Legislature(1995 - 1996)
01/31/1996 01:30 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
January 31, 1996
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
Senator Mike Miller
Senator Al Adams
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 30
Proposing amendments to the Constitution of the State of Alaska
relating to the budget reserve fund.
CS FOR HOUSE BILL NO. 127(JUD)
"An Act relating to penalties for certain offenses committed
against a peace officer, fire fighter, correctional employee,
emergency medical technician, paramedic, ambulance attendant, or
other emergency responders."
PREVIOUS SENATE COMMITTEE ACTION
SJR 30 - No previous Senate action.
CSHB 127(Jud) - No previous Senate action.
WITNESS REGISTER
Senator Steve Rieger
Alaska State Capitol
Juneau, Alaska 99811
POSITION STATEMENT: Sponsor of SJR 30
Brad Pierce
Office of Management & Budget
P.O. Box 110001
Juneau, AK 99811-0001
POSITION STATEMENT: Supports SJR 30
Representative Pete Kelly
Alaska State Capitol
Juneau, Alaska 99811
POSITION STATEMENT: Sponsor of HB 127
Barbara Brink
Public Defender Agency
Department of Administration
900 W. 5th Ave., Ste. 200
Anchorage, AK 99501-4399
POSITION STATEMENT: Testified on CSHB 127 (Jud)
Anne Carpeneti
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions on CSHB 127 (Jud)
Col. Glenn Godfrey
Division of Alaska State Troopers
Dept. of Public Safety
5700 E. Tudor Rd.
Anchorage, AK 99507-1225
POSITION STATEMENT: Supports CSHB 127 (Jud)
ACTION NARRATIVE
TAPE 96-4, SIDE A
Number 001
SJR 30 USE OF BUDGET RESERVE FUND
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:30 p.m. The first item of business was SJR 30.
SENATOR RIEGER, sponsor of SJR 30, responded to a previous question
raised by Senator Adams regarding the amount of money drawn from
the Constitutional Budget Reserve (CBR). He explained there was a
quantity of money drawn from the reserve, and a quantity not
deposited initially, which the court subsequently ruled should have
been deposited. The amount of that deposit for fiscal years 1991-
1994 is $1,055,000,000. The number of draws are itemized as
follow:
$390 million to cover the shortfall between revenues and
appropriations for fiscal years 1994 and 1995;
$130 million for reconstitution of the Mental Health
Trust;
$141 million to meet the effect of Art. IX, Sec. 17(d) of
the Alaska Constitution;
$68 million for the state's share of oil and gas litigation
from July, 1990 through February, 1994;
$11 million for the legal costs of oil and gas litigation in
fiscal year 1995.
The total amount is $1,702,978,690.
Number 051
SENATOR TAYLOR asked what the current balance of the CBR is. BRAD
PIERCE, policy analyst with the Office of Management and Budget,
stated the anticipated balance of the CBR, at the end of FY 96, is
$2.08 billion.
MR. PIERCE reiterated the Administration's support of SJR 30,
particularly the elimination of the sweep provision, which was
never intended to include accounts that were set aside by the
Legislature for specific purposes. The Administration also
supports repeal of the payback provision as it is a debt we owe
ourselves, and is something that must be explained to bond rating
agencies. It has become more of an administrative nuisance than
anything else. He requested the Legislature leave a clear trail
of the intent of SJR 30: the concern being that no one
inadvertently confuse the issue by replacing the term "available
for appropriation," which has been clearly defined by the court,
with the term "unrestricted revenue," and resulting in another
court challenge.
MR. PIERCE added the Governor would like clarification, in the
resolution, of when a supermajority vote would be required to draw
from the CBR, primarily in the context of how it would fit into an
overall fiscal plan. He stated the Long Range Financial Planning
Commission discussed requiring a supermajority vote to enable any
use of reserves independent of any other condition. He noted the
upcoming Joint State Affairs meeting during which the Long Range
Financial Planning Commission's resolution (identical to SJR 30)
will be reviewed.
Number 133
SENATOR TAYLOR asked what part of SJR 30, concerning the
supermajority vote provision, the Governor wants clarification of.
MR. PIERCE repeated the Governor would like to see it discussed in
the context of an overall fiscal plan.
SENATOR TAYLOR asked Senator Rieger if the intent of the
supermajority vote requirement in SJR 30 would be to require it
only when utilizing CBR funds to increase the budget. SENATOR
RIEGER said that was correct. He explained the context of the
original amendment, and the intent of SJR 30, was/is to provide a
mechanism to stop the temptation to increase spending when the
settlements, or the results of a determination of an administrative
proceeding, cause an unusual, one-time, influx of cash into the
general fund. In some respects, that money is like other revenue,
because it probably resulted from a tax case. Had it not been a
tax case, the money would have been received in small amounts
annually; instead it accumulated and was received in a lump sum.
To help restore it to how it should have come in, the money can be
used in a normal operating purpose, just as any other general fund
revenue is, but not to increase spending. This money can be used
to stabilize a spending plan, but not to increase spending without
a supermajority vote.
Number 169
SENATOR ADAMS asked if the Senate Finance Committee has developed
a financial plan for other Senators to review, and if so, how much
money will come from the CBR. SENATOR RIEGER replied he has not
drafted a financial plan. SENATOR ADAMS expressed concern about
getting the necessary 14 votes to pass SJR 30.
SENATOR TAYLOR asked Mr. Pierce if his request for clarification
was addressed sufficiently. MR. PIERCE explained that if the Rose
plan was adopted, which uses the CBR as the "fly-wheel" of a fiscal
plan for the future, the Legislature might want a different
requirement to access the CBR. He believed the Governor was
requesting more discussion in the overall context of fiscal
planning.
SENATOR TAYLOR indicated he was unaware of the subtle distinctions
between the Rose plan and the Long Range Financial Planning
Commission's plan. MR. PIERCE indicated the Rose plan would take
the unrealized gains from the Permanent Fund (a little over $2
billion), deposit those gains into the CBR, and use both the
interest from the earnings of the CBR, and the excess earnings off
the Permanent Fund not used for inflation-proofing or dividends,
for general fund spending to supplement oil revenues. That concept
might require different access to the CBR than what is proposed in
SJR 30.
Number 200
SENATOR ADAMS asked if the original purpose of the permanent fund
was to use the interest earned from the corpus to fund state
government, and whether the Rose plan would set up a similar fund.
MR. PIERCE replied that essentially a second permanent fund would
be created.
SENATOR TAYLOR inquired whether a supermajority would be required,
under the Rose plan, to access those funds even though less money
might be spent on the overall budget than the previous year. MR.
PIERCE stated Mr. Rose suggested a constitutional amendment would
be necessary to address the CBR but was not specific about how it
would work.
SENATOR TAYLOR asked where the current interest income from the CBR
is being placed, and who is responsible for the investment and
workings of the CBR. MR. PIERCE reported the interest is
reinvested into the CBR which is invested by the Department of
Revenue. OMB has projected a 6 1/4 percent rate of return on those
funds, which is about 1 percent lower than the Permanent Fund.
SENATOR TAYLOR questioned the lower rate of return. MR. PIERCE
stated the CBR is invested in shorter term instruments, and there
are more liquid assets.
Number 236
SENATOR TAYLOR asked why interest income from the CBR is not used
as ordinary income to the general fund. SENATOR RIEGER read
Section A of the original constitutional amendment, " Money in the
budget reserve fund shall be invested so as to yield competitive
market rates to the fund. Income of the fund shall be retained in
the fund." SENATOR TAYLOR questioned whether the interest income
would remain in the CBR under SJR 30. SENATOR RIEGER replied it
would, however he would welcome discussion on that policy.
Number 261
SENATOR MILLER moved SJR 30 out of committee with individual
recommendations. There being no objection, the motion carried.
HB 127 120-DAY JAIL: ASSAULT ON OFFICERS
REPRESENTATIVE PETE KELLY, sponsor of HB 127, gave the following
synopsis of the measure. The bill was created to do three things.
First it provides a tool to law enforcement officers to curb the
escalating level of violence against them by increasing the minimum
sentence for assaulting a police officer. The intent was to send
a clear message to those that would do violence to police officers.
The bill contains a 120 day minimum sentence for fourth degree
assault against a police officer. This bill provides similar
protection to firefighters, emergency medical technicians, and
other responders who are not trained to handle violent behavior.
The bill also attempts to correct a flaw in the sentencing
structure for class B and C felonies. Under current rules, a
first-time offender assaulting a person would receive a greater
sentence than a first-time offender assaulting a police officer.
This result is related to the Wiley and Austin Rules and was
designed to prevent double jeopardy.
Number 322
SENATOR ADAMS referred to lines 3-4, on page 3 of the proposed
committee substitute, and asked how the 120 day minimum was
determined in relation to the crime of fourth degree assault.
REPRESENTATIVE KELLY explained that a fourth degree assault charge
can include the use of threatening speech. When drafting the
measure, he felt the act of threatening speech should not carry a
120 day minimum sentence. In original discussions, he considered
changing fourth degree assault to a felony. After further review,
he decided to not attach the stigma of a felony for assaulting a
police officer in a heated situation.
Number 347
SENATOR TAYLOR asked Representative Kelly for a review of the
changes made in the proposed committee substitute. REPRESENTATIVE
KELLY stated the major difference is that the proposed committee
substitute addresses the behavior of threatening speech and
provides for a 30 day sentence, and repeals AS 12.55.125(d)(3) and
12.55.125(e)(3) which address the problem of double jeopardy.
Presently a judge cannot aggravate a sentence for a class B or C
felony, which results in a lesser sentence for assaulting a police
officer.
SENATOR MILLER moved adoption of the proposed committee substitute
(9-LS0501\U). There being no objection, the motion carried.
Number 374
ANNE CARPENETI, representing the Department of Law, responded to
Senator Adams' question regarding a definition of the term
"physical injury." She explained it is defined as "...a physical
pain or impairment of a physical condition." SENATOR ADAMS asked
if a person is intoxicated and accidently hits a police officer
while falling, whether that person could receive a 120 day
sentence. MS. CARPENETI replied that the activity must be proved
to be reckless. SENATOR ADAMS stated that would be the intoxicated
person's word against the officer's. MS. CARPENETI responded
affirmatively, if the police officer believed the action was done
recklessly, or with criminal negligence.
SENATOR ADAMS asked if the aim of this measure is to put more
people in prison for longer periods of time, in order to justify
building a new correctional facility. MS. CARPENETI replied she
was unaware of the sponsor's intent, and she did not have
statistics on the frequency of assaults on police officers with
her.
SENATOR TAYLOR noted a fiscal note in members' packets from
February, 1995. He added the committee substitute might reduce the
estimated cost since it reduces the minimum sentence for
threatening a police officer. He stated a new fiscal note would be
obtained.
Number 405
SENATOR GREEN asked for the definition of fourth degree assault.
MS. CARPENETI read the statute. SENATOR ADAMS requested a
comparison of the penalty for other crimes, such as shoplifting.
MS. CARPENETI answered that concealment of merchandise is a class
B misdemeanor; fourth degree assault is a class A misdemeanor.
SENATOR TAYLOR asked if the 120 prison sentence is a minimum
mandatory whereas the maximum sentence would be one year in jail
with a $5000 fine. MS. CARPENETI replied that is correct and is
the maximum sentence for any misdemeanor.
SENATOR TAYLOR indicated concern with the concept of mandatory
minimum sentences in general and felt it should be reviewed in the
near future. He noted, in his experience, those sentences are used
in cases that warrant longer sentences, and act to limit a judge's
discretionary ability.
Number 458
SENATOR GREEN asked if the minimum standard becomes the most usual
sentence imposed. SENATOR TAYLOR agreed. SENATOR GREEN asked if
there is another practical way to structure what the sponsor is
trying to achieve. SENATOR TAYLOR disclosed that he discussed the
problem with the sponsor, and does not know of a more efficient way
to address the problem.
MS. CARPENETI commented the only presumptive sentence currently in
statute for class B and C felonies, for first time offenses, is
that directed toward assault of emergency responders. One usually
does not get the same term for a first offense nonpresumptive as
for a second offense presumptive term. A class C felony carries a
presumptive term, for a second offense, of two years. For a first-
time class C felony conviction, if directed at a police officer,
the presumptive term is one year. If that offense is not directed
at a police officer or other emergency responder, there is no
presumptive term. However, the courts have held there have to be
special circumstances for the sentencing court to go beyond the two
year presumptive term for the second offense, when sentencing for
a first offense.
BARBARA BRINK, Deputy Director of the Alaska Public Defender
Agency, testified via teleconference from Anchorage. She expressed
concern with Section 3 which increases the mandatory minimum from
30 to 120 days. She did support other portions of the bill, for
example, adding a correctional employee, and eliminating certain
presumptives in Section 6, to allow a judge more flexibility in
determining what is appropriate in a particular case.
MS. BRINK elaborated on her concern with Section 3 and discussed
unanticipated results. More trials at the misdemeanor level will
occur, as well as more plea bargaining by the Department of Law at
that level, and there will be a disparate impact on the Alaska
Native population and Bush citizens. She stated it is an extreme
jump to go from a 30 day minimum sentence to a 120 minimum
sentence. A four month sentence is a long sentence for a
misdemeanor especially given the definition of physical injury.
That definition covers two types of assaults in the fourth degree.
The first type is recklessly causing physical injury. A person is
deemed to be acting recklessly if he/she is aware of a substantial
risk and disregards it, or if he/she is completely unaware of a
substantial risk because of intoxication. Many of the assaults
that arise in this category arise when police officers are dealing
with intoxicated people. The second broad category is negligently
causing physical injury by means of a dangerous instrument. There
are fewer of those cases.
MS. BRINK described a typical scenario in which a public defender
client is charged with assault on a police officer in the fourth
degree. It usually involves a highly intoxicated individual who
has not broken any laws and is not being arrested, but is being
placed in protective custody for their own safety. In Anchorage
the Community Service Patrol, a highly trained organization, deals
with these individuals and provides them with protective services.
In the more remote locations in the Bush, the VPSOs and local
police officers serve this function without the benefit of the
training and experience of the Community Service Patrol. They
approach the job with a more authoritative style and tend to be
more forceful. The intoxicated individual does not exercise good
judgment and may not understand what is going on. The situation
may escalate with the individual flailing their arms or shouting,
etc. Those types of behaviors could result in a conviction of
assault in the fourth degree since those individuals are not being
charged for resisting, since they were not being charged with any
crime to begin with. Therefore, until they had contact with the
police, they had not committed a criminal act, yet may be facing a
mandatory minimum sentence of four months in jail. She stated
those people are more likely to go to trial, or the State of Alaska
is going to be more likely to engage in plea bargaining. She
polled her offices to discuss these types of assaults, and
universally found that very often it is a demonstrable attitude on
the part of an officer that can result in a problematic situation.
She added that in the experience of public defenders in bush
Alaska, white people rarely get placed into protective custody.
Also, in every community there are one or two police officers that
are assaulted more often than others. The statute, as currently
written, already has enough flexibility to address situations in
which an offender deserves more than 30 days.
Number 555
SENATOR ADAMS asked if including the word "up" after "sentenced" on
page 3, line 2, would help. MS. BRINK replied it might create some
confusion since it would establish a minimum but allow a judge to
go under it.
Number 568
COL. GLENN GODFREY, Director of the Division of the Alaska State
Troopers, testified in support of SCSHB 127 (Jud). This bill will
give police officers, and other emergency responders, additional
support in their public safety efforts, during one of the most
critical times of their job. This bill sends a clear message to
the first responders that they are supported by the public they
serve and a clear message to offenders that acts of violence
against emergency responders will be dealt with seriously. The
timing of this bill is quite appropriate based on the following
statistics on all assaults against state troopers: in 1992 there
were 66 assaults; in 1993 there were 61 assaults; in 1994 there
were 66 assaults; and in 1995 there were 91 assaults. This
noticeable increase is cause for great concern. In remote areas
where there is no back-up for VPSOs, any support they can get to
prevent assaultive behavior from escalating or reoccurring, gives
them and the public served extra protection. Based upon his
experience, when an assault on an officer is not of a serious
nature, district attorneys are quick to scrutinize those cases and
the charge is not pursued. The same holds true in isolated
situations in which an officer might be more aggressive than
necessary. The Alaska State Troopers strongly support the bill as
it is consistent with the Division's enforcement priorities and
programs. The bill will have little effect, and no fiscal impact,
on the Alaska State Troopers or related programs.
TAPE 96-4, Side B
Number 577
SENATOR ADAMS inquired whether Col. Godfrey could delineate how
many assaults were in the fourth degree. COL. GODFREY replied
approximately one-third of the 91 assaults in 1995 were assaults in
the fourth degree. In 1995 there were 8 assaults in which a gun
was used; 15 assaults in which another weapon was used; 34 assaults
were aggravated with no weapon; and 34 assaults were non-aggravated
with no weapon. In 1995, VPSOs responded to 60 incidents involving
the use of force of which 36 of those incidents were assaults on
VPSOs.
Number 564
SENATOR ELLIS asked Col. Godfrey to comment on Ms. Brink's remarks
about the difference between officers who escalate an incident, and
other types of professionals who defuse a situation. He asked if
those officers are disciplined. COL. GODFREY replied that a vast
majority of police officers do deal with such incidents in a
professional manner and calm the situation, however, like in any
other organization, there are employees who have to be counseled
and disciplined. He believed those to be isolated incidents, and
district attorneys statewide are aware of those situations.
SENATOR ELLIS asked if psychological profiles are conducted during
the screening process to try and eliminate those types of people
before they receive training. COL. GODFREY responded
affirmatively, and added one of the areas people are commonly
rejected for is assaultive or aggressive behavior.
Number 538
SENATOR ELLIS inquired whether any state troopers have been
dismissed for a record of aggressive behavior. COL. GODFREY
responded that state troopers have been dismissed for disciplinary
reasons, and in isolated incidents, have been criminally charged
for assault.
SENATOR ADAMS asked MS. BRINK and COL. GODFREY whether the 120 day
sentence fits the crime. COL. GODFREY felt the 120 day sentence to
be appropriate especially in light of the increased number of
assaults on emergency responders. Anytime a state trooper takes any
type of forceful action against a citizen in the State of Alaska,
they are required to fill out a "use of force" form which is
reviewed carefully and requires three signatures. MS. BRINK
responded that 120 days is too long for the average crime, and
leaves to the discretion of police officers, troopers and district
attorneys whether to charge a person with this crime when
unwarranted, since the behavior may fit the technical definition of
the crime. She repeated her support for the 30 day sentence since
a 30 day sentence is much greater than what is typically imposed as
a sentence of the same type against an ordinary citizen.
Number 493
SENATOR ELLIS referred to Representative Kelly's statement about
the deterrent value of increasing the sentence for fourth degree
assault. He asked how realistic it is to expect those people who
may be intoxicated or in the middle of a domestic violence
altercation to take into consideration an increased mandatory
minimum sentence before erroneously swinging at an officer.
REPRESENTATIVE KELLY replied the police officers he spoke with were
not as concerned about those types of incidents as they are about
the nature and extent of assaults that seem to be increasing. Most
police officers use some discretion, when someone is flailing their
arms. In cases where people are incapacitated or out of control
emotionally, the lesson should be to deal with substance control or
emotional control.
SENATOR ELLIS wondered how word of the increased penalty would get
out. REPRESENTATIVE KELLY responded that laws are passed daily,
and the public is informed through the media, police officers, and
the court itself. SENATOR ELLIS stated his concern lies with the
fact that people will serve longer sentences, rather than
addressing the problem of substance abuse.
Number 450
COL. GODFREY commented the deterrent effect will be realized in
rural communities when a person, who others witness as assaultive,
is charged and sentenced.
SENATOR ADAMS requested a three day delay on the bill in order to
review Section 3 further, and to research sentences for other
fourth degree assaults.
REPRESENTATIVE KELLY stated that considering the amount of concern
about the 120 day sentence, he would be willing to work on
alternatives, if necessary, with the interested parties.
SENATOR TAYLOR announced SCSHB 127 (Jud) would be scheduled during
the next week. Committee members then discussed the committee's
policy on departmental position papers. The meeting was adjourned
at 2:35 p.m.
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