Legislature(1999 - 2000)
02/24/1999 01:37 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
February 24, 1999
1:37 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 5
"An Act relating to the crime of misprision of felony."
-HEARD AND HELD
SENATE BILL NO. 69
"An Act authorizing an advisory vote by the qualified voters of the
state on the question of the election of the attorney general; and
providing for an effective date."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 5 - See Judiciary Committee minutes dated 2-3-99.
SB 69 - See State Affairs minutes dated 2/16/99.
WITNESS REGISTER
Mr. Blair McCune
Deputy Director
Alaska Public Defender Agency
900 West 5th #200
Anchorage, AK 99501
POSITION STATEMENT: Commented on SB 5
Ms. Anne Carpeneti
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99801-0300
POSITION STATEMENT: Commented on SB 5
Senator Drue Pearce
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SSSB 5
Ms. Susan Fischetti
10336 Stewart Drive
Eagle River, AK 99577
POSITION STATEMENT: Supported SB 69
Mr. Ken Jacobus
425 G Street #920
Anchorage, AK 99501
POSITION STATEMENT: Opposed SB 69
Mr. Jim Baldwin
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Opposed SB 69
Senator Jerry Ward
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 69
ACTION NARRATIVE
TAPE 99-12, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:37 and announced SB 5 would be the first order of
business.
SB 5 - MISPRISION OF FELONY
SENATOR DAVE DONLEY presented a work draft for SB 5 that
establishes the crime of misprision and makes it applicable to
unclassified felonies and felony crimes against a person. The bill
makes the crime of misprision a class A or B felony, depending on
the severity of the crime witnessed. This version adds an
affirmative defense for witnesses who do not report a crime in a
timely manner out of fear they may be in danger if they do so, and
specifies that the state need not prove a person knew the class of
felony they witnessed in order to be prosecuted under this statute.
Number 052
SENATOR DONLEY moved the adoption of work draft M(Luckhaupt) as the
committee substitute. Without objection, the committee substitute
was adopted.
MR. BLAIR MCCUNE, Deputy Director of the Alaska Public Defender
Agency, said the bill conflicts with the privilege of self-
incrimination, which gives any person who fears they may be charged
with an offense the right not to report the crime. SB 5 may result
in requiring a person who has nothing to do with an offense being
required to report it, while a person with some involvement in a
crime would not.
MR. MCCUNE proposed Alaska has other statutes, such as "hindering
prosecution," with which to prosecute a person who renders
assistance to a criminal by providing transportation, money, or
concealment.
Number 100
SENATOR PEARCE asked how Alaska would prosecute the Nevada case in
which a young man witnessed, but did not participate in a crime.
MR. MCCUNE replied in that case the young man provided
transportation to the perpetrator.
CHAIRMAN TAYLOR expressed concern that the intent of this bill is
to criminalize behavior similar to "abetting" a criminal, or being
an accessory to a crime, without actually participating in the
crime.
MR. MCCUNE explained to aid or abet a criminal involves complicity
in the crime and criminal intent. A person convicted as an
accessory can be punished in the same manner as the principal
perpetrator. CHAIRMAN TAYLOR asked if the hindering prosecution
statute requires intent and MR. MCCUNE replied it requires intent
to hinder the apprehension or prosecution of a criminal. CHAIRMAN
TAYLOR commented that the level of intent in SB 5 is one level
lower than that.
SENATOR PEARCE indicated her concern with situations of abused
women and children where there is knowledge and implicit support of
the abuse by family and community members. Part of her intent with
SB 5 is to see these cases prosecuted. She said she has no answer
to the self-incrimination question, but this is a widespread
problem within Alaska and, "I'm not convinced that we could use
'hindering prosecution' for the sorts of cases that I am thinking
about . . . "
SENATOR PEARCE remarked that it is unfair to allow children to be
abused because of a protection from self-incrimination. "I don't
care what the Constitution says in this particular case - it
doesn't work for me in this case."
CHAIRMAN TAYLOR said authorities are often constrained by a pattern
within dysfunctional families that keeps abuse from being reported.
He asked, "Are we going to be imprisoning moms because they didn't
go forward earlier?" SENATOR PEARCE replied the language on lines
12-14 of page 1 was inserted to provide an affirmative defense for
most of those cases, but it does not cover cases in which both
parents should be prosecuted. She said, "If either parent stands by
and watches while the other parent abuses the child, as far as I am
concerned, both parents should be prosecuted in some manner."
CHAIRMAN TAYLOR mentioned SENATOR HALFORD'S concern about personal
safety. SENATOR PEARCE said language had been inserted into the
bill to deal with that "fear factor."
Number 288
SENATOR HALFORD explained there is another factor; the children
themselves do not come forward for fear of losing one of their
parents, despite how deviant that parent may be. He said he did not
want to force the loss of both parents or compel the family to go
to court, instead of getting counseling. SENATOR PEARCE did not
dispute this point, but said, "We have to put some faith in the
prosecutors' . . . ability to decide which cases should be
prosecuted and which ones shouldn't." She said SB 5 would provide
a method to prosecute those who should be prosecuted. SENATOR
HALFORD concluded this is a difficult area of discussion.
SENATOR PEARCE agreed this is a difficult subject, but emphasized
she appreciated having a full discussion on the bill. She proposed
that in some cases those who should be prosecuted are family
members but not necessarily the parents of the abused child.
CHAIRMAN TAYLOR asked how the bill will affect counselors,
preachers, police officers and school teachers; the bill has a wide
sweep. SENATOR HALFORD said the bill only exempts lawyers.
Number 365
MS. ANNE CARPENETI, representing the criminal division of the
Department of Law, thanked the committee for the work done on the
bill in response to the concerns of the Department.
MS. CARPENETI reported the bill is still too broad and requires
victims of rape and domestic violence as well as spouses of child
abusers to report these crimes or be subject to a criminal
violation. The bill forces parents to report spouses to the
criminal justice system, rather than allowing them the choice to
pursue counseling or seek another solution. She suggested limiting
the offenses covered by SB 5 to murder, attempted murder,
kidnaping, arson and maybe first-degree sexual abuse of a minor.
The nature of these crimes offset some of the concerns raised
because these are the most serious crimes where victims are unable
to be heard.
SENATOR TORGERSON asked how a victim of domestic violence or rape
could be prosecuted if the victim's testimony would be the evidence
of the crime. MS. CARPENETI said a person is required to report an
offense unless he or she is the perpetrator and therefore covered
by the right against self-incrimination. SENATOR HALFORD said
parents who know their child is being abused are probably violating
present law but they are protected by the privilege against self-
incrimination. Consequently, "If they are the good parent, who
didn't know and now finds out and goes to a psychological
professional . . . and takes their advice . . . you can't claim
self incrimination - so the self-incrimination only protects the
guilty; it doesn't protect the parent who is truly operating in the
best interests of the child."
SENATOR PEARCE testified the intent of SB 5 is not to compel a rape
victim to make a report, but to require a witness of such a crime
report it.
SENATOR PEARCE suggested there has to be a way to get at recidivist
pedophiles and protect "the next child, or the next child or the
next child." She said it seems the committee is considering sexual
abuse of a child by a non-parent a worse crime than sexual abuse by
a parent. She does not think anyone subscribes to this view but
said, "That is what happens if we don't somehow deal with the
parent - they are just as culpable . . . "
Number 479
SENATOR HALFORD cited a real life example to illustrate his point
that, "it is very, very difficult to make a parent take an action
against their child for the protection of the future."
SENATOR DONLEY asked if deleting the portion of SB 5 relating to
class B felonies would give the bill a better focus. ANNE CARPENETI
said yes.
Number 525
SENATOR DONLEY moved Amendment #1: insert the phrase, "other than
a victim" on page 1, line 5 after the word "person." After some
discussion, he modified his motion to insert the phrase after the
word "person" on line 4, page 1. Without objection, the amendment
was adopted.
SENATOR DONLEY moved Amendment #2: delete from page 1, line 6, and
page 1, line 8, and page 2, line 7 "or class B felony," to focus
the bill on very serious crimes.
Number 557
SENATOR HALFORD suggested that the bill should specify the exact
crimes covered rather than use the statutory reference. He asked
how many crimes would fall under the scope of the bill. After
discussion, the consensus of the sponsor, the Department and the
committee was that the list of crimes would not be too long to
specifically name them in the text of the bill. SENATOR PEARCE
stated that her concerns would be covered if the bill encompassed
unclassified felonies.
TAPE 99-12, SIDE B
Number 592
SENATOR DONLEY withdrew Amendment #2. He suggested the committee
consider a conceptual amendment to limit the bill to unclassified
felonies and first-degree arson, and list the offenses specifically
in the text of the bill. SENATOR HALFORD moved SENATOR DONLEY's
idea as Amendment #3. Without objection, Amendment #3 was adopted.
SENATOR ELLIS asked how the new requirement for "timely" reporting
in the bill would compare with the previous requirement for
immediate reporting. SENATOR DONLEY observed that the requirement
for timely reporting allows for a more flexible application. MS.
CARPENETI agreed.
Number 553
CHAIRMAN TAYLOR reflected that the crime created in this bill is
difficult to differentiate from conspiracy and accessory. He said
the committee will work on another draft of SB 5.
CHAIRMAN TAYLOR announced SB 69 was up for consideration.
SB 69-ADVISORY VOTE ON ELECTED AG
SENATOR JERRY WARD, prime sponsor of SB 69, explained the bill
allows a vote of the people of Alaska to decide whether the
attorney general (AG) should be an elected position.
SENATOR WARD said the attorney general now works at the pleasure of
the Governor, not for the people.
SENATOR WARD stated that the current Attorney General made a
political decision about the Babbitt subsistence case. He
commented, "I don't mind those Governors having Bruce Bothelo as
their Attorney General - that's fine, but I think the people should
have an attorney general that represents them and the Constitution
- not for political consideration."
SENATOR WARD testified that he has done research and determined
that all but five states have an elected attorney general.
SENATOR HALFORD said he did not think SENATOR WARD'S objective
could be accomplished by an amendment. He asked, "Why don't we do
this by resolution and forget about the advisory vote - let the
people vote on the issue." SENATOR WARD agreed it could be done
that way, but he prefers for the debate to happen first. CHAIRMAN
TAYLOR asked if SENATOR WARD would be willing to sponsor a
committee substitute that followed SENATOR HALFORD'S suggestion. He
said he would not be opposed to that. SENATOR HALFORD commented
that a bill cannot be changed into a resolution in committee.
Number 484
SENATOR WARD reported there is a bill to amend the Constitution
"coming in from the other side." He then said, "I do want to have
the debate; I can't wait 'til the current Attorney General debates
with our current Judiciary Chairman on whether or not this should
pass in a public arena - I think it's going to be quite
interesting."
SENATOR DONLEY suggested the bill contain a contingent effective
date so it could serve as a fall back in case a resolution does not
pass.
SENATOR HALFORD noted the vote required to override a veto is the
same vote required to approve a resolution. SENATOR WARD agreed and
said, "I thought there were four extra votes for this . . . We are
two separate bodies but I have counted and I feel very good about
the people being able to debate this in an election process - a lot
of people looking forward to that."
MS. SUSAN FISCHETTI of Eagle River testified in support of SB 69.
MS. FISCHETTI said it is important to bring Alaska into line with
other states. As the sponsor of "the English initiative," she
believes an advisory vote would be fair and popular and ensure the
attorney general is more accountable to the people of Alaska.
Number 448
MR. KEN JACOBUS opposed SB 69 but supports the idea of an elected
attorney general as another check and balance within the executive
branch. An elected position would give people another avenue of
direct input in government, encourage participation in the
political process, and result in decisions involving more
compromise. MR. JACOBUS agreed with SENATOR HALFORD and encouraged
the committee, "If you have the votes to put a constitutional
amendment on the ballot, just put the constitutional amendment on
the ballot and let the people debate it once rather than debating
it twice."
Number 423
MR. JIM BALDWIN, representing the Office of the Attorney General,
stated the Administration does not support the bill.
MR. BALDWIN did not disagree to debate the issue, but said the
issue needs to be examined "head on" to see if it is in fact a good
idea. According to MR. BALDWIN, the framers of Alaska's
Constitution opposed the proliferation of elected offices; and
believed the governor should be responsible for decision-making,
not "lay off the blame for certain decisions on his subordinates .
. . that's what we have now."
CHAIRMAN TAYLOR asked how a person becomes attorney general and MR.
BALDWIN said they are appointed by the governor and confirmed by
the legislature. CHAIRMAN TAYLOR replied that is why we have not
had an attorney general for four years. "He has never stood for
confirmation . . . and he was required to do so . . . in direct
violation, in my opinion, of the Constitution of this state. Now
who do we in the Legislature turn to to enforce the Constitution of
this state?" MR. BALDWIN argued that this Attorney General was
confirmed by the Legislature.
SENATOR HALFORD informed MR. BALDWIN he would like a written
opinion on whether the Administration believes the election of the
attorney general constitutes an amendment or a revision to the
constitution. MR. BALDWIN replied he would convey that request.
Number 352
MR. BALDWIN asserted the approach in SB 69 is not a good one. He
speculated that if the 45 governors with elected attorneys general
were polled, they would unanimously prefer appointed attorneys
general. MR. BALDWIN urged the committee to consider the problems
that occur when there is a political split between the attorney
general and the governor/lieutenant governor.
CHAIRMAN TAYLOR explained the Judiciary Committee is charged with
reviewing proposed legislation for constitutional impacts and
problems. He stated he has never before supported this measure, but
the forefathers of Alaska "never would have believed we could have
elected a Governor so corrupt that he would abuse the Constitution
for his own political purposes."
CHAIRMAN TAYLOR listed the Babbitt case, the Alaska Public Safety
Information Network "scandal" and the lack of any state
prosecutions in the World Plus ponzi scheme as examples where
"politics has been allowed to prevail over our Constitution to the
detriment of our citizens, by this Attorney General. He wanted the
appointment so much that he was willing to prostitute the law and
the Constitution in the way he has carried it out."
CHAIRMAN TAYLOR stated this is the second Administration under
which Attorney General Bothelo has refused to stand for
confirmation.
CHAIRMAN TAYLOR said the Legislature does not have standing in
court to protect our state's rights. He concluded, "If, for any
political reason, any political benefit, the decision is made on
the third floor that our Constitution is to be disregarded, that
our state is not to be protected . . . they (statehood rights) will
not be protected."
Number 268
SENATOR DONLEY asked if any states have changed from an elected
attorney general to an appointed one, or vice-versa. MR. BALDWIN
offered to research the question and let the committee know.
SENATOR DONLEY suggested the committee should be more concerned
with what the people, rather than the Governor, feel is good for
the government. MR. BALDWIN said presumably the Governor, as a
statewide elected official, knows the will of the public. SENATOR
DONLEY said it seems the best way to find out is to take a vote.
MR. BALDWIN replied taking a vote will determine what the people
who turn out to vote want, not what all the people of the state
want. SENATOR HALFORD asked MR. BALDWIN if he advocates returning
to a more limited franchise.
Number 204
SENATOR DONLEY remarked it is incredibly inconsistent of this
Administration to oppose a vote on a straightforward proposition
like this and to "continue the mantra of 'let the people vote' when
it comes to a very complex issue like subsistence." MR. BALDWIN
argued this is not a simple proposal that can be conveyed to voters
via a short ballot proposition. MR. BALDWIN concluded he does not
want to debate whether the people should vote on electing an
attorney general, but rather that the election of an attorney
general is a bad idea.
Number 128
MR. AV GROSS, former Attorney General for Alaska, expressed an
obligation to the office to testify on this issue.
MR. GROSS agreed that most states have elected attorneys general,
but said, unlike Alaska's AG, elected AG's do not prosecute crimes,
control the criminal mechanism, or argue cases for departments of
state. They have limited powers or, basically, no power at all.
MR. GROSS proposed appointed AG's are lawyers who have an interest
in politics and elected AG's are politicians who are lawyers.
MR. GROSS said the election of an attorney general results in an
adversarial relationship between the governor and the attorney
general because the attorney general is likely to have political
aspirations and the governor stands in the way. The AG often makes
trouble for the governor and initiates lawsuits against him or her.
MR. GROSS suggested such an adversarial situation does not work;
if the governor is the sole person responsible to the people for
how the executive branch of government works, the attorney general
should be responsible for his or her functions as are other
department heads.
MR. GROSS emphasized the attorney general in Alaska can accomplish
much more than AG's in other states, such as introducing uniform
sentencing requirements. The AG runs a "huge law firm" and most of
his functions have nothing to do with politics. Occasionally, a
very political issue will come up and the AG will be called to
advise the governor on the issue. As with any other client, noted
MR. GROSS, the AG does the governor no favor to tell anything less
than the whole truth. "If you advise the governor badly, it comes
back to bite you in the worst way."
TAPE 99-13, SIDE A
Number 001
MR. GROSS proposed if the AG were elected, the governor would take
no responsibility for crime or the legal actions of departments of
state, "Which, right now, you can stick 'em with." This is what the
framers wanted.
MR. GROSS conceded there have been politically motivated AG's, just
as there have been crooked legislators and bad commissioners. He
maintained elected attorneys general would be as bad as appointed
AGs; they would be selected more on their ability to get a majority
vote than their reputation as attorneys.
Number 044
MR. GROSS said it is no secret that people will want to elect the
attorney general. He recalled how he had opposed applying the Open
Meetings Act to the Legislature because he knew it would pass by an
overwhelming vote, but he also knew; "The legislature needed,
sometimes, a private debate . . . moments of quiet discussion away
from the cameras . . . it's not politically correct but it is
true." He claimed the issues are similar.
MR. GROSS said the attorney general acts like another commissioner,
and there is no more reason to elect the AG than there is to elect
the Commissioner of Natural Resources.
CHAIRMAN TAYLOR argued that the AG is not accountable to the
Legislature or the people and therefore the only recourse left to
the Legislature is impeachment.
Number 087
MR. GROSS commented that the legislature can file suit against a
decision with which it disagrees, which in fact, happened while he
was attorney general. MR. GROSS conceded that past attorneys
general have made stupid mistakes, but claimed they are only
lawyers who enjoy public service. He illustrated an example of "the
most political instance in which the attorney general was ever
involved." At the end of this case, it was shown that the attorney
general's office had worked in a non-political fashion. "It was a
credit to the Department of Law." MR. GROSS said he hoped the
Legislature wouldn't "let your irritation over a particular
decision or a particular action by one person color your thinking
so much you are willing to literally change the basic structure of
government."
Number 153
CHAIRMAN TAYLOR stated he has the utmost respect for MR. GROSS, and
he has defended his position (for an appointed attorney general)
for the past 13 years, but he can no longer do so due to the three
examples he cited, which were "totally motivated by politics." MR.
GROSS said he understood CHAIRMAN TAYLOR'S anger, but said making
the attorney general run for office won't make it a less political
office. CHAIRMAN TAYLOR replied he knows no other way to prevent
"that type of abuse from occurring in the future." MR. GROSS
responded that the governor would fire an attorney general who made
a decision contrary to the popular will. CHAIRMAN TAYLOR replied,
"I've not seen any concern about ethical standards, or anything
else, so far, up there . . ."
MR. GROSS stated "It is not a good idea to change the basic nature
of the system because you are angry or upset about a particular
action by someone who holds the office . . . change the person,
don't change the office." CHAIRMAN TAYLOR replied, "If there were
a way to do that, I would . . . unfortunately, there is not."
MR. GROSS concluded his testimony by saying there have been bad
people who have served as attorneys general and he thinks the
people who serve will be worse if they are forced to seek the
office through an election.
CHAIRMAN TAYLOR thanked MR. GROSS for his testimony. With no
further testimony, CHAIRMAN TAYLOR adjourned the meeting at 3:27
p.m.
| Document Name | Date/Time | Subjects |
|---|