Legislature(2005 - 2006)CAPITOL 106
01/11/2005 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| Office of the Governor, Human Rights Commission | |
| Department of Administration, Public Defenders Office | |
| Department of Administration, Office of Public Advocacy | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
January 11, 2005
8:02 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Jim Elkins
Representative Carl Gatto
Representative Bob Lynn
Representative Jay Ramras
Representative Berta Gardner
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
OVERVIEW(S): DEPARTMENT OF ADMINISTRATION, PUBLIC
DEFENDERS OFFICE; DEPARTMENT OF ADMINISTRATION, OFFICE OF
PUBLIC ADVOCACY; OFFICE OF THE GOVERNOR, HUMAN RIGHTS
COMMISSION
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
PAULA HALEY, Executive Director
Human Rights Commission
Office of the Governor
Juneau, Alaska
POSITION STATEMENT: Offered an overview regarding the
Human Rights Commission.
BARBARA BRINK, Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Presented an overview regarding the
Public Defender Agency; answered a question during the
overview regarding the Office of Public Advocacy.
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered a question during the
overview of the Public Defender Agency.
JOSHUA FINK, Public Advocate
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Offered an overview regarding the
Office of Public Advocacy.
ACTION NARRATIVE
CHAIR SEATON called the meeting to order at 8:02:07 AM.
Representatives Elkins, Gatto, Lynn, Ramras, and Seaton
were present at the call to order. Representatives Gardner
and Gruenberg arrived as the meeting was in progress.
Chair Seaton explained that since the Committee on
Committees had not yet met and the committees had not been
adopted by the House, the meeting would not be an official
one, but would be used as an overview and a work session.
Chair Seaton introduced the representatives taking part as
unofficial committee members.
^OVERVIEW(S)
^OFFICE OF THE GOVERNOR, HUMAN RIGHTS COMMISSION
8:02:53 AM
CHAIR SEATON announced that the first order of business was
the overview from the Office of the Governor, Human Rights
Commission.
8:04:14 AM
PAULA HALEY, Executive Director, Human Rights Commission,
Office of the Governor, spoke about Alaska's history of
strong anti-discrimination, and the beginning of the Human
Rights Commission. She noted that only Alabama,
Mississippi, and Arkansas do not have agencies to process
complaints of discrimination by their citizens. Ms. Haley
listed types of discrimination that the state law protects
against: race, religion, color, national origin, age,
physical or mental disabilities, sex, marital status,
changes in marital status, pregnancy, and parenthood. She
noted that while discrimination is less of a problem today
than it was 40 years ago, it is still present in the nation
and in Alaska. Ms. Haley described the claim process and
emphasized the impartial role of the commission.
8:09:27 AM
MS. HALEY, in response to a question from Chair Seaton,
noted that approximately 30 percent of businesses asked are
willing to consider some sort of mediation. Of that 30
percent, about 80 percent settle. If there is no
mediation, or if the mediation process fails, then the case
moves to an investigation. All complaints are confidential
unless scheduled for public hearing, which only happens if
the commission's case fails conciliation. Ms. Haley stated
that if the complaining party believes that the staff was
erroneous in its conclusion, that party can appeal the
decision to the Alaska Superior Court.
8:13:21 AM
MS. HALEY offered examples of cases involving racial
discrimination and sexual harassment in places of
employment, racial discrimination in housing, and
discrimination of developmentally disabled people who
needed interpreters during medical appointments.
8:19:43 AM
MS. HALEY told the committee that the commission is asked
by businesses and organizations to give presentations
regarding how to prevent and eliminate discrimination;
however, because of the commission's increasing workload,
it has had to turn down invitations. Ms. Haley addressed
the issue of the caseload backups and the changes that the
commission has had to make. She noted that in August 1999,
the commission eliminated its backlog, but due to a recent
spiking of the commission's inventory and loss of 20
percent of its staff, it will likely take eight months to
meet the current caseloads. Ms. Haley said reductions
since fiscal year 2003 (FY 03) have resulted in a 20
percent loss of staff, and additionally, reduced support
from the Department of Law has resulted in increased work
and cost to the commission.
8:22:50 AM
MS. HALEY addressed budget, goals, and performance
measures. In response to a question from Chair Seaton, she
noted that the mission of the agency is set forth in
statute, while the measures essentially have to do with
"what comes in," "how quickly we can get it out," and "what
the product is."
8:28:56 AM
MS. HALEY, in response to a two-part question from
Representative Gatto, mentioned the federal Fair Housing
Act and noted that, regarding accessibility for people with
disabilities, there are different requirements for old
buildings and newly constructed buildings. Regarding
parenthood, she said Alaska law does not address the "I
don't want to rent to children" issue, while federal law
does. Regarding the issue of pets, she said a "no pet"
rule is universally allowed, with one exception, which is
when a pet is used for technical assistance to the
individual. In response to a follow-up question from
Representative Gatto regarding a person's need for a small
pet as a companion animal, she said the person would have
to have a medical reason for needing that companion pet,
which would be a rare situation.
8:36:24 AM
MS. HALEY, in response to questions from Representative
Gruenberg, said that the commission keeps a monitoring file
open after a case is closed, to keep tabs on it. In
response to a follow-up request from Representative
Gruenberg, she agreed to find out if it would potentially
be a violation of the state Human Rights Act if people are
not able to vote because they can't understand the English
language.
8:41:49 AM
REPRESENTATIVE RAMRAS pointed to the 2003 annual report
[included in the committee packet]. Regarding the
successes of the commission, he asked how many times the
commission has investigated and found that there was no
discrimination.
8:42:45 AM
MS. HALEY directed attention to the last page of the
report, which shows that 69 percent of the complaints
brought to the commission have resulted in findings of "not
substantial evidence."
8:44:34 AM
REPRESENTATIVE GRUENBERG asked Ms. Haley if the commission
would be suggesting that the legislature take any
legislative action through either additional funding or
statutory changes.
8:45:01 AM
MS. HALEY offered her understanding that the budget that
was submitted to the legislature through the Office of the
Governor is designed to maintain the current level of
services and, at this point, there are no plans to request
that any legislation be introduced.
8:47:07 AM
MS. HALEY, in response to a question from Chair Seaton,
said that it is very rare that investigations would require
the use of subpoenas.
^DEPARTMENT OF ADMINISTRATION, PUBLIC DEFENDERS OFFICE
CHAIR SEATON announced that the next order of business was
the overview from the Department of Administration, Public
Defenders Office.
8:48:16 AM
BARBARA BRINK, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), stated
that the agency's mission is to provide constitutionally
mandated legal representation to indigent Alaskans, when
appointed by the court. Ms. Brink also gave a brief
history of the Public Defender Agency. She noted that the
PDA was formed by the Alaska State Legislature in 1969.
Originally located in the Office of the Governor, the
agency now resides in DOA. Ms. Brink said the reason for
the creation of the agency was due to the federal
constitutional right of people to be represented by council
in a federal case. She noted that, during the Gideon v.
Wainwright case in 1963, the United States Supreme Court
ruled that the states also have an obligation to provide
council when they charge people with state crimes.
MS. BRINK reviewed "practicalities," including what areas
the PDA covers, with its major offices in Juneau,
Ketchikan, Sitka, Barrow, Kotzebue, Nome, Anchorage,
Dillingham, Kenai, Kodiak, Palmer, Bethel, and Fairbanks,
and with 45 magistrate courts. She noted that in the last
fiscal year, the agency was appointed to over 21,000 new
cases, in addition to its current cases. Presently, there
are 73 attorneys, 13 investigators, and 33 support staff to
cover the entire state.
The committee took a brief at ease at 8:51 a.m.
CHAIR SEATON called the meeting back to order at 8:52:46
AM.
8:53:47 AM
MS. BRINK clarified that the PDA doesn't choose which cases
it accepts, but is appointed cases by the court. She noted
that 80 percent of criminal cases in Alaska have public
defense council, either through the PDA or through the
Office of Public Advocacy (OPA), which is consistent with
the rest of the nation. In a highly transient area or
where the economy has been hard hit, the percentages often
exceed 80 percent. Ms. Brink stated that if there is a
legal conflict that prevents the PDA from representing a
client, then it would withdraw and assign the case to OPA.
She added, "Now, this isn't a free lawyer for our clients;
there is a recoupment and repayment provision in the Alaska
statutes, and it kind of depends on at what stage you
settle your case - if you settle - or ... what type of
crime you are accused of." She noted that if a person is
acquitted, there is no requirement that he/she pay for
council; however, if a person is convicted, he/she has to
reimburse the state for the cost of the council. She noted
that that money doesn't come to the PDA, but goes into the
general fund.
8:56:05 AM
MS. BRINK, in response to a question from Chair Seaton,
offered an example of a conflict. She explained that every
client is owed a duty of loyalty by his/her attorney. She
noted that the PDA can't take both the person who's accused
and the accuser as its clients.
8:57:58 AM
MS. BRINK listed the cases the PDA covers: misdemeanors,
for which a person can be sentenced up to a year in jail,
and felonies, for which a person can be sentenced up to 99
years - both of which are prosecuted by the Office of the
District Attorney in the Department of Law; cases in which
children are accused of delinquent behavior - which are
prosecuted by the Department of Health & Social Service's
Division of Juvenile Justice; cases in which parents have
been accused by the state of neglect or abuse in the
raising of their children - done through what is called a
child in need of aid (CINA) proceeding, by the Department
of Law's Office of the Attorney General, in the Division of
Human Services; and cases involving mentally ill
individuals involuntarily committed by the state - which
are prosecuted by the Civil Division of the Office of the
Attorney General, in the Human Services Section.
8:58:51 AM
MS. BRINK said the PDA also represents probation and parole
clients. If a parole officer doesn't think that a person
is following his/her parole, that officer will file a
petition to revoke the parole, and the PDA will appear in
front of the Alaska Board of Parole and represent that
client. She said, "We represent these people from the very
beginnings of their case, all the way through the very end,
and even through appeal, so sometimes cases can last
years."
9:01:51 AM
MS. BRINK, in response to questions from Representative
Gatto, explained that because the PDA must take all cases
that come in, if the staffing were to be drastically
reduced, the case loads would just pile up and many people
would be inconvenienced. Furthermore, since every person
is entitled to the same level of defense, it is not an
option to try to lessen the workload by doing less work for
each client. She displayed a chart to the committee that
showed that in FY 88, the PDA represented approximately
12,500 new clients, while last year the agency represented
over 21,000 new clients.
9:03:03 AM
MS. BRINK directed attention to a pie chart that was
displayed for the committee to view, which showed what the
PDA's caseload looks like: 57 percent of the cases are
misdemeanors, 28 percent are felonies, 1 percent are
appeals, and 11 percent are family-related. The workload,
she explained, is distributed a little differently.
Regarding resources: 30 percent are spent on misdemeanors,
33 percent are spent on felonies, and 23 percent are spent
on CINA cases. The more serious the consequence, she
explained, the more work and effort it takes.
9:05:48 AM
MS. BRINK, in response to a question from Representative
Gruenberg, reported that the PDA has had to perform very
few appeals that are non-meritorious and she is not certain
that the agency has ever filed an Anders brief. She stated
that less than 10 percent of the agency's cases go to
trial. Ninety percent of the cases are either dismissed,
negotiated, settled, or reduced. She said it's a rare
trial where there is nothing to appeal. However, often the
appeals are withdrawn.
9:08:28 AM
MS. BRINK, in response to a question from Representative
Lynn, explained what an Anders brief is.
9:10:27 AM
LINDA WILSON, Deputy Director, Central Office, Public
Defender Agency (PDA), Department of Administration, in
response to a question from Representative Gruenberg
regarding CINA cases, said a person is entitled to council
to pursue an appeal from a termination of parental rights.
In response to a follow-up question from Representative
Gruenberg, she said, "We have never filed any Anders-type
brief in a termination preceding."
9:11:59 AM
MS. BRINK turned to the next chart regarding the workload
exploding from 5,000 in 1960 to over 68,000 in 2003 in the
Matanuska-Susitna (Mat-Su) Valley. She also offered a list
of the PDA's accomplishments and the technological advances
that have been made. She noted that all of the lawyers she
gets out of law school now are technologically skilled, and
she gave examples of technology being incorporated by the
PDA to handle the increasing caseload.
9:15:07 AM
MS. BRINK listed some wellness courts and talked about the
labor intensiveness of such cases. She said the payoff is
that those are the clients who are having success. She
noted that anything done in one part of the criminal
justice system affects all other areas of that system. She
offered examples. She revealed that the Joint Committee on
Legislative Budget and Audit performed an audit of the PDA
in 1988 and found that the agency had a 47 percent increase
in its caseload with less than a 6 percent increase in
resources.
9:19:01 AM
MS. BRINK said the agency's latest effort, which she said
she predicts will be successful, is measuring case results
for criminal clients by attempting to reduce days in jail
for both pre-trial and convicted clients when it is not
necessary for public safety. For criminal offenses
revolving around alcohol abuse or addiction, the agency
needs to deal with the addiction. She stated that the
agency also wants to reduce the number of children in state
custody and return them home without reducing their safety.
9:21:03 AM
REPRESENTATIVE GRUENBERG mentioned a [United States Supreme
Court] case called Blakely v. Washington and asked Ms.
Brink to address it.
9:21:52 AM
MS. BRINK, in response to a question from Representative
Gruenberg, reminded the committee that the State of Alaska,
like the State of Washington, has presumptive sentencing.
That means that, based on the type of offense, [an
attorney] can tell a client exactly what kind of a sentence
he/she will be facing. In order to "go above the
presumptive," there have to be certain aggravating factors
that make the particular case worse than the general
offense. Both Alaska and Washington had their judges
decide whether those aggravating factors existed, and they
only had to be proven by the state by clear and convincing
evidence. The United States Supreme Court ruled that that
is a fact-finding process that needs greater reliability
and has to be done by the jury; therefore, Alaska and
Washington's scheme was ruled as unconstitutional and has
to be changed.
MS. BRINK said there will be legislation introduced this
year that will address this issue. Additionally, all
previous cases found to have aggravating factors are being
questioned. She estimated that there are in excess of 300
of those cases currently. In response to a question from
Chair Seaton, she said she thinks there may be more of
those cases, because some people may be waiting to see how
those initial cases turn out.
9:24:06 AM
MS. BRINK, in response to a follow-up question from Chair
Seaton, reported that some judges actually believe that the
entire sentencing scheme is unconstitutional and every
sentence that was issued shouldn't stand anymore. She
said, "There are many different opinions about what Blakely
means and what Blakely says, and lots of different
solutions." In response to a question from Representative
Gruenberg, she confirmed that Judge Wolverton has "held
that way" in Alaska.
9:25:33 AM
REPRESENTATIVE GARDNER asked if [the PDA] is under any
obligation to notify anyone who has been sentenced under
the conditions [that have since been ruled
unconstitutional].
9:25:48 AM
MS. BRINK indicated that she thinks the agency does need to
deal with that issue; however, it doesn't have the
resources to go back through old files.
9:28:14 AM
MS. BRINK, in response to comments from Representative
Ramras, said her dream is that some day the public defender
will not be deliberately underfunded. If the problem is
not addressed, lawyers will not be able to spend as much
time with clients, which could result in verdicts which are
not reliable.
9:31:14 AM
MS. BRINK, in response to a question from Chair Seaton,
revealed that the Joint Committee on Legislative Budget and
Audit's report estimated that there is a shortage of 41
attorneys. She said the national caseload standard says
that no lawyer should represent more than 150 felony
clients per year and 400 misdemeanor clients per year, and
no lawyer should do more than 25 appellate briefs a year.
Ms. Brink said, "We exceed all of those numbers." Another
area she highlighted as deficient is support staff. She
offered examples.
9:32:37 AM
MS. BRINK, in response to a question from Representative
Lynn, said the level of experience between a public
defender and a prosecutor varies widely. She offered
examples. In response to a follow-up question from
Representative Lynn, she said, "We deal with a variety of
prosecutors, not just the [district attorney's] office."
9:35:50 AM
REPRESENTATIVE GARDNER noted that if the public defenders
had all the staff that they needed, the social workers
would need commensurate funding, because delays have been
caused by social workers who couldn't get to [court
hearings] because they are even more heavily booked.
9:36:59 AM
MS. BRINK, in response to a question from Representative
Gatto, said every year up to 16 interns work for free
during the summer. She noted that during the school year
the agency has had partnerships with the University of
Alaska. She said the agency has also implemented use of
Jesuit volunteers, particularly in the state's therapeutic
courts.
^DEPARTMENT OF ADMINISTRATION, OFFICE OF PUBLIC ADVOCACY
CHAIR SEATON announced that the last order of business was
the overview from the Department of Administration, Office
of Public Advocacy.
9:38:52 AM
JOSHUA FINK, Public Advocate, Anchorage Office, Office of
Public Advocacy (OPA), Department of Administration, listed
the three core functions of OPA: advocating for abused and
neglected children in CINA cases, by providing staff and
contract guardian ad litems; providing guardian and
conservator services to Alaskans mentally incapable of
managing their own affairs; and doing conflict
representation for the public defenders. He offered
details.
MR. FINK emphasized that OPA is an appointment of last
resort; the statute requires that the court first look to
spouses, family members, and private organizations. He
noted that OPA is guardian or conservator for approximately
900 adults. He revealed that 20 percent of the
guardianships or "conservatorships" created by the probate
court in Alaska are assigned to OPA. The average caseload
for an OPA guardian is approximately 65 cases; the national
standard is 45. There are 14 public guardians statewide.
Mr. Fink said OPA is required by statute to review its
cases every six months to see what cases might be able to
be transferred to a private entity or a family member;
however, he added that OPA doesn't have the staff to do
that.
9:45:26 AM
MR. FINK stated that the public guardian division of OPA is
mandated to provide information and referrals to the public
regarding guardianship and conservators, to assist family
members dealing with issues, such as having a family member
with dementia. He noted that OPA is also obligated by
statute to provide representation to the subjects of the
petitions for guardianships - "respondent representation" -
and visitor services. He said, "We can't both be the
individual's attorney and then, potentially, his guardian;
that would be a conflict. So, in those cases we hire a
private attorney; we contract that out." Mr. Fink noted
that court visitors are also appointed in every case to
gather information and provide an independent report on the
need for the guardianship and recommendations. Since there
is no staff to do that, OPA contracts that responsibility
out.
9:47:11 AM
MR. FINK said OPA has many functions and some seem
conflicting. Over 60 percent of its budget is contracted.
He listed offices around the state and how they are
staffed, and he mentioned places in the state that he will
be studying. The biggest operation is Anchorage. Mr. Fink
described his staff, which he emphasized has very little
support staff and nobody to do the filing. He said he is
actively looking at where he can find efficiencies and
bring in new attorneys. By setting up OPA as separate
sections and law firms, Mr. Fink explained that he has been
able to keep many more cases in house where they are less
expensive.
9:52:26 AM
MR. FINK said he and Ms. Brink work well together. He
talked about preauthorization and audited fees. In the
past, he explained, fee collection was inconsistent; some
public guardians didn't think fees should be collected.
Legislation was passed last year to regulate this. Mr.
Fink reported that the collections have risen since then,
but he emphasized that no one who can't afford to pay is
made to do so.
9:55:53 AM
MR. FINK said a law past last year to regulate guardians
and conservators, which will increase the public's and the
court's trust. He said OPA is hoping to encourage the
formation of some private organizations to provide the
guardianship work and, thus, lessen OPA's workload. In
response to a question from Chair Seaton, he clarified that
although the law has been passed, the regulations are still
in progress.
9:56:44 AM
MR. FINK talked about case management and the need for a
new case management system, which he said will enable him
to more accurately know what cases he has and "where
they're at," so that he can monitor workloads and more
fairly distribute the work. It will also help in
determining costs for case types.
9:58:16 AM
MS. BRINK, in response to a question from Representative
Ramras, said the pay range for attorneys and support staff
varies greatly depending on the cost-of-living allowances
in different offices. For example, a starting attorney in
Anchorage will make $50,000 a year. The same attorney in
Barrow or Kotzebue will make $68,000 a year. Ms. Brink
said that is an Attorney II level and the highest range is
an Attorney IV, which is reached within a couple years of
the attorney's career. An Attorney IV in Anchorage makes
approximately $65,000. Support staff are at between ranges
14 to 16.
9:59:19 AM
MR. FINK proffered that most of his support staff makes
between $9 and $14 an hour.
10:00:18 AM
MR. FINK, in response to a question from Chair Seaton, said
his staff grew 34 percent last year with about 16 positions
added. He said there is a definite savings where he has
hired employees rather than contractors.
10:00:43 AM
CHAIR SEATON emphasized that it will be important for Mr.
Fink to let the legislature know when employees added equal
a cost savings.
ADJOURNMENT
There being no further business before the committee, the
House State Affairs Standing Committee meeting was
adjourned at 10:01:15 AM.
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