Legislature(1997 - 1998)
04/27/1998 02:15 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
April 27, 1998
2:15 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
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.
- MOVED SJR 10 OUT OF COMMITTEE
HOUSE BILL NO. 16
"An Act relating to delinquent minors, to the taking of action
based on the alleged criminal misconduct of certain minors, to the
services to be provided to the victims of criminal misconduct of
minors, and to agency records involving minors alleged to be
delinquent based on their criminal misconduct; and amending Rule 19
and repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska
Delinquency Rules."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 335
"An Act replacing the Uniform Child Custody Jurisdiction Act with
the Uniform Child Custody Jurisdiction and Enforcement Act; and
amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule
205, Alaska Rules of Appellate Procedure."
- MOVED HB 335 OUT OF COMMITTEE
SENATE RESOLUTION NO. 2
Requesting Bruce M. Botelho, Attorney General of the State of
Alaska, to appoint a special prosecutor to investigate possible
security and other violations in connection with World Plus, Inc.
- HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SJR 10 - See Judiciary minutes dated 2/19/97, 2/26/97, and 3/19/97.
SR 2 - No previous action to report.
HB 16 - No previous action to report.
HB 335 - See HESS minutes dated 3/25/98 and Judiciary minutes
dated 4/22/98.
WITNESS REGISTER
Ms. Pat Davidson
Legislative Auditor, Legislative Audit Division
Alaska State Legislature
PO Box 113300
Juneau, Ak 98811-3300
POSITION STATEMENT: Commented on SR 2
Mr. Bruce Campbell
Staff to Representative Pete Kelly
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented HB 16
Ms. Margo Knuth
Assistant Attorney General
Criminal Division, Department of Law
PO Box 110300
Juneau, Ak 99811-0300
POSITION STATEMENT: Commented on HB 16
Ms. Barbara Brink
Director, Public Defender Agency
Department of Administration
900 West 5th Ave, suite 200
Anchorage, Ak 99501
Ms. Patti Swenson
Staff to Representative Con Bunde
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented HB 335
Ms. Deborah Behr
Assistant Attorney General
Legislation & Regulations, Department of Law
PO Box 110300
Juneau, Ak 99811-0300
POSITION STATEMENT: Supported HB 335
Ms. Renee Howell
Staff to Senator Lyda Green
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SJR 10
ACTION NARRATIVE
TAPE 98-43, SIDE A
Number 001
SR 3 - ALASKA PUBLIC SAFETY INFORMATION SYSTEM
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:15 and called SR 3 as the first order of business.
CHAIRMAN TAYLOR asked if there was anyone else wanting to give
testimony regarding the "computergate scandal."
Hearing none, SENATOR MILLER moved SR 3 out of committee with
individual recommendations. There was objection from SENATOR ELLIS
and the roll was called. The bill passed out of committee by a vote
of three to one, with SENATOR ELLIS maintaining his objection.
SB 190 - ATTEMPT TO PURCHASE BEFORE EMINENT DOMAIN
CHAIRMAN TAYLOR brought up SB 190, noted the committee had heard
this bill before and he was satisfied with their deliberations and
would entertain a motion to move the bill to the entire body for a
decision.
Number 48
SENATOR MILLER moved SB 190 from committee with individual
recommendations. Without objection, it was so ordered.
SR 2 - WORLD PLUS, INC., INVESTIGATION
CHAIRMAN TAYLOR explained SR 2 relates to the World Plus Inc. (WPI)
ponzi scheme perpetrated in Fairbanks. He asked if anyone from the
Department of Law was prepared to testify on this legislation.
Hearing no one, CHAIRMAN TAYLOR commented that the silence from the
department on this issue was deafening.
Number 71
CHAIRMAN TAYLOR asked MS. PAT DAVIDSON, Legislative Auditor to come
forward and give the committee an update.
MS. DAVIDSON testified that there was a Legislative Budget and
Audit meeting scheduled for April 30, 1998, at which time she would
provide information and a briefing to that committee.
CHAIRMAN TAYLOR asked MS. DAVIDSON how the audit was going.
SENATOR ELLIS asked CHAIRMAN TAYLOR to clarify what MS. DAVIDSON
could discuss with the committee and what would be inappropriate to
ask of her. CHAIRMAN TAYLOR suggested committee members might ask
whatever they liked, though he was not sure what MS. DAVIDSON would
be able to say.
Number 100
MS. DAVIDSON reported that the auditors don't generally talk about
audits in public while they are conducting them, especially before
they present their report to the Budget and Audit committee. She
indicated she couldn't really give the committee any information at
this time.
CHAIRMAN TAYLOR stated that the committee has a prior report with
findings indicating an apparent conflict of interest within the
Department of Law. He asked if, after further investigation, the
auditors had changed that original opinion. MS. DAVIDSON replied
she was unable to answer that question due to the confidentiality
of the audit process. CHAIRMAN TAYLOR asked MS. DAVIDSON if they
could defer this matter until Thursday, after her report to the
Budget and Audit Committee, giving the committee time to decide
what information could be released. MS. DAVIDSON said that might be
premature, as she will need to brief the Budget and Audit committee
as well as submit to them a written report. She said she is in the
process of preparing the report, but she anticipates it might take
a bit longer due to the ongoing actions against WPI.
CHAIRMAN TAYLOR asked if the class action suit filed in the case
against the State of Alaska was impacting MS. DAVIDSON's ability to
conduct the audit. MS. DAVIDSON replied they are getting
cooperation from all departments involved and she thinks the
difficulty posed by the suit will lie in determining what is and
what is not public information. CHAIRMAN TAYLOR remarked this was
understandable and he was having the same problem with information
he received from the Department of Law in relation to the Alaska
Public Safety Information Network. He said his concern was how
people in the state would find out that the chief prosecutor in the
state failed to prosecute anyone in this case if he couldn't get
answers in a legislative hearing.
MS. DAVIDSON said that at some point in time, the auditors could
make a public report. CHAIRMAN TAYLOR asked if that would be before
the end of this legislative session and MS. DAVIDSON replied that
she doubted that.
Number 175
CHAIRMAN TAYLOR expressed frustration with his inability to access
the information necessary to act on behalf of the people. CHAIRMAN
TAYLOR said he wants a legal opinion from the Department of Law on
who they think their client is. He said everything he has seen so
far indicates that the Department of Law thinks that the state
employees and their agencies are their clients and so
attorney/client privilege applies. CHAIRMAN TAYLOR said this is not
an appropriate use of this privilege and not a reasonable reason to
prevent the transmittal of information to the auditors and the
Judiciary committee. CHAIRMAN TAYLOR understood MS. DAVIDSON
couldn't tell the committee anything at this time but hoped when
the Budget and Audit committee allowed her to do so, she could
provide them with a preliminary report. CHAIRMAN TAYLOR said he was
primarily concerned about the statement made in the original report
regarding an apparent conflict of interest and the failure to
prosecute on the part of the Attorney General.
Number 215
MS. DAVIDSON reported that her office drew their initial
conclusions entirely from public information, especially the
statement made by the Attorney General regarding why the state
deferred prosecution to the federal government in this case. She
said they did not question this decision, only suggested that when
the federal authorities were done with the case, someone with a
state perspective should look into it. CHAIRMAN TAYLOR thanked MS.
DAVIDSON and said he hoped they could take this up again in order
to clear up some lingering questions.
HB 16 - JUVENILE DELINQUENCY PROCEDURES
MR. BRUCE CAMPBELL, staff to Representative Pete Kelly, presented
HB 16 as Rep. Kelly's third substantial bill regarding juvenile
justice matters. He said Rep. Kelly worked with the Governor as
well as several departments on this bill.
MR. CAMPBELL said this bill will establish dual sentencing
procedures which will give juveniles both a juvenile and an adult
sentence and allow them to serve the former sentence unless their
behavior necessitates the latter.
MR. CAMPBELL explained the bill also clearly authorizes
municipalities to take minors before civil court and gives the
Department of Health, Education and Social Services the ability to
get involved in the informal adjudication process and encourages
all involved agencies to resolve problems at the earliest, most
correctable levels.
MR. CAMPBELL said the bill also adds secure and semi-secure
residential facilities for minors with drug, alcohol and
developmental disorders, allowing these offenders to remain in
state.
CHAIRMAN TAYLOR asked if there was an amendment to the bill and MR.
CAMPBELL said there was an amendment he hoped the committee would
consider. The amendment concerned the recent murder of taxi drivers
in Anchorage, a crime in which a minor offender would be waived
automatically into adult court. However, in the interpretation of
the waiver provision, it was ruled that could only happen after an
"arraignment." This would require a grand jury indictment, and
goes against the intent of the bill. The amendment clarifies these
juveniles could be waived into adult court without a grand jury
indictment.
Number 315
CHAIRMAN TAYLOR agreed that was not the intent of the waiver bill
and expressed his appreciation for this legislation and the fix it
makes to the juvenile waiver process.
SENATOR ELLIS asked what process the task force used to make
recommendations and if there were provisions in the bill that did
not originate from the task force, or if there were task force
recommendations that had not been included in the bill. MR.
CAMPBELL noted section six dealing with a witness protection
program did not come out of the task force process and he believed
there were one or two provisions from the task force report that
were left out. MR. CAMPBELL indicated one of these changes was a
change in wording that would have made the bill much longer and
more complex.
Number 362
MS. MARGO KNUTH, representing the Department of Law, worked with
the Youth and Justice Forum in 1996 to formulate their lengthy
report. MS. KNUTH said this was a bipartisan group that met over
the course of a year and concerned itself with the increase in
youth crime in Alaska. MS. KNUTH said the group discovered that
part of the problem was a heightened awareness of youth crime
created a perception of an increase in juvenile crime. Alaska is
a growing state and there are simply more kids living here.
MS. KNUTH said the conference came up with two major conclusions.
First, they decided the "most bang for the buck" would come from
increased funding for prevention and early intervention. She said
the smart start program is an outgrowth of that conclusion.
MS. KNUTH said the second conclusion the conference reached was
regarding the importance of civil penalties. She said it is not how
large or small the consequences are, but how likely they are to be
enforced that makes them effective. She suggested consistent small
consequences are extremely effective for the low level offender and
there is currently a group of these lower level offenses that are
drawing no response. MS. KNUTH said this bill will authorize
communities to deal with these offenses through civil penalties and
a community court system.
On the other end of the spectrum, MS. KNUTH said the conference
established that there is a small group of serious offenders who
need to be identified and closely monitored. She said this is where
the dual sentencing provisions come in. She said those juveniles at
risk for becoming serious offenders will be given once last chance
in the form of a dual sentence. If they abide by the provisions set
out by the court under their juvenile sentence (including
drug/alcohol treatment, restitution, etc.) they end up with no
adult conviction and no adult record. However, if they fail to
abide by the conditions they are waived into their adult sentence.
MS. KNUTH said this is proving to be effective, and it puts the
person's future into their own hands and allows them to control
their fate. MS. KNUTH was "fairly optimistic" this bill would help
juvenile offenders at both sides of the spectrum.
CHAIRMAN TAYLOR asked MS. KNUTH if she had any concerns about the
amendment. MS. KNUTH said the amendment seemed appropriate with the
intent of the original legislation and was a good fix to the
problem.
Number 438
MS. BARBARA BRINK, Alaska Public Defender, thanked the sponsor for
making improvements to the bill but testified that treating more
kids like adults will not necessarily be a more effective crime
fighting measure. MS. BRINK suggested we should remember that there
has not been a great increase in juvenile arrests and we should
consider that we may be reacting to the perception of a problem
rather than a problem itself. MS. BRINK reported that Alaska is
currently rated 37th in the country in the amount of juvenile
crime, with only 13 states having less juvenile crime. However, we
are second in the country in both how many juveniles we lock up and
how long we lock them up for.
MS. BRINK said there are still two sections of the bill that should
be addressed. First, there is a portion of the bill that will treat
children even more harshly than adults are treated by requiring
them to serve time in cases where adults would not be required to.
Second, MS. BRINK said the section that requires the automatic
reversion to the adult sentence for a juvenile who violates parole
is tougher than what is required of adult offenders who violate
conditions of parole and are allowed to have that violation
reviewed by a judge to determine the appropriate course of action.
MS. BRINK noted that she appreciated having secure psychiatric
facilities in state, but she was concerned with the due process
procedure set out on page four. She specified the provision that
allows a hearing only after 90 days and contains a standard lower
than the regular "likely to be a danger to self/others." MS. BRINK
believes if the system is to be set up to punish juveniles as
adults, it should offer them the same protections as well.
MS. BRINK also brought up a change to delinquency rule 10c in
section 51, saying it allows the use of hearsay in a temporary
detention hearing. MS. BRINK said this type of information is not
generally admissible and she does not think it is a good idea to
make this change. MS. BRINK urged the committee not to adopt the
section that permits hearsay to be used in a temporary detention
hearing.
Number 514
SENATOR ELLIS asked where the language MS. BRINK referred to came
from. MARGO KNUTH said it came from the criminal division of the
Department of Law and is parallel to the process that allows
hearsay to be used in a grand jury hearing.
SENATOR PEARCE moved amendment #1 and without objection, it was so
ordered.
SENATOR PEARCE then moved CSHB 16(JUD) out of committee with
individual recommendations. Without objection, it was so ordered.
HB 335 - UNIFORM INTERSTATE CHILD CUSTODY ACT
MS. PATTI SWENSON, staff to Representative Con Bunde, presented HB
335 as a bill that integrates Alaska into the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA). MS. SWENSON said the
bill addresses problems that arise due to interstate child custody
and revises the current statutes that have been unrevised since
1968. MS. SWENSON said the revision helps both custodial and non-
custodial parents by addressing modern communication devices,
domestic violence orders and other frequently occurring problems.
MS. SWENSON said the bill will also help clear up conflicting court
orders issued in different states and ease enforcement and hearing
procedures.
MS. SWENSON also stated that the UCCJEA will standardize all the
paperwork and time frames connected with custody enforcement orders
in all states. She said the bill makes the process easier and
cheaper and will be important to anyone who becomes involved in a
custody dispute. MS. SWENSON concluded that the bill also benefits
kids and she urged the committee's support.
Number 565
MS. DEBORAH BEHR, representing the Department of Law, testified
that she is the Uniform Law Commissioner for Alaska and one of the
nine attorneys that drafted the UCCJEA. MS. BEHR said the Uniform
Law Commission is a middle of the road group that seeks to
establish a middle of the road proposal that can be enacted in all
fifty states. MS. BEHR said there were no votes against the UCCJEA
in the Uniform Law Commission.
MS. BEHR explained this is not a federal mandate but only a result
of cooperation between the states. She further explained this does
not relate to Child In Need of Aid (ChINA) determinations, nor does
it effect child support. The bill merely deals with routine divorce
custody orders that have some need for enforcement actions. She
said the bill will benefit both custodial and non-custodial parents
by ensuring the predictability of support orders and their
consequences.
TAPE 98-43, Side B
Number 581
MS. BEHR gave an example in which two parents had contradictory
court orders, and illustrated how the bill will make it less
expensive and easier to resolve this problem, even without either
parent retaining an attorney. She said the goal was to decrease the
number of violations of court orders in custody cases and make the
laws better serve kids.
MS. BEHR said this bill will help parents get better enforcement
more quickly and allow for criminal penalties for noncompliance.
CHAIRMAN TAYLOR thanked MS. BEHR for her work on this legislation
and recognized the importance of predictability and stability in
childrens lives.
Number 537
SENATOR PEARCE moved HB 335 from committee with individual
recommendations. Without objection, it was so ordered.
SJR 10 - ELECTION OF ATTORNEY GENERAL
MS. RENEE HOWELL, staff to the sponsor of SJR 10 SENATOR LYDA
GREEN, testified she was available to answer questions.
CHAIRMAN TAYLOR said many people in the state share a significant
concern about amending the Constitution to elect an Attorney
General. Tragically, we don't currently have an Attorney General
working in the interest of the people of Alaska, according to
CHAIRMAN TAYLOR. He said the Attorney General and the Department of
Law are hiding behind a specious claim of attorney/client privilege
and are unwilling to testify before this committee, though seem to
be quite able to make statements to the press.
CHAIRMAN TAYLOR said the "Attorney General" is not even the
Attorney General as he failed to stand for confirmation before the
Legislature. CHAIRMAN TAYLOR referred to the issue of searches
conducted in dry villages and compared Bruce Bothelo's assessment
that the law was "working" to the logic of Hitler and Stalin.
CHAIRMAN TAYLOR indicated that Mr. Bothelo's failure to prosecute
in both the ponzi scheme and the APSIN matter belies this
Governor's crass, political motivation.
CHAIRMAN TAYLOR also indicated the Attorney General's decision to
drop the Babbitt suit was another reason that left us with no other
option than to direct the voters to elect an Attorney General. He
said he maintains his reluctance to change the Constitution, but
finds no other way to ensure the Attorney General will be
accountable for his or her actions.
Number 464
SENATOR MILLER moved SJR 10 out of committee with individual
recommendations. Without objection, it was so ordered.
CHAIRMAN TAYLOR announced the committee had no further business
before them and they were adjourned at 3:53 p.m.
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