as Representative Gara suggests.
REPRESENTATIVE OGG asked Representative Lynn whether he has any
evidence - for example, statistics from other jurisdictions -
which shows that a mandatory minimum sentence of 60 days will
act as a deterrent.
REPRESENTATIVE LYNN said he did not, but offered his belief that
"this is done in other jurisdictions," and that various school
[districts] support SSHB 54.
CHAIR McGUIRE, in response to comments, noted that members'
packets include a memorandum from Legislative Legal and Research
Services that details other states' statutes pertaining to this
issue.
Number 1296
REPRESENTATIVE GARA made a motion to adopt Amendment 1: after
"sentenced" on page 2, line 1, add the words, ", if the assault
was intentional,"; and place a period after "(1)" on page 2,
line 2, and delete the remainder. The proposed language would
then read in part:
(d) A defendant convicted of assault in the
fourth degree who knowingly directed the conduct
constituting the offense at ...
(2) an employee of an elementary, junior
high, or secondary school who was engaged in the
performance of school duties at the time of the
assault shall be sentenced, if the assault was
intentional, to a minimum term of imprisonment of
(A) 60 days if the defendant violated
AS 11.41.230(a)(1).
Number 1289
CHAIR McGUIRE objected [for the purpose of discussion].
REPRESENTATIVE GARA said he is willing to establish a mandatory
minimum sentence in instances of intentional assault on a
teacher, but is not thrilled about establishing a mandatory
minimum sentence in instances where the assault is not
intentional or where it's just a verbal assault. He offered his
belief that the latter kinds of assault can be dealt with via
existing statute and a judge can use his/her discretion with
regard to sentencing. Amendment 1 would change the bill such
that it would only deal with intentional physical assaults on
school employees.
REPRESENTATIVE LYNN said he is comfortable with Amendment 1.
Number 1217
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature,
mentioned that by adding the mental state of intentional,
Amendment 1 would make the provisions regarding this new crime
of assaulting a school employee similar to the provisions
pertaining to assault in the first degree and assault in the
second degree.
REPRESENTATIVE GARA noted that the bill only alters the statute
pertaining to assault in the fourth degree. He offered: "If
something is a recklessness crime, you can charge intent as a
recklessness crime, because intent is more serious than
recklessness; so you would be saying to the jury, 'It was at
least reckless if not intentional,' and so you just get your 60
days by charging it as fourth degree assault."
Number 1188
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1. There being none, Amendment 1 was adopted.
Number 1170
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, to
make the title as narrow as possible to conform to what the
committee has done.
CHAIR McGUIRE added, "Specifically the mental intent, ... and to
educational folks ...."
Number 1148
CHAIR McGUIRE asked whether there were any objections to
Amendment 2. There being none, Amendment 2 was adopted.
REPRESENTATIVE OGG, referring to the aforementioned memorandum
from Legislative Legal and Research Services, noted that most of
the statutes that other states have adopted apply to students
who assault teachers, and that none appear to impose a mandatory
minimum sentence of 60 days or 30 days. He opined that the
length of sentence should be left up to the judge's discretion,
and remarked that he did not see a deterrent component to SSHB
54.
REPRESENTATIVE SAMUELS said he didn't know why they are not also
including emergency room doctors, for example, and other persons
who work in occupations where there is a high risk of coming in
contact with angry individuals.
CHAIR McGUIRE asked whether aggravators would apply.
REPRESENTATIVE GARA said he is not sure. He indicated that he
would not be comfortable imposing a mandatory minimum sentence
of 60 days on a student who loses control and assaults a
teacher.
REPRESENTATIVE LYNN, in response to questions, offered his
belief that SSHB 54 would apply to students who are 18 years
old, and in instances wherein a coach gets assaulted. He asked
that the committee consider moving the amended version of the
bill from committee.
CHAIR McGUIRE, in response to a question, mentioned that the
bill has been referred to the House Finance Committee.
Number 0903
CHAIR McGUIRE moved to report SSHB 54, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSSSHB 54(JUD) was
reported from the House Judiciary Standing Committee.
The committee took an at-ease from 6:11 p.m. to 6:15 p.m.
HB 535 - LIMIT STATE AID FOR MENTAL HEALTH CARE
Number 0890
CHAIR McGUIRE announced that the committee would again take up
HOUSE BILL NO. 535, "An Act relating to liability for expenses
of placement in certain mental health facilities; relating to
the mental health treatment assistance program; and providing
for an effective date."
Number 0880
CHAIR McGUIRE made a motion to rescind the committee's action
that day in moving CSHB 535(JUD) from committee. There being no
objection, CSHB 535(HES), as amended, was back before the
committee.
REPRESENTATIVE GRUENBERG made a motion to rescind the
committee's action that day in failing to adopt Amendment 1:
1) Strike page 2 lines 15 (after "notification.")
through line 20
2) Strike page 2 lines 28 through line 30
3) Strike page 4 line 27 through page 5 line 6.
Strike Sections 7 and 8.
REPRESENTATIVE SAMUELS objected.
A roll call vote was taken. Representatives Gara, Gruenberg,
Anderson, and McGuire voted in favor of rescinding the
committee's action in failing to adopt Amendment 1.
Representatives Ogg and Samuels voted against it. Therefore,
the committee rescinded its action in failing to adopt Amendment
1 by a vote of 4-2.
CHAIR McGUIRE stated that the question of whether to adopt
Amendment 1 was back before the committee, and asked whether
there were any objections to adopting Amendment 1.
REPRESENTATIVE SAMUELS objected.
A roll call vote was taken. Representatives Gara, Gruenberg,
Anderson, and McGuire voted in favor of Amendment 1.
Representatives Ogg and Samuels voted against it. Therefore,
Amendment 1 was adopted by a vote of 4-2.
Number 0749
REPRESENTATIVE GRUENBERG moved to report CSHB 535(HES), as
[newly] amended, out of committee with individual
recommendations and the accompanying fiscal note. There being
no objection, CSHB 535(JUD) was reported from the House
Judiciary Standing Committee.
SJR 33 - CONGRESSIONAL VOTE ON JUDICIAL NOMINATION
Number 0741
CHAIR McGUIRE announced that the final order of business would
be CS FOR SENATE JOINT RESOLUTION NO. 33(STA), Urging our United
States Senators to work to allow a timely vote on the floor on
all judicial nominations.
Number 0665
BRIAN HOVE, Staff to Senator Ralph Seekins, Alaska State
Legislature, presented SJR 33 on behalf of the Senate Judiciary
Standing Committee, sponsor by request, which is chaired by
Senator Seekins. He said that SJR 33 urges U.S. Senators to
work towards allowing a timely vote on all judicial nominations,
and requests that the U.S. Senate move forward with President
George w. Bush's judicial nominations. Mr. Hove went on to say:
Our U.S. Constitution provides the President with the
power to nominate qualified candidates for federal
judicial positions with the consent of the [U.S.]
Senate, but many of these nominations are currently
being blocked through parliamentary delay tactics
carried out by a minority of Senators. This has
created needless hardship within the judiciary branch
of our government. In fact, the Administrative Office
of the United States Courts has classified 24
judgeships as judicial emergencies. Many of President
Bush's nominees are intended to fill these seats.
Senate Joint Resolution 33 requests [that] the U.S.
Senate move forward with these nominations, thus
allowing the judicial branch to function as the [U.S.]
Constitution intended. Therein ends my testimony.
REPRESENTATIVE GRUENBERG characterized SJR 33 as a partisan
resolution that speaks to a problem which has also occurred in
previous administrations. He said:
Now, if you want to take a partisan swipe at the
Democrats, you can do it, but you can't expect my
support any more than you could if I took a partisan
swipe at the Republicans. Now, my question to you, on
behalf of your Senator, is, [do] you want to clean
this up and make it a nonpartisan statement or do you
want to keep it partisan like it is? I will work with
you to deal with the problem if you want to make it a
nonpartisan [resolution] and really get at the
problem. But I'll oppose it if you keep it partisan.
Your choice.
MR. HOVE said he is sensitive to the fact that this issue is not
new. "We don't believe that any nomination ought to be held up
irrespective of which administration happens to be in office;
this has been an ongoing strategy, apparently, [and] this
resolution requests that we just move forward."
Number 0480
REPRESENTATIVE GRUENBERG remarked: "I haven't had an answer to
my question. Do we want to clean it up, make it nonpartisan and
deal with it? Or do we want to have a partisan fight on the
House floor? Your choice."
MR. HOVE argued that there was very little time left to deal
with this issue. He added, "If we had more time in this
session, then I would probably be amenable to working some
language through."
REPRESENTATIVE GRUENBERG said:
I want you to consider that our time on the House
floor is valuable too. My question to you all on the
committee is, do you want 12 Democrats ragging this
bill around. I don't think that's good policy, I
don't think it [speaks] well for the bill, I think
it's going to take up time, and I urge you to
reconsider your position. Your choice.
CHAIR McGUIRE asked whether there were any amendments.
REPRESENTATIVE GRUENBERG said he would be happy to offer
amendments as long as they were viewed as friendly amendments.
He suggested that he and Mr. Hove meet and come up with some
proposed amendments that Mr. Hove would be in favor of. He
offered: "What I would suggest conceptually is that we say,
that through the past several administrations, groups of members
of the [U.S.] Senate have not been cooperative in getting
appointments confirmed, and we would urge that they work
together to do so."
REPRESENTATIVE ANDERSON suggested deleting the language on page
1, line 16, through page 2, line 2, and then moving the
resolution forward. He expressed disfavor with the concept of
changing that language to reflect that dilatory tactics have
been used by both parties throughout several administrations.
Number 0191
REPRESENTATIVE GRUENBERG said one reason for changing the
language in that latter fashion is because it is true. He
pointed out that the way the resolution is currently written, it
implies that this situation has only occurred in President
Bush's administration, even though that's not an accurate
reflection. He went on to say:
I don't have a problem with the first "whereas"
[statement]. I would keep the second ... through the
fourth ... more general and say: in the past there
have been a number of judgeships classified as
judicial emergencies, and in the past several
administrations these have been pending, both [U.S.]
Court of Appeals and [U.S.] District Court
nominations, and that this is not in the public
interest, and therefore we resolve that we urge the
[U.S.] Senators to work to allow a timely vote on the
floor of the [U.S.] Senate on all judicial nominations
and to work to improve the system or cure the rules.
... Let's just keep it clean.
MR. HOVE responded: "I think if we all had an opportunity to
vote on this resolution in this state, I think that a majority
of the folks in this state would vote for it the way it is."
REPRESENTATIVE GRUENBERG countered: "Would they not have voted
for it the way it ... is under the previous administration too?"
MR. HOVE acknowledged that that's possible, but added that by
looking at the current political make up of the Alaska State
Legislature, he believes that gives him a good indication of
where the people of Alaska stand on this issue.
CHAIR McGUIRE said she understands Representative Gruenberg's
point, but is reluctant to go through an extensive rewording of
the resolution. She noted that this resolution will not change
law, and questioned whether anyone even reads this type of
resolution. She said that she support leaving SJR 33 as is.
She said she would hope that members would not choose to spend
several hours on the House floor debating a resolution that some
people won't even read.
TAPE 04-79, SIDE A
Number 0001
REPRESENTATIVE GRUENBERG said:
The reason I'm saying that is, we have seen, in the
past two years, some bills that are like lightening
rods and attract us ideologically because we may be
pro-business or anti-business, or pro-development or
anti-development, [pro-environment or anti-
environment], but we have seen very few that are
overtly partisan. I mean, there have been some that
have had the effect of being that, mainly in this
sphere of elections or lobbying or campaigning and
stuff like that, but ... I can think of very few that
are overtly partisan. We in the House have worked
hard at being bipartisan, and I think we've been
pretty successful. And I think that's good policy and
the people of the state, I think, like it.
I would hate to see the legacy of this House, in the
last few days, be misperceived by something like this.
And Senator Seekins, I'm being very frank about your
bill; you're a friend of mine, but you need to know
how I feel about this. And what [I] have suggested to
Mr. Hove ... [is] that this is going to turn us, I am
afraid, into a very partisan debating society the last
few days of this session. I think the point certainly
has been made, when you passed it through your
[legislative] body, the way your [legislative] body
feels.
REPRESENTATIVE ANDERSON opined that even if the language on page
1, line 16, through page 2, line 2, were deleted, there would
still be debate on the House floor. He remarked that since a
majority of House members will vote to pass it, the committee
should just move the bill from committee.
Number 0229
SENATOR RALPH SEEKINS, Alaska State Legislature, speaking as
chair of the Senate Judiciary Standing Committee, sponsor by
request, said:
There were no accusation on the floor, in the Senate,
of this being partisan; it came down to the numbers,
basically. I will tell you right up front that I
don't care who the President of the United States is,
whether it was Bill Clinton, who was not my favorite
President, or whether it's George W. Bush, who I like,
that the man deserves an up and down vote on his
nominations. When either party plays politics with
the number of judges that need to sit in the courts
across the nation, it is absolutely wrong - there is
no doubt in my mind - I don't care if it's Republicans
playing ... fast and loose or it's Democrats playing
fast and loose. We don't do that here. When the
governor brings his nominations, we get an up and down
vote on it. That's what this is saying. And right
now, quite frankly, we're not getting there because
people are closing off on that.
REPRESENTATIVE GRUENBERG responded: "I agree with what you've
said. Can we put what you've just said into this [resolution]?
That's all I'm asking, to do what you've just said."
SENATOR SEEKINS remarked: "I guess ... it's true, because a
minority, whether that is the minority or not, is keeping this;
it's ... a fact that a minority of [U.S.] Senators are doing it.
And just by number, ... we did not say that it was the minority,
we just said a minority."
REPRESENTATIVE GRUENBERG replied:
The reason I'm saying this, Senator [Seekins], is
because it uses President Bush, it uses the [U.S.]
Senate; what I'd like to do, and I've committed to
work with Mr. Hove ... [to] come up with some neutral
language that does just what you've said - I don't
really have a problem with the resolve - and let's do
it so it can pass with bipartisan support and
accomplish just what you've said.
REPRESENTATIVE ANDERSON opined that attempting to alter the
resolution will delay it such that it doesn't have time to pass.
REPRESENTATIVE GRUENBERG offered his belief that a solution
could be arrived at overnight.
Number 0437
REPRESENTATIVE ANDERSON moved to report CSSJR 33(STA) out of
committee with individual recommendations and the accompanying
fiscal note.
Number 0440
REPRESENTATIVE GARA objected [for the purpose of discussion].
He said:
We'll pass the resolution out, and certainly it's a
fair bill for the Senator to push. This is what
happens when people decide to abuse their power. For
most of American history, the [U.S.] Senate has
confirmed the ... President's nominations. In the
1800s and the 1910s, all the way through the '60s, all
the way through the '70s, ... and even all the way
through the Regan Administration, some very
controversial judges got through. And really I think,
frankly, with some of the leaders in Congress in the
'90s, this [is] when all of a sudden the [U.S.] Senate
started blocking the President's [nominations] with
regularity, blocking every single nomination they
could block. And both sides have done it, but it
started with one party ... feeling their oats and now
the other party's feeling its oats, and it's too bad.
But it's not a new thing ..., unfortunately, [though]
it's a recent thing. It's too bad.
REPRESENTATIVE GRUENBERG said he would not object to moving the
resolution from committee.
REPRESENTATIVE GARA withdrew his objection to the motion.
Number 0501
CHAIR McGUIRE announced that CSSJR 33(STA) was reported from the
House Judiciary Standing Committee.
The committee took an at-ease from 6:36 p.m. to 6:40 p.m.
ADJOURNMENT
Number 0520
The House Judiciary Standing Committee meeting was recessed at
6:41 p.m. to a call of the chair. [The meeting was reconvened
May 7, 2004.]
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