Legislature(1993 - 1994)
02/22/1993 01:40 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
February 22, 1993
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator George Jacko
Senator Dave Donley
Senator Suzanne Little
MEMBERS ABSENT
NONE
OTHERS PRESENT
Senator Randy Phillips
Representative Kay Brown
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 9
Relating to an amendment to the Constitution of the United
States prohibiting desecration of the Flag of the United
States.
BILL SCHEDULED BUT NOT HEARD THIS DAY.
SENATE BILL NO. 56
"An Act relating to the budget reserve fund established
under art. IX, sec. 17, Constitution of the State of
Alaska."
SENATE BILL NO. 113
"An Act making a special appropriation to the constitutional
budget reserve fund of certain money obtained in settlement
with British Petroleum America for resolution of disputes
over taxes arising under the state's worldwide unitary
apportionment income tax; and providing for an effective
date."
BILL SCHEDULED BUT NOT HEARD THIS DAY.
SENATE BILL NO. 19
"An Act relating to the crime of conspiracy."
SENATE BILL NO. 64
"An Act relating to civil liability for workplace safety
inspections; and providing for an effective date."
SENATE BILL NO. 49
"An Act relating to preelection reports; closing the two-day
reporting gap in those reports; setting the date of February
15 for filing year-end campaign finance reports; and
requiring reporting of zero year-end reports."
SENATE JOINT RESOLUTION NO. 6
Proposing amendments to the Constitution of the State of
Alaska authorizing the use of the initiative to amend the
Constitution of the State of Alaska by approval of
two-thirds of the votes cast on the proposed amendment.
BILL SCHEDULED BUT NOT HEARD THIS DAY.
SENATE JOINT RESOLUTION NO. 8
Proposing amendments to the Constitution of the State of
Alaska relating to capital projects and loan appropriations,
and to the expenditure limit.
BILL SCHEDULED BUT NOT HEARD THIS DAY.
SENATE BILL NO. 56
"An Act relating to the budget reserve fund established
under art. IX, sec. 17, Constitution of the State of
Alaska."
PREVIOUS SENATE COMMITTEE ACTION
SJR 9 - NONE
SB 113 - NONE
SB 19 - See Judiciary minutes dated 2/19/93.
SB 64 - See Labor & Commerce minutes dated 2/4/93 and
2/9/93. See Judiciary minutes dated 2/19/93.
SB 49 - See Senate State Affairs minutes dated 1/29/93.
See Judiciary minutes dated 2/17/93 and 2/19/93.
SJR 6 - See State Affairs minutes dated 1/25/93 and
1/27/93.
See Judiciary minutes dated 2/17/93 and 2/19/93
SJR 8 - See State Affairs minutes dated 1/27/93. See
Judiciary minutes dated 2/15/93 and 2/19/93.
SB 56 - See State Affairs minutes dated 2/3/93 and 2/10/93.
WITNESS REGISTER
Ray Brown, Attorney
311 Gulkana Avenue
Anchorage, Alaska
POSITION STATEMENT: Opposed SB 19.
Dean Guaneli, Chief
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Supported SB 19.
James Baldwin, Asst. Attorney General
General Civil Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Opposed
ACTION NARRATIVE
TAPE 93-16, SIDE A
Number 001
Chairman Robin Taylor called the Judiciary Committee meeting
to order at 1:40 p.m.
SENATOR TAYLOR introduced SB 49 (YEAR-END CAMPAIGN FINANCE
REPORTS) sponsored by SENATOR TIM KELLY and SENATOR DAVE
DONLEY. The bill had been previously heard, so it was
decided to move it.
SENATOR HALFORD moved to pass SENATE BILL NO. 49 from
committee with individual recommendations. Without
objections, so ordered.
SENATOR TAYLOR returned SB 19 (CRIME OF CONSPIRACY) to
committee for additional testimony. He noted RAY BROWN was
waiting on teleconference in Anchorage.
SENATOR HALFORD returned to a previous objection from
SENATOR DONLEY dealing with a law enforcement officer being
part of the conspiracy, and he referred to the version in
the House which also excluded action from anyone in
cooperation with the police. He said the House bill had an
affirmative defense, and he read the applicable paragraph.
He also said he would like to hear from someone in Public
Safety as to why the law enforcement officials shouldn't be
excluded, as raised by SENATOR DONLEY.
Number 148
SENATOR TAYLOR invited RAY BROWN in Anchorage to testify.
MR. BROWN referred to questions raised by SENATOR DONLEY
about the second person being a police officer, and having a
provision in statute to specifically prohibit it. He also
referred to questions from senators about the propriety of
having a police officer being the second person in the
conspiracy, and he pointed out the problem of having a
police officer as the second person in a conspiracy, was
entrapment.
MR, BROWN explained entrapment on the federal level was
decided by a jury, but he said entrapment was a mixed bag of
fact and law, and initially determined by the court. He
described how an officer in Alaska could be in grave danger,
and he pointed to components in existing statutes in Title
11.
MR. BROWN said all of the examples given at the last meeting
on SB 19 are addressed in existing statutes, thus, there
would be no fear of over-reaching by law enforcement
personnel. He claimed the outlying areas did not have the
control or quality of training, and the existing statutes
would cover all of the participants the conspiracy bill
would reach.
Number 225
MR. BROWN said the bill would treat all players in a
conspiracy act identical, even the peripheral participants,
by nature of being near the conspiracy. He claimed it would
allow tremendous prosecutorial over-reaching, and he
described what he called the reality of the number of cases.
He continued to give his opinions on fiscal implications,
jurisdictions, attorneys for indigent defendants, multi-
defendant conspiracy trials, rural trials, and the Sixth
Amendment.
SENATOR DONLEY asked MR. BROWN for his definition of "overt
Act," and MR. BROWN explained why he thought it would be
difficult, but he thought there should be an attempt to do
so.
Number 285
SENATOR DONLEY read his definition, and MR. BROWN thought
his definition was better than leaving it undefined, and
would address some of the concerns. They also discussed a
definition for "conspiracy," and MR. BROWN expanded into the
problems with escalating the conspiracy. He thought the
bill should be more clearly defined to prevent this.
SENATOR TAYLOR called on MR. GUANELI to testify again.
SENATOR HALFORD asked for some clarification if the only
other person involved was a policeman, and he read a section
from a previous conspiracy bill relating to the involvement
of police personnel in the conspiracy. He wanted to know
how the section from the House version would apply to the
legislation at hand.
Number 368
MR. GUANELI agreed with SENATOR HALFORD'S concerns about the
police involvement, and explained the use of investigators
to gain evidence. He thought it would undermine the case to
prohibit the state from using the police officers to provide
evidence of conspiracy, and he described the possible use of
an undercover police officer to infiltrate the conspiracy.
MR. GUANELI explained what evidence would be left for the
jury to make a decision, and he also explained how difficult
it might be for the prosecution without the assistance of
the undercover officers.
SENATOR HALFORD asked about the Governor's bill, and MR.
GUANELI discussed the related provisions in the bills. He
said there was no prohibition in the Governor's bill to
having a police officer as part of the conspiracy;
therefore, it would be allowed.
SENATOR DONLEY asked about the prevention of solicitation,
and MR. GUANELI reviewed present legislation which might
cover the problem.
SENATOR TAYLOR led a discussion with the committee members
and MR. GUANELI on organized crime rings, solicitation
statutes, entrapment, complex issues of fact, interpretation
of federal rules, and case law.
Number 471
SENATOR HALFORD decided not to move the bill until he
learned more about the Governor's bill.
SENATOR DONLEY offered three amendments, the first being to
define "overt act," from the House Bill 343 from 1992, 'In
this section, "overt act in furtherance of the conspiracy'
means an act of such character that it manifests a purpose
on the part of the actor that the object of conspiracy be
completed." He suggested it would be inserted on page 1,
line 8, following the word "conspiracy," to CSSB 56, 8-
LSO246\A, and explained reasons for his amendment.
There was some discussion among committee members and MR.
GUANELI, before SENATOR TAYLOR moved Amendment #1. Without
objections, so ordered.
Number 506
SENATOR DONLEY proposed a second amendment which would
address communications on page 1, line 7, after the word
"activity," to insert "and communicate that agreement."
SENATOR HALFORD expressed his concerns about the burden of
proof. They discussed the proposed amendment at some length
in terms of a specific offense, agreement to the conspiracy,
and proving intent.
SENATOR DONLEY moved to change the amendment to add to the
amendment, "... by words or other conduct." SENATOR HALFORD
had concerns that in a multifaceted conspiracy, the defense
would argue that unless everyone knew every detail, the
conspiracy wasn't complete. MR. GUANELI explained why he
didn't think it would be a problem. SENATOR DONLEY agreed,
and still thought an affirmative act of communication was
necessary.
Number 570
SENATOR HALFORD was not convinced ...
TAPE 93-16, SIDE B
Number 001
... there should be an addition, since it might be another
standard that had to be proved. SENATOR TAYLOR suggested an
example that might be applicable to the standard. SENATOR
DONLEY added his part to the example to defend his
amendment. There was a general discussion on the amendment
as it related to the conspiracy example.
SENATOR TAYLOR repeated SENATOR DONLEY'S amendment and asked
if there was objection to the amendment. SENATOR HALFORD
objected and the amendment failed.
Number 047
SENATOR DONLEY moved to add on page 3, a new subsection on
line 4, "(h) In a prosecution under this Section, it is an
affirmative defense that in order to obtain the evidence of
the commission of a conspiracy, a public law enforcement
official, or a person working in cooperation with the
official, agreed with the defendant to engage in and cause
the performance of the offense, and the defendant and the
law enforcement official, or person working in cooperation
with the official, are the only persons who conspired to
commit the offense."
SENATOR HALFORD said he wasn't going to support the
amendment, but suggested a better place on page 2, between
(d) and (e), and he explained his reasons.
SENATOR DONLEY asked to have the amendment replaced on page
2, line 16, with a new subsection following (d). SENATOR
TAYLOR asked for objection on the amendment, and SENATOR
HALFORD objected. Motion failed on a 3 - 2 vote.
Number 089
SENATOR DONLEY asked to retry the motion using just the law
enforcement officials, and SENATOR TAYLOR clarified the
amendment. SENATOR HALFORD still objected to the amendment,
and the amendment failed on a 3 - 2 vote.
SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 19(JUD)
as amended from committee with individual recommendations.
Without objections, so ordered.
SENATOR TAYLOR returned SB 64 (IMMUNITY FOR SAFETY
INSPECTIONS) to committee, and SENATOR HALFORD moved to
adopt the CS FOR SENATE BILL NO. 64 (8-LSO445\O, Ford, dated
2/22/93) as a work draft. Without objections, so ordered.
SENATOR TAYLOR invited SENATOR DONLEY to offer his
amendment.
SENATOR DONLEY quoted some testimony previously on the bill
about the interplay between the committee substitute and the
health insurance proposal for health insurance benefits for
impacted, injured workers and their families. He explained
how this would benefit the families and keep them whole
while they got back on their feet.
Number 129
SENATOR DONLEY proposed Amendment #1 which would provide
medical coverage for 18 months for the injured worker, who
no longer receives compensation, and he explained the
amendment.
SENATOR TAYLOR reviewed the Van Biene case, tort law,
additional benefits, litigation, insurance carriers,
workers' compensation rights, and third party liability. He
explained why he was opposing the amendment.
SENATOR DONLEY defended his amendment claiming the Alaskan
workers' compensation actually saved money in the face of
rising costs elsewhere, and he credited the cooperation
between labor and management.
Number 203
SENATOR TAYLOR appreciated his comments, but thought there
had been a hidden price to pay for bringing down the costs,
one of which is the manner in which the lawyers represented
the injured workers.
SENATOR JACKO suggested Amendment #1 was "out of order" if
it didn't fit under the title, but SENATOR TAYLOR preferred
to vote on the amendment. The amendment failed on a 3 - 2
vote.
SENATOR DONLEY explained why he would like to have a
discussion on "intentional misconduct standard," and SENATOR
TAYLOR initiated a question and answer exchange on the
subject with SENATOR DONLEY, who continued to defend his
definition.
SENATOR DONLEY proposed Amendment #2, inserting " reckless
or" at the beginning of line 11, on page 1. His amendment
was defeated on a 3 - 2 vote.
SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 64(JUD)
from committee with individual recommendations. There was
objection. The bill passed on a 3 - 2 vote.
SENATOR TAYLOR introduced SB 56 (ADMINISTRATION OF BUDGET
RESERVE FUND) and invited REPRESENTATIVE KAY BROWN and
SENATOR RANDY PHILLIPS to review the bill.
Number 318
REPRESENTATIVE BROWN explained her work on the legislation,
which would address what money should go into the
Constitutional Budget Reserve Fund. She said the
legislation was approved by the voters in 1990, but she said
there had been a struggle to interpret the term,
"administrative proceeding."
REPRESENTATIVE BROWN reviewed Section 1 in the State Affairs
committee substitute, which deals with what happens when
there is termination of an administrative proceeding for
purposes of deciding where money should go into the fund.
REPRESENTATIVE BROWN referred the committee to page 2,
subsection (b), which deals with money that would arrive in
the future as the result of a proceeding and would provide
for an agreement administering money in the future - and
would not be captured by the reserves.
REPRESENTATIVE BROWN explained under what conditions money
could be spent from the reserves, and addressed in language
beginning on page 2, line 7. She said the same sources
would be examined in one year to determine what would be
available for appropriation, and she explained the language
specifies that "Available for Appropriation" does not
include federal funds, money in the earnings reserve of the
permanent fund, or money held in trust for a particular
purpose.
REPRESENTATIVE BROWN quoted the bill as to how money
available for appropriation for the current fiscal year is
money in the general fund, including money from lapsed
appropriations, that has not been appropriated during a
previous fiscal year during any fiscal year or to any
special fund or account.
REPRESENTATIVE BROWN discussed the provisions under which
money from the Budget Reserve Account could be spent and the
current attorney general's opinion, which would prevent
capture of specific funds in the account.
Number 373
SENATOR PHILLIPS gave some history of the constitution
amendment passed on the floor of the House in 1990, and he
stressed there was plenty of public records and legislative
intent that indicated all money from back taxes from oil and
gas should be placed in the Constitutional Budget Reserve
Fund. He said the vote was 70% in favor of the
constitutional amendment, and was clearly the intent that
all the back taxes should be placed in the Constitutional
Budget Reserve Fund - not by the interpretation of the
attorney general.
SENATOR PHILLIPS explained how and why SB 113 would place
the money from the latest settlement money in the
Constitutional Budget Reserve Fund.
SENATOR HALFORD questioned whether the bill dealt with the
existing $680 million settlement.
Number 408
REPRESENTATIVE BROWN claimed there was more money at stake,
listed some other settlements, and expressed her frustration
at their inability to get a clear understanding from the
administration as to how much money received should be in
the Constitutional Budget Reserve Fund.
REPRESENTATIVE BROWN outlined a problem with conflicting
numbers between the Legislative Budget and Audit Committee,
with the administration giving a much lower number. She
explained this was in addition to new money to come, and she
suggested the legislation, if made retroactively, could
capture a great deal more money in the account.
Number 452
SENATOR HALFORD said it was difficult to make an ideological
argument, and delay the effective date.
REPRESENTATIVE BROWN said it was a practical argument in
light of the position by the administration not to put any
of the settlement money in the budget reserve account, and
she discussed their efforts to reinstate the interpretation
by the legislature.
SENATOR PHILLIPS differed from REPRESENTATIVE BROWN in that
he wanted to make the legislation retroactive as mentioned
by SENATOR HALFORD. He said REPRESENTATIVE BROWN had asked
for an audit, which the Budget and Audit Committee had
granted, to find out how much money is in the account.
SENATOR TAYLOR led a discussion with SENATOR HALFORD and
SENATOR PHILLIPS on the retroactive effective date, filing a
suit, vetoing the bill, statute law, Catch 22, and a
possible Superior Court decision.
SENATOR HALFORD outlined a scenario that could put the
legislature on the wrong side of the argument and might
precipitate a special session as accomplices in the wrong.
SENATOR PHILLIPS suggested passing a resolution directing
Legislative Budget and Audit to pursue a lawsuit, and
SENATOR TAYLOR gave some options that might deny the money
to the administration.
TAPE 93-17, SIDE A
Number 001
SENATOR TAYLOR thought they might be able to persuade the
governor through resolutions, legislation such as SB 56,
over-riding possible vetoes, or bring litigation. He gave
his preference as the retroactive clause, and expressed some
concern at the generalized meaning of the words "past due,"
on page 1, line 10 and 13.
REPRESENTATIVE BROWN explained, under present statute, taxes
are due when the assessment notice is sent, with a 60 day
period where conferences can be requested, and she explained
possible litigation for past due taxes.
SENATOR TAYLOR expressed concern that sending out a notice
of the amount of taxes due is an executive function, a
function abused in the past because there hasn't been proper
auditing.
Number 064
REPRESENTATIVE BROWN agreed the auditors have a great deal
of control over the whole process, but she said the
legislature was barely staying ahead of the Statue of
Limitations in the tax collection function, and she
suggested a way to become more current on the audits.
SENATOR TAYLOR suggested ways to motivate the administration
by changing the Statute of Limitations. REPRESENTATIVE
BROWN suggested a course of action for the coming year, but
SENATOR HALFORD objected to the definition of "available for
appropriation," because it is implied in the constitution.
SENATOR TAYLOR thought the only alternative would be to go
to the Supreme Court to ask for some definition.
REPRESENTATIVE BROWN had some problems with an opinion from
the Legislative Counsel limiting access to the
Constitutional Budget Reserve Fund.
SENATOR TAYLOR noted representation from the Attorney
General's office, and asked ATTORNEY GENERAL JAMES BALDWIN
if he wanted to testify for the record, since there
presently was not a quorum.
Number 171
MR. BALDWIN wanted to testify on a couple of points, and he
gave his view of past legislative history, including the
House being unhappy with the interpretation from the
Department of Law. He said they had agreed to arrive at a
legislative definition, based on some research from the
California Supreme Court placing heavy weight on statutes
interpreting a constitutional amendment there. He offered
to provide the committee citations from two cases from
California, which allows constitutional provisions by the
legislature to legislate in a particular area. In this
case, he thought there needed to be a sharper definition for
some of the fuzzier concepts in the amendment.
MR. BALDWIN said they were attempting to work with the
Legislative Budget and Audit Committee to come up with an
approach to the definitions. He claimed their opinion was
correct in the interpretation of "administrative
proceedings," and expressed pleasure at the effective date
as a compromise, which was clouded by the British Petroleum
compromise.
MR. BALDWIN reviewed the procedures for putting money into
the account and taking it out. He expressed his preference
for working on how the legislature take the money out of the
account, and he noted the key language on page 2, lines 8
through 16 and lines 11 through 14. He spoke of possible
accommodations in working with REPRESENTATIVE BROWN. He
criticized the bill for considering what isn't available for
appropriations, as a way of defining what is available for
appropriation.
MR. BALDWIN expressed some fears in relation to the Mental
Health Trust Funds, and SENATOR HALFORD asked about the
Science and Technology Endowment. He said their approach
was not to deplete the statutory funds before having access
to the budget reserve fund, but he claimed they had a more
positive approach.
Number 261
MR. BALDWIN discussed research material from media reports
and voter information, and he promised the committee some
wording to assist in changing lines 11 through 14 of page 2.
SENATOR TAYLOR said he had no further schedule on the bill,
but would like to have MR. BALDWIN'S amendments before the
end of the week to be circulated to the two prime sponsors.
He promised to bring the bill to committee for further work,
and he wanted an amendment on the effective date. He
expressed appreciation to MR. BALDWIN for his work.
SENATOR HALFORD reviewed the interpretation and suggested
there was more room in defining "revenue available for
appropriation." He approved of the most conservative view
of the legislation.
There being no further business to come before the
committee, the meeting was adjourned at 3:32 p.m.
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