Legislature(1999 - 2000)
03/17/1999 01:45 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
March 17, 1999
1:45 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
SENATE BILL NO. 1
"An Act relating to good time and release on mandatory parole."
-MOVED CSSB 1(JUD) OUT OF COMMITTEE
SENATE BILL NO. 96
"An Act relating to access to criminal history records and to
revocation of or failure to renew certain licenses based on
criminal conduct or alleged criminal conduct; and providing for an
effective date."
-HEARD AND HELD
SENATE BILL NO. 99
"An Act to clarify the meaning of 'decennial census of the United
States' in Article VI, Constitution of the State of Alaska, and to
prevent discrimination in the redistricting of the house of
representatives and the senate."
-MOVED SB 99 OUT OF COMMITTEE
SENATE BILL NO. 100
"An Act relating to the payment by indigent persons for legal
services and related costs."
-MOVED CSSB 100(JUD) OUT OF COMMITTEE
Confirmation Hearing for Barbara Miklos to the Alaska Bar
Confirmation Hearing for Diane Brown to the Commission on Judicial
Conduct
PREVIOUS SENATE COMMITTEE ACTION
SB 1 - See Judiciary Committee minutes dated 3-15-99.
SB 96 - See Judiciary Committee minutes dated 3-15-99.
SB 99 - No previous action to report.
SB 100 - See Judiciary Committee minutes dated 3-15-99.
WITNESS REGISTER
Ms. Barbara Miklos
3208 Greenland Drive
Anchorage, AK 99517
POSITION STATEMENT: Stood for Confirmation
Mr. Bruce Richards, Program Coordinator
Department of Corrections
240 Main Street ste. 700
Juneau, AK 99801
POSITION STATEMENT: Testified on SB 1
Mr. Michael Stark, Assistant Attorney General
Department of Law
PO Box 10300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified on SB 1
Mr. Tom Moffatt
Staff to Senator Tim Kelly
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SB 99
Senator Tim Kelly
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Sponsor of SB 99
Mr. Jim Baldwin, Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Opposed SB 99
Mr. Doug Wooliver, Administrative Attorney
Alaska Court System
820 West 4th Avenue
Anchorage, AK 99501-2005
POSITION STATEMENT: Testified on SB 100
ACTION NARRATIVE
TAPE 99-19, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:45 and announced the committee would first take up the
confirmation hearings.
The first candidate for confirmation was MS. BARBARA MIKLOS to the
Alaska Bar Association (ABA). CHAIRMAN TAYLOR thanked MS. MIKLOS
for her years of public service and her willingness to continue to
serve.
MS. MIKLOS stated she is a proud, long time resident of Alaska who
has traveled extensively in state and appreciates the state's
diversity.
Number 010
SENATOR DONLEY declared he, as a member of the Alaska Bar, has a
conflict of interest. He moved to be excused from voting on the
confirmation hearings. There was objection from SENATOR TORGERSON,
and SENATOR DONLEY's motion was denied.
SENATOR TORGERSON moved and asked unanimous consent that he be
excused from the confirmation hearings also. There was objection
from SENATOR ELLIS and SENATOR TORGERSON's motion was denied.
CHAIRMAN TAYLOR served notice of his conflict of interest, as a
member of the Alaska Bar. There was objection from SENATOR DONLEY
and CHAIRMAN TAYLOR's motion was denied.
Number 035
CHAIRMAN TAYLOR asked MS. MIKLOS how long she had served on the
Board of the Alaska Bar and if she had any concerns to report to
the committee. MS. MIKLOS said she has served on the Board for
years and, as a public member, she has been both proud and
frustrated by the process. She said the Bar often has to make hard
decisions and she is surprised by the level of seriousness of
members and the conscientious manner in which they conduct
themselves.
Number 070
SENATOR TORGERSON stated he had noticed on MS. MIKLOS's resume she
is the Director of the Child Support Enforcement Division. He asked
if this has ever come in conflict with her role as an ABA Board
member. MS. MIKLOS said only one child support issue has been
before the Bar since she has served and she did not attend that
meeting. She said if she had, she would have recused herself.
SENATOR DONLEY asked MS. MIKLOS what role the Board plays in
directing the budget of the Bar. MS. MIKLOS replied the Board
decides the level of the budget, and stated she has personally
advocated budget reductions.
SENATOR DONLEY said he has been very frustrated with the Bar over
several issues. CHAIRMAN TAYLOR seconded his comments.
Number 147
SENATOR TORGERSON moved that the committee forward the name of MS.
MIKLOS to the full body for confirmation. Without objection, it was
so ordered.
CHAIRMAN TAYLOR announced next was MS. DIANNE BROWN, candidate for
confirmation to the Judicial Conduct Commission.
MS. BROWN stated she has served on the Judicial Conduct Commission
(JCC) since 1996 and has 20 years experience in law enforcement.
She said she takes her role on the Commission very seriously and
she appreciates being considered for confirmation.
CHAIRMAN TAYLOR thanked MS. BROWN for her years of service as an
Alaska State Trooper.
SENATOR TORGERSON observed the JCC holds private meetings. He asked
MS. BROWN if she thought these meetings should be public. MS. BROWN
explained the JCC conducts both public and private sessions. The
Commission conducts investigations and holds private discussions of
possible judicial misconduct.
SENATOR TORGERSON asked if the JCC's decisions are public. MS.
BROWN replied all JCC decisions are referred to the Supreme Court.
SENATOR TORGERSON stated he knows of cases in which decisions have
not been made public. MS. BROWN asked if SENATOR TORGERSON was
referring to decisions of the Judicial Conduct Commission or the
Judicial Council. SENATOR TORGERSON replied, "Both of you operate
in a cloud of secrecy as far as I'm concerned, and I don't think
much of it."
Number 220
CHAIRMAN TAYLOR recalled that the JCC does have the option of
making a case public as part of the censure they impose. MS. BROWN
agreed.
SENATOR DONLEY restated SENATOR TORGERSON's question, asking if MS.
BROWN feels the process should be more open to the public. MS.
BROWN replied no, not at the time the JCC receives a complaint; an
investigation should first take place. SENATOR DONLEY asked if the
matter should be public once guilt is established. MS. BROWN said
that depends on the violation.
SENATOR DONLEY noted the voters in Alaska are asked to confirm
judges on the ballot. He asked how they can make an educated
decision without information on judicial misconduct from the JCC.
MS. BROWN explained that individuals making charges receive
information about the dispensation of a case, but that information
is not always made available to the general public. SENATOR DONLEY
said this works to protect judges and the status quo; MS. BROWN
disagreed.
Number 260
SENATOR DONLEY asked how many judges had disciplinary actions taken
against them in 1998. MS. BROWN did not recall, but guessed it was
no more than 10. SENATOR DONLEY said he has seen responses from the
JCC that confirm that action has been taken, but does not reveal
what action has been taken. He contended there should be more of an
effort to promote public information from the public members on the
Commission. He reminded MS. BROWN that public censure is one of the
tools of the Commission and it should be used.
CHAIRMAN TAYLOR concurred that public notice is one of the "weapons
within the arsenal" of the JCC. He clarified it is the
responsibility of the Judicial Council to inform the public before
an election of their position on judicial officers appearing on the
ballot for confirmation. CHAIRMAN TAYLOR said he has been critical
of the Judicial Council for failure to do this.
SENATOR DONLEY asked MS. BROWN if the JCC informs the Judicial
Council of disciplinary findings against judges. MS. BROWN was not
sure.
Number 355
SENATOR TORGERSON reminded MS. BROWN she is on the JCC to represent
the public. He stated, "I just hope that you would . . .uphold the
rights of the public in making sure this information is more
available to the public . . ." He said he believes that judges
should be held to the same standard imposed on the Legislature. MS.
BROWN assured the committee that all complaints received by the JCC
are taken seriously and thoroughly investigated.
Number 387
SENATOR ELLIS moved that the committee forward MS. BROWN's name to
the full body for confirmation. SENATOR DONLEY objected, saying "I
really would like my public representative on this particular
commission to have a better sense of the need for the public to get
the greatest amount of information possible to make educated
decisions about the retention of judges." With objection, MS.
BROWN's name moves from committee to the full Senate for
confirmation.
CHAIRMAN TAYLOR announced SB 99 would be the next order of
business.
SB 99-REDISTRICTING BOARD/CENSUS FIGURES
MR. TOM MOFFATT, staff to Senator Tim Kelly, presented SB 99. MR.
MOFFATT stated SB 99 will mandate the use of "actual count" census
figures for reapportionment rather than numbers derived from
statistical models in an effort to stop discrimination against
members of the military.
MR. MOFFATT testified that prior reapportionment boards have either
assigned a percentage figure to military members or ignored them
completely. SB 99 will abolish this type of "occupational
discrimination" and establish a statutory bar that will assure
members of the service are "no longer treated as second-class
citizens."
MR. MOFFATT explained SB 99 will clarify that only numbers derived
from an actual headcount will be used for redistricting. Figures
resulting from sampling or estimates will be prohibited by statute.
This will facilitate the work of the Reapportionment Board and
avoid litigation, according to MR. MOFFATT.
MR. MOFFATT informed the committee the sponsor had received a
"rather amusing" fiscal note from the Department of Law. He said,
"The fiscal note should be, we would hope would be, disregarded."
Number 463
SENATOR ELLIS said he appreciated MR. MOFFATT clarifying his remark
"to make it clear that Al Vezey and Tuckerman Babcock didn't really
undercount the military folks in the State of Alaska - some people
got the impression they counted them several times."
SENATOR ELLIS asked if the issue isn't residency, rather than job
class. MR. MOFFATT replied,
"We would contend that every human being in Alaska,
whether this is a homeless person on 4th Ave . . .
whatever their race or color, whatever their status, they
deserve equal representation; they deserve to be actually
counted; . . . not to be counted twice or thrice, not to
be discounted, but if they are counted, they should be
counted as a human being regardless of their status and
represented equally with every other person."
MR. MOFFATT insisted that the traditional U.S. census has counted
all people including the homeless and transients. SENATOR ELLIS
asked if MR. MOFFATT sees a state interest in knowing who is an
actual resident of Alaska. MR. MOFFATT said once you start down
that "slippery slope" it is difficult to stop. He prefers to treat
all people equally, especially for the purposes of representation.
CHAIRMAN TAYLOR noted the bill's sponsor, Senator Tim Kelly, had
arrived and asked if he cared to make any comments on the bill.
SENATOR KELLY remarked, "I have no trust in Bill Clinton or his
administration and I don't want to be counting any Clinton ghosts
. . ."
Number 505
MR. JIM BALDWIN, representing the Attorney General's Office, raised
two issues in regard to SB 99. First, MR. BALDWIN proposed that
"unless we get another million and a half people here", Alaska has
no stake in the apportionment of the U.S. Congress. In 2000, the
census bureau may come out with two numbers: one based on
enumeration and another based on statistical sampling. Statistical
sampling numbers are intended to remedy an undercount, such as the
huge undercount of the "worst census ever in the history of this
country" in 1990. MR. BALDWIN suggested children, renters and the
homeless are undercounted due to the enumeration technique. MR.
BALDWIN concluded that the decision of the U.S. Supreme Court on
this question is still unclear and the issue may be decided on a
national level before the 2000 census.
MR. BALDWIN explained the fiscal note is due to a survey the
Department of Law will have to conduct if they wish this bill to
receive pre-clearance from the U.S. Justice Department, under the
Voting Rights Act. The survey will serve to show the Justice
Department that the legislation does not discriminate against
minority voters. MR. BALDWIN said the only other option is to seek
pre-clearance from a three-judge panel in the District of Colombia.
MR. BALDWIN said military reductions have changed Alaska since
1990, and it is likely retrogression has occurred. Under the Voting
Rights Act, the State has to justify that no discriminatory effect
was the cause of this retrogression. MR. BALDWIN stated, "These
kinds of bills just don't come cheaply . . . when you change these
kind of laws that affect voting . . . we need to have the financing
and the tools to be able to deal with that." MR. BALDWIN said the
fiscal note reflects the cost of the legislation, not any desire to
obstruct the legislation.
Number 580
CHAIRMAN TAYLOR asked if some cases brought under the Voting Rights
Act had been removed by judicial decision. MR. BALDWIN said there
have been cases in which the Justice Department has been
criticized, but, he said the Justice Department appears to be
uncowed.
CHAIRMAN TAYLOR asked if the 2000 census will still be required to
consider cohesive tribal and linguistic groupings to be sure they
have an advantage over other people in the same district. MR.
BALDWIN said he might phrase it differently, but the interests of
minority voters would have to be considered in the reapportionment
plan.
TAPE 99-19, Side B
Number 593
SENATOR KELLY commented SB 99 mandates the enumeration count be
used for apportionment, it does not mandate its use for other
purposes.
Number 586
SENATOR TORGERSON moved SB 99 from committee with individual
recommendations. SENATOR ELLIS objected. Roll was called: voting
yea were SENATOR DONLEY, SENATOR TORGERSON and CHAIRMAN TAYLOR.
SENATOR ELLIS voted nay. So SB 99 moved from committee with
individual recommendations.
SB 100-REIMBURSEMENT FOR PUBLIC DEFENDER
Number 580
SENATOR DONLEY moved the adoption of a committee substitute for SB
100. SENATOR ELLIS objected for the purpose of an explanation of
the changes from the previous version of the bill.
MR. DOUG WOOLIVER, representing the Alaska Court System, explained
the amendments adopted in the previous meeting.
SENATOR ELLIS asked, "What are indigent persons losing, from what
they might have now, in terms of rights to representation and
coverage of legal costs?" SENATOR DONLEY said the Public Defender
should answer that question.
Number 530
CHAIRMAN TAYLOR noted that BLAIR MCCUNE, the Deputy Director of the
Public Defender Agency, sent a written response to the committee.
He included the language that requires the public defender to
represent a client to the same extent a private attorney would
represent a paying client. CHAIRMAN TAYLOR said this standard has
been used to justify the retainer of more than one private attorney
(at state expense) on behalf of a public defender client.
SENATOR ELLIS concluded the goal of this language is to specify the
standard of representation offered by the Office of the Public
Defender and to make the standard cost less. SENATOR DONLEY replied
that is correct. SENATOR ELLIS asked if legislation sponsored by
Representative Brian Porter that passed through the committee last
year did not solve this problem. SENATOR DONLEY remarked,
"Apparently not."
Number 505
SENATOR TORGERSON moved CSSB 100(JUD) out of committee with
individual recommendations and the accompanying fiscal notes.
SENATOR ELLIS objected. Roll was called: voting yea were SENATOR
DONLEY, SENATOR TORGERSON, SENATOR HALFORD and CHAIRMAN TAYLOR.
SENATOR ELLIS voted nay. So, CSSB 100(JUD) moved from committee
with individual recommendations.
SB 1-NO MANDATORY PAROLE RELEASE WITHOUT GED
SENATOR DONLEY explained the proposed committee substitute
addresses SENATOR HALFORD's concern about people who may be unable
to attain educational requirements. The bill allows the
Commissioner of the Department of Corrections discretion to certify
that it is not reasonable for certain people to meet the standard.
Those people would then be excused from the requirements. The
committee substitute also includes a provision that makes a person
ineligible for the program where the program is not offered by the
Department.
Number 468
SENATOR HALFORD moved the adoption of the committee substitute for
SB 1. Without objection, the committee substitute was adopted.
MR. BRUCE RICHARDS, representing the Department of Corrections,
said the Department has a minor technical amendment to the
committee substitute. The Department would also like the committee
to consider making the GED a mandatory requirement of parole,
rather than a condition for receiving good time. This would remove
the burden of providing the program from the Department and put the
responsibility and cost of the program on the offender. MR.
RICHARDS said the Department would encourage people to start the
program while incarcerated and inform them that attaining a GED
would be a mandatory condition of parole. This would reduce the
Department of Corrections' fiscal note and is likely to also reduce
the fiscal note from the Department of Law, while still
accomplishing the goal of increasing the educational level of
inmates.
Number 427
MR. MICHAEL STARK, representing the Department of Law, testified
the Department supports MR. RICHARDS' idea as a less costly and
problematic way to accomplish the goals of SB 99.
MR. STARK suggested on page 2 of the bill, lines 1 and 25, the word
"certify" be replaced with the word "determine". He explained
certify connotes some kind of official action that does not exist.
He also suggested a change on page 3, line 10 and 11: make the
effective date apply to "persons whose crimes are committed on or
after the effective date. He explained the court now bases its
analysis on the date a person's crime is committed, not the date of
conviction.
Number 400
SENATOR DONLEY moved, as Amendment #1, to insert the word
"committed" after the word "crimes" on line 11, page 3. Without
objection, Amendment #1 was adopted.
SENATOR DONLEY moved, as Amendment #2, replacing the word
"certifies" on page 2, lines 1 and 25, with the word "determines".
Without objection, Amendment #2 was adopted.
Number 393
SENATOR ELLIS asked for an explanation of how the Commissioner
would excuse some people from educational requirements without
opening the Department to litigation based on unequal treatment of
some groups of prisoners. CHAIRMAN TAYLOR restated the same
question, asking "Is there an equal protection problem here?" MR.
STARK replied it is an issue, but he believes a "rational basis"
argument can be made against an equal protection challenge.
CHAIRMAN TAYLOR commented, "There would at least be an objective
standard . . ." MR. STARK agreed.
Number 371
SENATOR HALFORD stated for the record, "This committee believes it
is an objective standard and it should be applied in an objective
manner . . . the Administration, if they have any problems doing
that, they should come back to us, as it is our expectation that it
be applied in a manner that is constitutional." CHAIRMAN TAYLOR
asked if there was objection to that statement. SENATOR ELLIS said
"We are making an attempt to make it an objective standard, but it
is by its nature subjective . . . that may be our opinion, but I
don't know that is fact." CHAIRMAN TAYLOR clarified, "It is the
intent of this committee . . . this would be an objective standard
applied without violating equal protection . . ."
MR. STARK assumed the committee had no interest in MR. RICHARDS'
proposal. CHAIRMAN TAYLOR said he'd prefer to see inmates attain
these educational requirements as early as possible, though he
realizes this will increase the cost to the State.
Number 346
SENATOR DONLEY noted that, if the bill was changed and an inmate
failed to attain their GED, a Public Defender would be required to
represent them at a parole revocation hearing. MR. STARK affirmed
this is true.
CHAIRMAN TAYLOR asked if there was further testimony on CSSB
1(JUD). There was none.
Number 330
SENATOR DONLEY moved CSSB 1(JUD) with individual recommendations
and the accompanying fiscal notes. Without objection, CSSB 1(JUD)
moved from committee.
CHAIRMAN TAYLOR explained there was further work to be done on SB
96 and the bill would be up for consideration at the next meeting.
With nothing further to come before the committee, CHAIRMAN TAYLOR
adjourned the meeting at 3:00 p.m.
| Document Name | Date/Time | Subjects |
|---|