Legislature(1997 - 1998)
02/26/1997 01:40 PM Senate JUD
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* first hearing in first committee of referral
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SENATE JUDICIARY COMMITTEE
February 26, 1997
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Drue Pearce, Vice-chair
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HOUSE BILL NO. 120
"An Act relating to the power of the attorney general to waive
immunity from suit in federal court; and providing for an effective
date."
PASSED HB 120 OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 3
Proposing an amendment to the Constitution of the State of Alaska
limiting the rights of prisoners to those required under the
Constitution of the United States.
PASSED CSSJR 3(JUD) OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR SENATE JOINT RESOLUTION NO. 10
Proposing amendments to the Constitution of the State of Alaska
relating to the election and the duties of the attorney general.
HEARD AND HELD
SENATE BILL NO. 67
"An Act relating to the imposition of criminal sentences; and
amending Rule 32.2, Alaska Rules of Criminal Procedure."
PASSED CSSB 67(JUD) OUT OF COMMITTEE
SENATE BILL NO. 41
"An Act relating to environmental audits and health and safety
audits to determine compliance with certain laws, permits, and
regulations."
HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
HB 120 - No previous Senate committee action.
SJR 3 - See Senate Judiciary minutes dated 2/5/97 and 2/19/97.
SJR 10 - See Senate Judiciary minutes dated 2/19/97.
SB 67 - See State Affairs Committee minutes dated 2/04/97.
SB 41 - See Senate Labor & Commerce Committee minutes dated
1/23/97, 1/28/97, and 1/30/97 and Senate Judiciary
Committee minutes dated 2/24/97.
WITNESS REGISTER
Representative Bill Hudson
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 120
Joanne Grace
Assistant Attorney General
Department of Law
1031 W 4th Ave., Suite 200
Anchorage, AK 99501-1194
POSITION STATEMENT: Supports HB 120
Senator Dave Donley
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of SJR 3
Dean Guaneli
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Commented on SJR 3
Tuckerman Babcock
Legislative Assistant
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for Senator Green, sponsor of SJR 10
Jim Baldwin
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified against SJR 10
Justice Thomas Stewart
Alaska Court System
P.O. Box 114100
Juneau, AK 99811-4100
POSITION STATEMENT: Testified against SJR 10
Justice S.J. Buckalew, Jr.
3124 Antioch Circle
Anchorage, AK 99508
POSITION STATEMENT: Testified against SJR 10
Paul Sweet
P.O. Box 1562
Palmer, AK 99645
POSITION STATEMENT: Commented on SB 67
Margot Knuth
Assistant Attorney General
Department of Corrections
240 Main St., Suite 700
Juneau, AK 99801
POSITION STATEMENT: Commented on SB 67
ACTION NARRATIVE
TAPE 97-13, SIDE A
Number 00
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:40 p.m. Senators Miller, Parnell and Taylor were
present. The first matter before the committee was HB 120.
HB 120 STATE IMMUNITY FROM SUIT IN FED COURT
SUSAN COX , Chief of the Civil Division, Department of Law, noted
her presence and offered to answer any questions the committee may
have on the tort aspect of HB 120.
REPRESENTATIVE BILL HUDSON , sponsor of HB 120, gave the following
overview. He introduced HB 120 in concert with the Department of
Law and other legal counsel because the State of Alaska is
presented with a rare opportunity to improve its situation in two
pending court cases. The Eleventh Amendment to the U.S.
Constitution prohibits suits against states in federal court from
damages brought by citizens of that state but on occasion it is
procedurally advantageous for a state to waive its Eleventh
Amendment immunity to have a case heard in federal court. The
Attorney General may waive the State's immunity only by express
authority of the Legislature; HB 120 provides that consent. There
are two such cases before the State at this time. The first case
is Peratovich v. United States where the State is asserting
tideland ownership in the Tongass National Forest. This case
creates a prime opportunity for the State to assert that ownership,
but absent its ability to get into the federal court case, the
State has no standing. The second case is the Smith v. State and
Melba Joseph et.al. v. State in which the State has been sued by
approximately 150 residents of Hooper Bay because of excess floride
in Hooper Bay's public water system. In this case, a fair
allocation for apportionment of tort claims against both the
federal and state governments can only occur if the case is heard
in federal court, because the federal government can only be sued
in federal court. The purpose of HB 120 is to allow the Attorney
General flexibility to favorably position the State in these two
lawsuits.
CHAIRMAN TAYLOR commented he has discussed this case thoroughly
with Joanne Grace and appreciates the opportunity available to the
State. He has been assured by Ms. Grace the Administration, for
some political reason, will not bail out on this case after getting
it started.
Number 100
JOANNE GRACE , Assistant Attorney General, testified she believes
the State will prevail in the tidelands case because it has a very
strong case for ownership of submerged lands. If the Department of
Law was able to bring suit directly against the United States, it
would do so immediately but in light of jurisdictional problems, it
would like to use this case as a vehicle for litigation.
CHAIRMAN TAYLOR asked, if the State were to take corporate lands
conveyed to one of the regional corporations under ANILCA that abut
the waters of Southeast Alaska, whether a conflict with sovereignty
claims extended to those lands would exist, as opposed to the
claims the State may make on lands adjacent to those properties.
MS. GRACE did not believe that would be a problem as to tidelands
in territorial sea, because when the United States conveys the
uplands abutting those areas, it doesn't generally purport to
convey the tidelands or the territorial sea. That is not true,
however, of the inland waters in the Tongass. If the United States
takes the position that it has defeated the State's title to the
inland waters in the Tongass, then those waters, navigable, or non-
navigable, would be owned by Native Corporations and could be
subject to Indian Country sovereignty claims. This case will only
address tidelands in territorial sea. If the State prevails on
tidelands in territorial sea, it will help the State's position on
inland waters as well.
Number 141
SENATOR PARNELL said he was considering amending the title of HB
120 to maintain the narrow focus and prevent any mischief by the
Legislature. CHAIRMAN TAYLOR reminded Senator Parnell it is a
house bill.
SENATOR MILLER moved CSHB 120(JUD) out of committee with individual
recommendations. There being no objection, the motion carried.
SJR 3 PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS
SENATOR DAVE DONLEY , sponsor of SJR 3, stated the latest proposed
committee substitute makes crystal clear that this measure impacts
only the rights of prisoners convicted of crimes. Regarding the
Department of Law's question as to whether, by modifying the
existing criminal administration section of the Constitution, other
types of ancillary rights might be granted, he said creating
separate sections clarifies the intent of the legislation.
Number 191
SENATOR MILLER moved to adopt CSSJR 3(JUD), version 0-LS0268\F, as
the working draft. There being no objection, the motion carried.
DEAN GUANELI , Assistant Attorney General, agreed with Senator
Donley's assessment that the new version of SJR 3 is cleaner
regarding the rights of prisoners. He cautioned committee members,
however, not to expect passage of this legislation to automatically
overturn the Cleary settlement. CSSJR 3(JUD) may establish one
more reason for the Court to give relief from judgment under the
Civil Rules, but it does not guarantee that result. Given that the
State is in contempt of the Cleary settlement, it is in a weak
position to argue for relief and even if the State did get relief
from the Cleary order, it would only mean the State would be back
in the litigation mode.
SENATOR MILLER moved CSSJR 3(JUD) out of committee with individual
recommendations. There being no objection, the motion carried.
SJR 10 ELECTION OF ATTORNEY GENERAL
TUCKERMAN BABCOCK , legislative aide to Senator Green, sponsor of
SJR 10, told committee members he was awaiting a draft committee
substitute to propose for the committee's consideration, as well as
several amendments suggested by Mr. Chenoweth of the Division of
Legal Services.
Number 280
JIM BALDWIN , Assistant Attorney General, noted he asked Judge
Stewart and Judge Buckalew, delegates to the Constitutional
Convention, to address the committee on the constitutional debate
on the election of the attorney general. He also provided, to
committee members, a full transcript of the debate at the 1956
Convention about whether to establish positions of an attorney
general and secretary of state in Alaska. He highlighted other
aspects of the memorandum he sent to committee members in the
following testimony.
MR. BALDWIN stated the fiscal note is speculative and reflects the
way the resolution was drafted. The biggest cost item stems from
the fact the Attorney General's Office would be required to provide
legal representation for all public corporations of the State,
including the University of Alaska and the Alaska Railroad
Corporation. To estimate costs, he spoke to officials in
Washington State to determine how things might operate in Alaska if
the attorney general is elected. SJR 10 proposes the attorney
general share the general election ticket with the governor and
lieutenant governor, however that does not prevent some differences
of opinion between the individuals involved. In Washington State,
some very closely held executive functions, now exercised by the
attorney general on behalf of the Governor, such as bill drafting
and clemency matters, have devolved upon an in-house counsel in the
Governor's Office. The standard cost of a senior level attorney is
about $150,000, including support and benefits. If this kind of
situation was to be further multiplied because other principal
department heads had philosophical differences with the attorney
general, the cost would increase substantially. Also, several cost
items are not reflected in the fiscal note because they cannot be
quantified.
MR. BALDWIN pointed out the attorney general would be responsible
for not only civil and criminal matters under SJR 10, but also
infractions and violations. Currently, that function is delegated
to lay personnel in other departments. If district attorneys had
to represent the State in those matters, a tremendous expense would
be incurred. In summary, Mr. Baldwin stated the Department of Law
does not support SJR 10.
JUDGE THOMAS STEWART gave the following testimony.
JUDGE STEWART: Gentleman, this is a subject that I've contemplated
and been concerned about for at least 50 years and in the
course of that time I have become adamantly opposed to the
idea of electing the attorney general. In order to express
adequately my views, it's desirable to go back to the very
roots of the scheme of American government, both state and
national: the idea of three separate branches with checks and
balances among and between them. I propose to address the
subject at several levels: the basic theory; Alaskan
governmental history; personal and practical experience with
the alternative systems; leading opinions of prominent
students of the subject; observation on consequences of such
a scheme; explanations of examples from other states; and
miscellaneous observations.
The basic theory is set out in The Federalist, in the papers
written by Alexander Hamilton, primarily No. 70, dated March
18, 1788.
"There is an idea, which is not without its advocates,
that a vigorous executive is inconsistent with the genius
of republican government. The enlightened well wishers
to this species of government must at least hope that the
supposition is destitute in foundation; since they can
never admit its trials without at the same time admitting
condemnation of their own principles...."
It is worth noting that word "republican" with a small "r".
Ours is a government of representatives, not a true democracy,
which would be like a New England town meeting, where all the
townspeople gather to discuss and vote on the issues.
Obviously, this is not possible at the national level, nor in
large cities, nor in the whole State of Alaska. The critical
complex decision, such as on the structure of the executive
branch, must be made by the representatives of the people, and
that is you. (Judge Stewart continued reading from The
Federalist.)
"...Energy in the executive is a leading character in the
definition of good government. It is essential to the
protection of the community against foreign attacks: it
is not less essential to the steady administration of the
laws, to the protection of property against those
irregular and high-handed combinations, which sometimes
interrupt the ordinary course of justice, to the security
of liberty against the enterprises and assaults of
ambition, of faction and of anarchy.
A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for
a bad execution: and a government ill executed, whatever
it may be in theory, must be in practice a bad
government.
The ingredients which constitute energy in the executive
are unity - duration - and adequate provision for its
support - competent powers. The ingredients which
constitute safety in the republican sense are, a due
dependence on the people - a due responsibility.
Those politicians and statesmen, who have been the most
celebrated for the soundness of their principles, and for
the justness of their views, have declared in favor of a
single executive and a numerous legislative. They have
with great propriety considered energy as the most
necessary qualification of the former, and have regarded
this as most applicable to power in a single hand; while
they have with equal propriety considered the latter as
best adapted to deliberation and wisdom, and best
calculated to conciliate the confidence of the people,
and to secure their privileges and interests.
This unity may be destroyed in two ways; either by
vesting the power in two or more magistrates of equal
dignity and authority; or by vesting it ostensibly in one
man, subject in whole or in part to the control and
cooperation of others, in the capacity of counsellors, to
him. Of the first, the two counsels of Rome may serve as
an example; of the last we shall find examples in the
constitutions of several of the states."
The Constitutional Convention delegates debated this issue
intensely. It was the single focus of the committee on the
executive branch. In addition, the full Convention itself
intensely scrutinized it for at least one full day. Committee
debates during the Convention could not be recorded, therefore
Mr. Baldwin's transcript is of the debate by the full
Convention. The delegates were lead by George McLaughlin who
said:
"The blunt fact is that there is a general misconception
as to the function of the attorney general. The attorney
general is a lawyer and his opinion is the equivalent of
any other lawyer's. It can be attacked. Any
recommendation he makes, if acted upon, can always be
attacked in the courts by private citizens. His opinion
is barely worth the paper it is written upon. It's
impressive upon the state and the officials are bound by
it until some irate taxpayer attacks it and the actions
taken under the authority of it, and the courts can
promptly overrule it."
The concept of an attorney general's opinion must not be
confused with a judicial opinion. A judicial opinion covers
two sides - and reviews adversarial treatment of an issue, and
is binding. That does not happen in an AG's opinion - no one
is bound by an attorney general's opinion.
There is a good example of the exercise of energy by the
Governor. Alaska spent millions pursuing tax claims against
oil companies. Governor Hickel and Attorney General Cole
settled those cases through an energetic exercise of
authority. That kind of energy would be frustrated if the two
positions were at odds. The decision to settle was a policy
decision, and a loyal attorney general executed it for the
Governor.
The Governor is the person charged by the people to fix and
carry out state policy. The Governor is accountable to the
people. An elected attorney general could undercut the
Governor and hinder his ability to execute policy. If an
attorney general cannot support the governor's policy, he must
resign.
There are many authorities opposed to electing the attorney
general. Thomas Dewey, a friend of Ernest Gruening, was
defeated by Harry Truman in 1948. He came to Alaska to visit
Gruening and knew statehood was sought. His advice was, from
his experience as Governor of New York, "Whatever you do, do
not elect the attorney general." Jay Hammond is adamantly
opposed to the election of the attorney general. Recently, he
was my houseguest for several days, and we discussed this
matter. He said that although he was a Republican, he
appointed Av Gross, a Democrat, as Attorney General, knowing
of his abilities. Republicans objected, but Gross was one of
the best of the attorneys general.
There is a good analogy. A corporation, such as IBM, hires a
CEO to fix and carry out the policies of the Board of
Directors. The CEO can be likened to the Governor, while the
Board of Directors to the Legislature, and the stockholders to
the general public. If the chief counsel to the CEO were to
be elected by the stockholders, it wouldn't work because
stockholders are simply not able to determine who should be in
that position. We have this big enterprise of the State. To
have its chief counsel elected by thousands upon thousands of
people who can't possibly know the merits of the individual
candidates for elected attorney general could not possibly be
a reliable determinant of who ought to be the Governor's
counsel.
I hear it said, "But there are 40 states that elect the
Attorney General." In order to understand that, we need to
look at history. Those provisions were put there in the 19th
Century. It may be that there are one or two in the early
part of the 20th Century, but the modern Constitutions of the
20th Century do not do that, because they have the benefit of
hindsight and saw the problems that evolved from this kind of
a governmental structure. Probably the leading Constitutional
Convention was that of New Jersey, which I think was in 1946,
and New Jersey did exactly what we subsequently did, and
structured an executive branch with a single unified head who
can choose who should be his associates and who then is held
accountable, responsible to the electorate for what he does.
As I said earlier, it's a mistaken notion somehow of democracy
- that somehow the people are going to get a representation
that is more democratic - small "d" - if they elect the
attorney general. Believe me, it's not so. That's a failure
to understand the role of the attorney general. Citizens from
the street can't go in and ask the attorney general for an
opinion. He would say, "That's not my job." Surely, he
represents the people but he only does that through his boss,
the Governor, who likewise represents the people, more broadly
than he does.
There's another aspect to it. If you elect the attorney
general, that cuts across the entire spectrum of the executive
branch. It affects the opinions that are given to each and
every department, each and every functionary in the executive
branch. When I was an assistant attorney general - there were
two of us at the time - a gentleman named John Dimond and I
were the assistant attorneys general. And we saw our boss, J.
Gerald Williams, interpose his own policy ideas, inject them
into the operations of the departments he was giving advice
to, without any regard for what the Governor's ideas might be
on that subject. Such a person is just as likely to adopt his
own ideas, his own philosophy, and be no more representative
of the people than the Governor is.
There's a corollary to this that I don't know whether you've
ever looked at. The history of Alaska, the government of
Alaska, has been that the Legislature looks to the Attorney
General for opinions. I'm here to suggest to you that that's
wrong. You should have your own counsel. The Senate should
have its own counsel; the House should have its own counsel,
because sometimes the ideas of the Senate and the ideas of the
House are not commensurate. You need independent legal
advice. You should not be looking to the opinions of the
attorney general as your authority on the law that you want to
deal with. Even if you don't create a full time position,
even if you only had contract counsel, you should have counsel
whose loyalty is to you as his client. Any of you that have
reason to consult with attorneys know that your attorney must
be loyal to you, and this proposition, this SJR 10, would
render the Governor having an attorney who is not loyal to
him, and that simply doesn't work. It would be, in my view,
one of the single most damaging things that you could possibly
do to the structure of our state government, which I think has
been highly successful since we became a state in 1959. That
would be disrupted forever.
It's not the kind of a proposition you can put out to the
people. We have a republican form of government. It's your
responsibility to make this decision. It's the kind of thing,
maybe I have suggested to you, the degree of sophistication,
historical knowledge, philosophical concepts, if you will,
that are required to penetrate this maze, to get beyond that
simplistic, naive statement: the attorney general represents
the people. Surely he does, but through the medium of his
governor, not directly. This kind of a proposition, as I say,
put out to the voters at large; how can you adequately explain
it? The newspapers wouldn't do it for you. The Anchorage
Times had an editorial on this proposition about three weeks
ago and I read it, and I became immediately, deeply concerned.
It's come up not infrequently over the last 35 years.
I happened to get well acquainted with a gentleman named Bill
Allen, who is the CEO of VECO, also the owner of the Anchorage
Times. I called - (I sat with him through several days of
meetings on the Governor's Advisory Task Force on Tort Reform
during the fall). I had never known him before but I got
acquainted with him, so I called him and said, "Bill, I need
to talk with you about this editorial. I think that you may
not really understand all of the implications of what's being
proposed." And so I have an appointment to sit down with him
next Monday. I hope to enlighten him a little bit on all
that's involved here.
There's another danger, and having sat, as you people do, on
a legislative committee, I'm extremely sensitive of it, and
aware of it. This proposition goes to the very heart of the
structure of our government. You cannot possibly adequately
consider it (unless you reject it, as I hope you do) in the
course of an afternoon, in the course of listening to two or
three bozos like me. You cannot just talk about it. It
requires careful thought and study.
Let me divert for a moment. About four years ago, a little
more than four years ago, there was a proposition put before
the Legislature, to amend the Constitution by the initiative.
This, likewise, was deeply disturbing to me because
initiatives do not get the crucible of treatment that you
people are able to give to legislative measures. You get bad
law from the initiatives. You get bad constitutional
amendments. Look at the Budget Reserve amendment. Have you
tried to read that and make sense of its language? That's the
kind of thing that emanates from inadequate, surface treatment
of this kind of a subject. Ramona Barnes was the Speaker at
the time that was introduced, and she asked Gail Phillips, and
me, and a gentleman from Anchorage named Ken Jacobus, and Fran
Ulmer, who was the Minority Leader of the House at the time,
and I think there was maybe one other person, to sit on a
committee to advise the Legislature what they should do about
this proposal to amend the Constitution by the initiative.
And we spent - this committee spent - a lot of time
considering that, and we came up with a recommendation. I'm
not suggesting that you take up that subject again, but I do
think that you might be interested in the recommendation that
we made, and that is that if there is a proposition like this,
seriously to amend the constitution, that it should never be
acted upon by the first session of the Legislature. It should
be referred to, if you will, an ad hoc committee, or maybe a
standing committee if you want, to consider in the interim,
between the two sessions. Take it to the public, study it,
scrutinize it in depth. Don't act upon it until the second
session of the Legislature. If you have inclination to move
this forward, and I hope you don't, I would suggest that you
consider that kind of an approach in order that it get truly
in-depth consideration and treatment before you willy-nilly go
into restructuring what I think has been a pretty successful
state government.
I've talked too long, but I hope, maybe, I might have given
some insight that might not ordinarily appear to the people
that, I think, are making a shallow motion, here, as it were -
- haven't really looked into what the history has been. Can
you imagine the uproar that would occur if it were proposed on
the national level - to elect the attorney general of the
United States - to the President - an attorney that was not
loyal to his program? There's no more reason to elect our
attorney general than there is to elect the Attorney General
of the United States. When Hamilton wrote what I quoted to
you, and I think it's well worth your time to read The
Federalist paper #70, if you really want to understand the
concepts that went into this. The sound foundation for our
executive branch was laid. We should not abandon it. Thank
you.
SENATOR TAYLOR: Thank you Judge Stewart, I appreciate you being
here. I know, because you and I have discussed this many
times in the past, your comments and thoughts have always
been, and are, mine on this subject, and I know you were
disappointed to see my name there as a co-sponsor. And I
share the reverence that you have for the framework of our
government and the work that our forefathers put into it, and
you specifically put into it. However, Judge Stewart, in my
wildest dreams, I never would have conceived of electing a
governor, who by slight of hand, would prevent a Legislature
from exercising its power of confirmation. That's another
significant power that we have over the Governor's selection
of an attorney general, and that did occur. And then to
watch, and have that Attorney General appear before both joint
house and senate committees, and individual committees, and
admit that cases significant to the organic base of this
State, the very Constitution that protects him, and the
Attorney General, and to admit that those cases were
dismissed, or claims not brought solely for political
purposes, so motivated me that I introduced legislation over
the last two years to create what I called a Constitutional
Defense Council - a group of people, that when and if the
Governor and his Attorney General abandon our State
Constitution, that they could step in and act to protect that
document. I figure that was kind of a halfway ground, at
least, that might pick up, what I would hope would be rare
instances. And I submit to you that this measure will do the
damage that you are suggesting. I don't doubt that, but our
constitutional framework in this State, in my opinion, all of
that hard work that was done, and all of its predecessors,
were based upon an assumption that the people who occupied
that position would have integrity toward the office and the
Constitution they were sworn to protect. You made reference
to a statement that an Attorney General, finding himself in a
compromising position between the Constitution and his
Governor, should resign. And I submit to you that's correct.
People of integrity would resign rather than dismiss cases for
political purposes. Instead, I find today our Constitution is
being used as a shield and a mirror in what appears to be a
tragic game of smoke and mirrors where the Governor hides
behind the AG and the AG hides behind the law. As a former
attorney general told me, specifically, he said the current
Attorney General loves his job more than he loves the
Constitution and that frightens me greatly. I remember
arguing these points with Dick Randolph, who almost 20 years
ago, was trumpeting around the State with basically the same
concept and I was going out front and carrying some of the
same arguments that you've carried so beautifully before the
committee today. But for those actions, I would never even
have contemplated this desperate step because I consider it a
very desperate step. And yet, to suggest that this Governor
and this Attorney General will somehow be held accountable -
I don't know how much more of our constitutional framework we
can afford to have sold down the drain in one federal court
case after another or how much of it will even be retrievable
by the next Administration. How many of these decisions will
become precedent against our State as we attempt to exercise
the very same framework of concepts that we had. There was
testimony given by this Governor before bodies of Congress in
just the last year where he pledged that he would not bring
any suit against Congress should they destroy the 90/10 split
- one of the most organic concepts that this State was based
upon in its relationship with the federal government. How
long could you allow that forfeiting of that exercise of this
State's rights to go on before [indisc.] is attached, before
precedent is developed to the extent where no future governor
could ever go back and revisit that and attempt to protect the
future heritage of the State? I don't know - I don't know the
answers to those questions. I consider this desperate action.
I really do, and I keep in mind your comments and I really
thank you so much for taking the time you have today to bring
those words to us because I don't do this, or don't suggest
this form of legislation lightly, but I am fearful of where we
will be without it should we ever elect similar people to
office.
JUDGE STEWART: I can't argue with you about the particular cases.
I'm not familiar with them. I'm surprised if there weren't
some judicial remedy, if indeed the Attorney General, or the
Governor, is violating those constitutional concepts.
SENATOR TAYLOR: I think there is, but I think the only judicial
remedy that is left at this point is also a desperate act, and
that would be impeachment.
JUDGE STEWART: And then I would say if you were to do this, this
carries on...
SENATOR TAYLOR: much longer than an impeachment would - I
appreciate it.
JUDGE STEWART: I'd be glad to answer any questions if ...
SENATOR TAYLOR: Are there any questions? Yes, Senator Parnell...
SENATOR PARNELL: I think I just would join you and speak for the
committee in saying that you have provided some of the most
thoughtful and most clear testimony of anybody I've ever heard
in these committee rooms and I just want to say thank you and
we appreciate hearing you.
JUDGE STEWART: I appreciate your consideration.
SENATOR TAYLOR: We have another very dear old friend of the law on
the line - Judge Buckalew - you've been very patient.
JUDGE BUCKALEW: I have nothing to add. Tom Stewart did a
magnificent job, he's a real scholar and I'm perfectly
satisfied with the record as is, and I can't improve on it,
and I'm overparked. It's nice hearing from you, Tom. That
was a great job.
SENATOR TAYLOR: Seeborn, you run and catch your car and thank you
ever so much and appreciate those good comments. Tuckerman,
you are batting clean-up, I guess at this point. That's the
only other witness I had. Did you ...
SENATOR MILLER: It's kind of like following a kid's act or an
animal act - you don't win.
CHAIRMAN TAYLOR: It's my understanding you had some amendments
being prepared. Did they arrive?
MR. BABCOCK: Yes, Mr. Chairman, they did, and I gave to your staff
the amendments that are incorporated what might be considered
as a committee substitute, should the committee so desire.
CHAIRMAN TAYLOR: If you wouldn't mind, what I would like to do at
this time is, I will hold the bill until a future hearing -
hopefully after we return from this five-day recess we'll
bring you up first. By that time we can have a committee
substitute prepared that you can work on staff with, and then
go through those amendments with us and we can provide for
further discussion because I realize that you were hit with a
pretty good load there today and I want to give you a chance
to respond or bring in such witnesses as you want to respond
to that.
MR. BABCOCK: Thank you Mr. Chairman. I certainly appreciate the
testimony from such an honorable and venerable Alaskan as
Judge Stewart and I am in no hurry - Senator Green is in no
hurry to have this committee act injudiciously, or more
quickly than necessary so I appreciate the added time to
discuss with the committee, and with committee staff, the
proposed amendments to this constitutional amendment.
There being no further testimony on SJR 10, CHAIRMAN TAYLOR
announced SJR 10 would be held in committee until further notice.
The committee took a brief recess.
SB 67 TRUTH IN SENTENCING
VICE-CHAIR PEARCE called the meeting back to order at 2:57 p.m. an
announced SB 67 was next on the agenda.
SENATOR RICK HALFORD , sponsor of SB 67, explained the proposed
committee substitute, which he supports, includes an amendment by
the Court System to clarify that the bill is asking judges to
determine approximate dates of release that cannot be used against
the Court System regarding accuracy, and a new Section 1 which may
provide for the capture of federal funds. SB 67 requires, at the
time a judge imposes a sentence, he/she estimate how much time will
actually be served. That hearing is when the victims and/or family
are most likely to be present.
Number 396
SENATOR PARNELL asked about Section 1. SENATOR HALFORD repeated
that section pertains to the capture of federal funds in regard to
how Alaska sets sentences.
VICE-CHAIR PEARCE asked about the new fiscal note. SENATOR HALFORD
replied CSSB 67(JUD) has a positive fiscal impact of about
$617,000.
SENATOR MILLER moved to adopt CSSB 67(JUD) (version 0-LS0137\K) for
discussion purposes. There being no objection, CSSB 67(JUD) was
adopted.
PAUL SWEET , testifying via teleconference from Mat-Su, asked
whether appeals will affect this bill. VICE-CHAIR PEARCE responded
at the time of sentencing, the judge does not know whether an
appeal will occur. Although everyone is aware of problems with
abusing the appeal system, SB 67 does not address that issue.
MARGOT KNUTH , representing the Department of Corrections, informed
committee members several years ago the federal government
instituted a truth in sentencing intensive grant program which
makes funds available to states for prison construction and
expansion. The program has two components: truth in sentencing;
and a requirement that states actually impose at least 85 percent
of the period of incarceration. Alaska has not been able to
qualify for those funds because it has a mandatory good-time
provision that allows up to one-third of the sentence to be served
on supervised release for felons, or any case with a sentence
longer than two years. If the sentence is less than two years,
mandatory good-time means early release for the prisoner. Good-
time can be lost for disciplinary infractions within the
institution. The federal government has recently decided that
requiring states to keep prisoners incarcerated for a full 85
percent of their sentences is hardly affordable for most states.
Consequently, it has recognized several different exceptions to the
85 percent requirement. One, the Minnesota exception, provides
that the sentence be defined to exclude any statutorily required
supervised release periods. For Alaska's violent offenders, that
would amount to the "good time" because they are spending more than
two years incarcerated and are not being released on discretionary
parole. Alaska might now be able to meet that requirement, but
needs a language change to bifurcate the sentence, which is what
Section 1 does. If Alaska is able to qualify for truth in
sentencing funds, they will amount to $617,000 for FY 98, and about
$500,000 for the following four years.
CHAIRMAN TAYLOR noted several years ago the Legislature was
attempting to accomplish a similar goal. His concern at that time
was the early release of violent prisoners, by the Parole Board,
with no notification to witnesses or others who might be
threatened, including the judge who imposed the sentence. He felt
the appropriate solution was to require the sentencing judge's
consent to an early release. MS. KNUTH agreed notification of
victims and the court is entirely appropriate and added Senator
Ellis has introduced a bill to create an automated victim
notification system. CHAIRMAN TAYLOR noted previous legislation he
sponsored would make the person(s) responsible for early release
liable to the victim if a reoffense occurred.
TAPE 97-14, SIDE A
Number 000
DEL SMITH , Deputy Commissioner of the Department of Public Safety,
testified in strong support of SB 67. He and Commissioner Otte are
concerned about the public's misperceptions of actual time served
by prisoners, and the effect early release can have on the victims,
witnesses, defendants and the public.
SENATOR PEARCE asked whether a jury is told how much time will
actually be served when deliberating. CHAIRMAN TAYLOR replied they
are not informed, because it is believed it might prejudice them
against the prosecution. He explained there are states where one
can choose who will impose the sentence; the jury or judge, but the
judge has the right to overrule the jury.
CHAIRMAN TAYLOR asked why existing sentences cannot be structured
by shifting the numbers so that one-third became three-quarters to
bring us into federal compliance. MS. KNUTH agreed that there are
several ways to accomplish the same thing that would do the least
"tweaking" to our system.
CHAIRMAN TAYLOR asked what is wrong with a system that sentences a
person for 15 years and tacks on additional years for acting out.
He noted we assume and reward good conduct up front while most
other penal institutions put a person in prison assuming good
conduct and then punish them for misconduct. MS. KNUTH replied the
difference in a bad-time state is the presumption that prisoners
have to earn time off. Most states in the union are good-time
states but the truth in sentencing program has caused some states
to change to bad-time policies.
CHAIRMAN TAYLOR questioned why prisoners, using public defender
services to appeal a criminal case, are given credit for prison
time served while the appeal is pending. If they weren't, they
would have something invested in the appeal. MS. KNUTH said that
was an interesting proposal. CHAIRMAN TAYLOR commented the appeal
turnaround time in some other countries is three months, while it
is two and one-half to three years here.
Number 55
SENATOR PEARCE moved to pass CSSB 67(Jud) from committee with
individual recommendations and the appropriate fiscal notes. There
were no objections and it was so ordered.
SB 41 ENVIRONMENTAL & HEALTH/SAFETY AUDITS
MR. MIKE PAULEY, staff to Senator Leman, sponsor of SB 41, noted
submitted a packet of 24 amendments from various sources: the
sponsor, industries affected by the bill, DEC, and the Department
of Law. (A COPY OF THE AMENDMENTS IS ATTACHED TO THE END OF THIS
DOCUMENT.)
CHAIRMAN TAYLOR said the subject of the second amendment was
reasonable: 90 days instead of 30. MR. PAULEY said DEC does not
oppose amendments 1 and 2.
CHAIRMAN TAYLOR asked what impact deleting the word "only" in
amendment #4 would have. MR. PAULEY explained it refers to the
circumstances in which one could disclose the audit report, but not
waive the privilege.
MR. PAULEY said amendment #5 specifies privileged information can
only be disclosed to a lawyer or someone who works for that lawyer.
Amendment #6 provides that if an audit report is shared with
someone else under terms of a confidentiality agreement, anyone who
violates that agreement is liable for damages. He thought that
provision was omitted inadvertently.
MR. PAULEY continued explaining the amendments.
Amendment #7 clarifies that all parties agree that the
privilege described in this bill does not shield underlying
facts.
Amendment #8 relates to privilege for information relating to
pipeline tariffs.
Amendment #9 provides that privilege and immunity can be
overcome if the violation in question poses an imminent threat
of injury, and is one of the things EPA looks for.
Amendment #10 adds an administrative hearing officer, in
addition to the courts.
Amendment #11 is a semantic change for the purpose of
consistency.
Amendment #12 specifies which portions of an audit can be
viewed during an investigation.
Amendment #13 addresses EPA's concern by conditioning
immunity.
Amendment #14 pertains to the notice requirement for audits.
Amendment #15 establishes that nothing in the bill will
prevent a regulatory agency from seeking injunctive relief or
issuing an emergency order in situations involving imminent
and substantial danger.
Amendment #16 clarifies conditions for immunity for repeat
violations by companies with facilities located in other
states.
Amendment #17 is a grammatical correction.
Amendment #18 replaces "offense" with "violation" to conform
with civil procedure language in Alaska.
Amendment #19 deals with economic benefit if the non-compliant
owner/operator has gained an economic benefit from non-
compliance.
Amendment #20 allows electronic filing of audit disclosures.
Amendment #21 adds language to the definition of what might be
included in an audit report.
Amendment #22 adds material to the definition of "confidential
self-evaluation and analysis" to specify employee interview
notes or field notes are included in the definition of
privileged audit information.
CHAIRMAN TAYLOR clarified the interviewer's words are provided
immunity, but not necessarily the documents of the interviewee.
MR. PAULEY continued.
Amendment #23 deletes any reference to DHSS.
Amendment #24 contains definitions for the words
"intentionally," "knowingly," and "recklessly" from the
criminal code.
Number 240
SENATOR TAYLOR said his intention was to entertain a motion to
adopt all 24 amendments. If any member has objection to any
specific amendment within that package, he would withdraw it from
the motion and address it individually.
SENATOR ELLIS objected to amendments #7 and #8 because Ms. Adair of
DEC had to drop off the teleconference and was unable to comment.
SENATOR PEARCE moved to adopt Amendments 1-24, except for #7 and
Number 260
SENATOR MILLER moved to adopt Amendment #7. SENATOR ELLIS objecte
for the purpose of hearing DEC's comments.
Number 279
MS. MARIE SANSONE, Department of Law, said the inclusion of the
term "objective facts" was very important because they do not want
subjective opinions.
CHAIRMAN TAYLOR asked her to give him an example of how one could
write a self-audit report and not make reference to objective facts
that make up the report. MS. SANSONE answered the portion of the
report that is to remain privileged concerns the auditor's
evaluation: findings, conclusions, opinions, and the recommended
plan for corrective action. The actual facts gathered and relied
on to make conclusions would not be privileged. CHAIRMAN TAYLOR
asked why a pulp mill would hire an expert to gather samples hourly
to review its operations and ensure compliance if that data is not
privileged. Why hire anyone to do anything other than give
conjecture and recommendations if that is the only thing that can
be shielded?
Number 311
MS. SANSONE explained if the privilege is used to shield objective
facts, it can be used to sweep up a lot of valuable information
used to determine violations. To allow privilege to shield that
information would jeopardize the credibility of the enforcement
program. People should have access to objective facts but not to
the auditor's thoughts about sampling methods or conclusions about
the samples.
Number 319
CHAIRMAN TAYLOR repeated if the facts are not going to be
privileged, he does not believe anyone will ever hire someone to
come in and do tests.
Number 364
MS. SANSONE explained the purpose of the audit privilege is to
encourage people to evaluate their own conduct and undertake
activities to correct and prevent violations. Most businesses have
an incentive to do that anyway. The Administration does not
believe that incentive should extend to the objective facts.
SENATOR ELLIS reminded the Chairman there was a packet of
amendments from him as well.
CHAIRMAN TAYLOR asked the question. SENATOR ELLIS maintained his
objection. SENATORS PEARCE, MILLER, PARNELL AND TAYLOR voted yes;
SENATOR ELLIS voted no. The motion to adopt Amendment #7 passed.
CHAIRMAN TAYLOR announced the remaining amendments would be heard
at the next hearing and adjourned the meeting at 3:44 p.m.
The following amendments were submitted by Senator Leman.
A M E N D M E N T #1
Page 3, line 7:
Following "certified mail":
Insert: "with return receipt requested"
Page 3, line 7:
Following "to the":
Insert: "commissioner's office of the"
A M E N D M E N T #2
Page 3, lines 12-13:
Change wording as follows:
Once initiated, an audit shall be completed within a
reasonable time, but no longer than 90 days [30 DAYS] unless
a longer period of time is agreed upon between the owner or
operator and the department.
A M E N D M E N T #3
Page 3, lines 30-31:
Change wording as follows:
A person claiming the privilege described in this section
has the burden of establishing [PROVING] the applicability
of the privilege.
A M E N D M E N T #4
Page 4, lines 23-27:
In subsection (b), delete the word "only":
(b) Disclosure of the part of an audit report or
information consisting of confidential self-evaluation or
analysis does not waive the privilege established by AS
09.25.450 if the disclosure is made [ONLY]
(1) to address or correct a matter raised by the
environmental or health and safety audit and is made [ONLY]
to....
A M E N D M E N T #5
Page 4, line 30:
Delete all material.
Insert: "(B) the owner or operator's lawyer or the lawyer's
representative;"
A M E N D M E N T #6
Page 5, after line 22:
Add a new subsection (d) as follows:
(d) A party to a confidentiality agreement described in
(b)(2) of this section who violates that agreement is liable
for damages caused by the disclosure and for other penalties
stipulated in the confidentiality agreement.
A M E N D M E N T #7
Page 5, line 25:
Delete the reference to "objective facts" in 09.25.460 (a):
(a) There is no privilege under AS 09.25.450 for that
part of an audit report that contains the following:
[ (1)OBJECTIVE FACTS; ]
A M E N D M E N T #8
Page 6, lines 15-16:
Reword subsection (b) as follows:
The parts of an audit report that consist of information
necessary to determine pipeline rates, tariffs, fares, or
charges are not privileged and are admissible as evidence
and subject to discovery in a proceeding relating to
pipeline rates, tariffs, fares, or charges. [AN AUDIT
REPORT IS NOT PRIVILEGED AND IS ADMISSIBLE AS EVIDENCE AND
SUBJECT TO DISCOVERY IN A PROCEEDING RELATING TO PIPELINE
RATES, TARIFFS, FARES, OR CHARGES.]
A M E N D M E N T #9
Page 6, line 24:
Following "offsite":
Insert: "or the imminent or present threat of such injury"
Page 7, line 13:
Following "offsite":
Insert: ", or if the violation poses an imminent or present
threat of such injury"
A M E N D M E N T #10
Page 6, line 17:
Following "court":
Insert "or administrative hearing officer"
Page 6, line 19:
Following "civil":
Insert "or administrative"
Page 6, line 19:
Following "court":
Insert "or administrative hearing officer"
Page 9, line 7:
Following "court":
Insert "or administrative hearing officer"
A M E N D M E N T #11
Page 7, line 16:
Following "obtained by the ":
Delete "person"
Insert "owner or operator"
A M E N D M E N T #12
Page 7, line 26 through page 8, lines 4:
Delete all material.
Page 8, lines 14 - 19:
Reword paragraph as follows:
(4) cooperate with the appropriate agency in connection
with an investigation of the issues identified in the
disclosure; an agency may request that the owner or operator
allow the agency to review, under an agreement as described
in AS 09.25.455(b)(3), the part of the audit report that
describes the implementation plan or tracking system
developed to correct past noncompliance, improve current
compliance, or prevent future noncompliance. [RELEVANT
PORTIONS OF THE CONFIDENTIAL SELF-EVALUATION AND ANALYSIS AS
NECESSARY TO DETERMINE THAT APPROPRIATE CORRECTIVE ACTIONS
HAVE BEEN IDENTIFIED].
A M E N D M E N T #13
Page 8, after line 8:
Add a new paragraph (d) (2) as follows:
(2) promptly initiate appropriate efforts to discontinue,
abate, or mitigate any conditions or activities causing
injury or likely to cause imminent injury to one or more
persons at the site audited or to persons, property, or the
environment offsite.
A M E N D M E N T #14
Page 8, lines 20-22; Page 9, lines 1-2:
Reword subsection (g) as follows:
(g) During the period between receipt of the audit notice
required under AS 09.25.450(b) and the specified end date of
the audit [AUDIT PERIOD SPECIFIED IN THE NOTICE REQUIRED
UNDER AS 09.25.450(b)], the department may not initiate an
inspection, monitoring, or other investigative activity
concerning the audited facility, operation, or property
based [SOLELY] on the receipt of a notice under AS
09.25.450. The department has the burden of proving that an
inspection, monitoring, or other investigative activity
concerning the audited facility, operation, or property
initiated after receiving a notice under AS 09.25.450 was
not initiated based [SOLELY] on receiving the notice.
A M E N D M E N T #15
Page 9, after line 5:
Insert new subsection:
(i) This section may not be construed to prevent a
regulatory agency from(1) seeking injunctive relief; or
(2) issuing an emergency order in situations involving an
imminent and substantial danger to public health or welfare
or the environment.
A M E N D M E N T #16
Page 9, lines 11-13:
Amend 09.25.480(a)(1)(B) as follows:
(B) within the 36 months preceding the violation,
repeatedly or continuously committed, at the same facility
or associated facilities located in the state, the specific
violation or closely related violation for which immunity is
sought; or [VIOLATIONS THAT ARE THE SAME AS, OR SIMILAR TO,
THE VIOLATION FOR WHICH THE IMMUNITY IS SOUGHT;]
A M E N D M E N T #17
Page 9, line 15:
Following "into compliance and":
Delete: "and this failure"
Insert: "so as to constitute"
A M E N D M E N T #18
Page 9, lines 17-20:
Reword paragraph (a)(2) as follows:
(2) the violation [OFFENSE] was committed intentionally or
knowingly by a member of the owner's or operator's
management or an agent of the owner or operator and the
owner's or operator's policies or failure to have in place
systems reasonably designed to prevent such violations [LACK
OF PREVENTION SYSTEMS CONTRIBUTED MATERIALLY TO THE
OCCURRENCE OF THE VIOLATION.]
A M E N D M E N T #21
Page 10, lines 13-16:
Add new language to 09.25.490 (a)(1)(A) as follows:
(A) a report, prepared by an auditor, monitor, or similar
person, including the scope of the audit, the dates the
audit began and ended, the information gained in the audit,
findings, conclusions, recommendations, exhibits, and
appendices; the types of exhibits and appendices that may be
contained in an audit report include supporting information
that is collected or developed for the primary purpose of
and in the course of an environmental or health and safety
audit, including
(i) interviews with current or former employees;
(ii) field note and records of observations;
(iii) findings, opinions, suggestions, conclusions,
guidance, notes, drafts, and memoranda;
(iv) legal analyses;
(v) drawings;
(vi) photographs;
(vii) laboratory analyses and other analytical data;
(viii) computer generated or electronically recorded
information;
(ix) maps, charts, graphs, and surveys; and
(x) other communications and documents associated
with an environmental or health and safety audit;
A M E N D M E N T #22
Page 10, lines 22-27:
Add new language to definition of "confidential self-
evaluation and analysis" as follows:
(2) "confidential self-evaluation and analysis" means the
part of an audit report that consists of interviews with
current or former employees; field notes and records of
observations made by the auditor; findings, opinions,
suggestions, conclusions, guidance, notes, drafts, and
analyses performed by the auditor; memoranda and documents
that evaluate or analyze all or part of the material
described in the audit report, including implementation
issues or an audit implementation plan or tracking system to
correct past noncompliance, improve current compliance, or
prevent future noncompliance with an environmental or
health and safety law, and that is...
A M E N D M E N T #23
Page 11, line 2:
Delete the words "Department of Health and Social Services":
(3) "department" means the Department of Environmental
Conservation, the Department of Labor, [AND THE DEPARTMENT
OF HEALTH AND SOCIAL SERVICES,] as appropriate;
A M E N D M E N T #24
Page 11, line 21:
Delete all material.
Page 11, line 22:
Delete all material.
Page 11, line 28:
Delete all material.
Re-number definitions accordingly.
Page 12 following line 3:
Add a new subsection as follows:
"(c) For purposes of this chapter, unless the context
requires otherwise,
(1) a person acts "intentionally" with respect to a result
described by a provision of law defining a violation when the
person's conscious objective is to cause that result; when
intentionally causing a particular result is an element of a
violation, that intent need not be the person's only objective;
(2) a person acts "knowingly" with respect to conduct or to
a circumstance described by a provision of law defining a
violation when the person is aware that the conduct is of that
nature or that the circumstance exists; when knowledge of the
existence of a particular fact is an element of a violation, that
knowledge is established if a person is aware of a substantial
probability of its existence, unless the person actually believes
it does not exist; a person who is unaware of conduct or a
circumstance of which the person would have been aware had that
person not been intoxicated acts knowingly with respect to that
conduct or circumstance;
(3) a person acts "recklessly" with respect to a result or
to a circumstance described by a provision of law defining a
violation when the person is aware of and consciously disregards
a substantial and unjustifiable risk that the result will occur
or that the circumstance exists; the risk must be of such a
nature and degree that disregard of it constitutes a gross
deviation from the standard of conduct that a reasonable person
would have been aware had that person not been intoxicated acts
recklessly with respect to the risk.
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