Legislature(2001 - 2002)
04/27/2001 01:48 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
April 27, 2001
1:48 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Dave Donley, Vice Chair
Senator John Cowdery
Senator Gene Therriault
Senator Johnny Ellis
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 170(L&C)
"An Act relating to wage and hour protections for employees of the
Alaska Railroad Corporation; and providing for an effective date."
MOVED CSSB 170 (L&C) OUT OF COMMITTEE
SENATE BILL NO. 177
"An Act relating to driving while intoxicated and to presumptions
arising from the amount of alcohol in a person's breath or blood;
and providing for an effective date."
HEARD AND HELD
CS FOR SENATE BILL NO. 66(L&C)
"An Act relating to the authorizations for certain state financial
institutions of certain powers and limitations; relating to
confidential records of depositors and customers of certain
financial institutions; relating to the Alaska Banking Code, Mutual
Savings Bank Act, Alaska Small Loans Act, and Alaska Credit Union
Act; amending Rule 45, Alaska Rules of Civil Procedure, Rules 17
and 37, Alaska Rules of Criminal Procedure, and Rule 24, Alaska Bar
Rules; and providing for an effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 193(FIN)
"An Act relating to the primary election and to the nomination of
candidates for the general election; and providing for an effective
date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 172(FIN) am
"An Act relating to therapeutic courts for offenders and to the
authorized number of superior court judges."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
SB 170 - See Labor and Commerce minutes dated 4/12/01.
SB 66 - See Labor and Commerce minutes dated 2/20/01, 3/15/01,
3/29/01 and 4/3/01.
HB 193 - No previous action to consider.
HB 172 - No previous action to consider.
WITNESS REGISTER
Representative Lisa Murkowski
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 230.
Mr. Kevin Bergsrud
State Legislative Director
United Transportation Union
No address furnished
POSITION STATEMENT: Supported SB 170.
Mr. Steve Cain
6121 DeArmoun Road, #A
Anchorage, Alaska 99516
POSITION STATEMENT: Supported SB 170.
Ms. Loretta Brown
Staff to Senator Ward
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Introduced SB 177.
Mr. Loren Jones
Department of Health &
Social Services
PO Box 110601
Juneau, Alaska 99801-0601
POSITION STATEMENT: Supported SB 177.
Mr. Al Near
PO Box 80847
Fairbanks, Alaska 99708
POSITION STATEMENT: Supported SB 177.
Ms. Christi Rowinski
Friends of Tom
2358 Pruitt Lane
Fairbanks, Alaska 99709
POSITION STATEMENT: Supported SB 177.
Mr. Blaire McCune, Deputy Director
Alaska Public Defender Agency
900 West 5th, #200
Anchorage, Alaska 99501
POSITION STATEMENT: Opposed to SB 177.
Mr. Terry Elder, Director
Division of Banking, Securities & Corporations
Department of Community & Economic Development
PO Box 110807
Juneau, Alaska 99811-0807
POSITION STATEMENT: Testified on SB 66
Mr. Jerry Reinwand
Alaska Peddler
No address furnished
Juneau, Alaska 99801
POSITION STATEMENT: Supported SB 66.
Mr. Joe Schierhorn, Sr. Vice President
Northrim Bank
PO Box 241489
Anchorage, Alaska
POSITION STATEMENT: Supported SB 66.
Ms. Sarah Felix, Assistant Attorney General
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified on HB 193.
Representative John Coghill
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified on HB 193.
Ms. Gail Fenumiai, Election Program Specialist
Division of Elections
Office of the Lieutenant Governor
PO Box 110017
Juneau, Alaska 99811-0017
POSITION STATEMENT: Testified on HB 193.
Representative Brian Porter
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 172.
Ms. Janet McCabe
Partners for Downtown Progress
1326 K Street
Anchorage, Alaska 99501
POSITION STATEMENT: Supported HB 172.
Mr. Dean Guaneli, Chief Asst. Attorney General
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Supported HB 172.
Mr. Tom Wright
Staff to Representative Porter
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified on HB 172.
ACTION NARRATIVE
TAPE 01-24, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order at 1:48 p.m. Senator Ellis, Senator Therriault, and
Chairman Taylor were present. Senator Cowdery arrived at 2:13 p.m.
and Senator Donley arrived at 4:00 p.m. Chairman Taylor announced
the first order of business would be SB 170.
SB 170-RAILROAD EMPLOYEE SALARIES AND WAGES
CHAIRMAN TAYLOR announced SB 170 to be up for consideration.
REPRESENTATIVE LISA MURKOWSKI, sponsor of SB 170, explained that
the bill clarifies that Alaska Railroad employees are subject to
the Alaska Wage and Hour Act. There is an exemption, however, in
that United Transportation Union (UTU) members can opt out of the
Wage and Hour Act if they do so in mutual agreement with the
railroad and the collective bargaining unit. She said that might
raise concerns about whether or not this leaves employees of UTU
open to problems with the Wage and Hour Act but "They are covered
under the federal Hours of Service Act."
SENATOR THERRIAULT asked if SB 170 is the Senate version of HB 230.
REPRESENTATIVE MURKOWSKI responded that is correct.
CHAIRMAN TAYLOR said the House version hadn't been noticed yet, but
he would waive it on Monday, since the committee was hearing it
today. He then took public testimony.
MR. KEVIN BERGSRUD, State Legislative Director of the United
Transportation Union, and a locomotive engineer with the Alaska
Railroad Corporation, stated support for SB 170.
MR. STEVE CAIN, Anchorage, said he was a 20-year Alaska Railroad
employee and locomotive engineer and is currently representing UGU
at the negotiating table. He has been working with the gentlemen
whose retirement would be helped by this bill. Mr. Cain stated:
They are all 25 plus year employees. They were federal
employees who opted to stay with the railroad and thus
were left in the Civil Service Retirement system (CSR).
Their basic day is not an eight-hour day and that in the
current situation, only the earnings from those first
eight hours are being considered for figuring their
retirement. That's why we need this legislation.
SENATOR THERRIAULT moved to pass CSSB 170(L&C) from committee with
individual recommendations and attached fiscal notes. There were no
objections and it was so ordered.
SB 177-DRIVING WHILE INTOXICATED:BAC LEVEL/FINES
CHAIRMAN TAYLOR announced SB 177 to be up for consideration.
MS. LORETTA BROWN, staff to Senator Ward, said that SB 177 lowers
the blood alcohol content from .10 to .08 and increases fines for
first time offenders. It also goes one step further and lowers the
legal limit of blood alcohol content to .04 for those with one
prior driving under the influence (DUI) conviction. Anyone
convicted of a second offense will lose his or her driving
privileges for life and be subject to higher fines. Ms. Brown
stated, "There is no second chance. This is basically a zero
tolerance law for convicted drunk drivers making it illegal for
them to drink at all after one conviction."
MS. BROWN said that federal penalties are being strengthened in
2004 if the state does not lower the blood alcohol level to .08.
Number 620
SENATOR ELLIS said that .08 legislation has been around for years
but no public hearing was granted. He asked if there was a reason
it was being brought forward now.
MS. BROWN replied that some of Senator Ward's constituents came to
him who had a loved one hurt or killed by a first-time alcohol
offender. In addition, he thought the timing to pass this
legislation might be good since the federal legislation was being
worked on, too.
SENATOR ELLIS said he appreciated the change of heart.
MR. LOREN JONES, Department of Health and Social Services, stated
support for SB 177 and said he would answer questions on the fiscal
note.
SENATOR THERRIAULT asked what the administration's position is on
the lifetime revocation of driving privileges.
MR. JONES replied that he couldn't tell him.
Number 820
MR. AL NEAR, Fairbanks, stated support for SB 177. He thought it
was a step in the right direction. He especially likes the part
about the repeat offender, because those are the people who cause
the fatalities. He said that in 1999, Alaska led the nation in
highway accidents in which alcohol was a factor. Forty out of the
76 fatal accidents for that year involved alcohol, about 53
percent. It wasn't much better in the year before that. In 1998,
people with blood alcohol concentrations above .08 were involved in
2,750 auto crashes in which 29 people died and 1,600 were injured.
In accidents involving drivers with an alcohol content of less than
.08, there were only 100 crashes killing 2 people and injuring 100.
MR. NEAR said he has found that a person, male or female, of
average weight could have three to four drinks per hour before they
reach the .08 level. He thought that social drinkers would not
drink that much.
SENATOR THERRIAULT said Mr. Near's testimony was on the .08 level,
which he didn't have a problem with. He expressed concern about the
lower level of .04 for those operating a piece of equipment that
requires a chauffeur drivers license (CDL). A second offender would
lose his or her license for life if he or she was pulled over for a
tail light being out and the officer smelled alcohol and gave them
a breathalyzer test. He asked what the justification was for that.
MR. NEAR replied that it is actually written in the statutes that
commercial drivers are considered to be impaired in their driving
if they have a blood alcohol content of .04. He asked, "How could
it be then, that you and I can drive with a blood alcohol content
of .08, or as it stands right now .10, and be safe? How can we not
have some impairment ourselves? ... We are indeed impaired at .04
and even lower than that."
MR. NEAR said that one important thing to remember is that repeat
offenders cause 80 percent of the deaths.
SENATOR THERRIAULT responded:
Mr. Chairman, I'm not sure it's equal protection or what,
but you could have somebody that stops and plays pool or
whatever after work and drives home every day at .044 -
Every day he drives home that way. But somebody that had
a conviction - language in section 8 talks about previous
offenses - you could have somebody that had a previous
offense - 10 years ago - and they drive home and get
pulled over for a tail light or something and blow a .041
tomorrow and they lose their license for the rest of
their life. I don't know how that gets applied and
reviewed by the courts…
He asked for something that could be sensibly enforced and applied
across our society.
MR. NEAR asked Senator Therriault what he thought about a second
offense and an .08 level as a justification for a lifetime
revocation.
SENATOR THERRIAULT replied that he thought that was much more
defensible, but he thought Mr. Near's testimony sounded like he
wanted the general DUI law to be down at .08.
Number 1444
MS. CHRISTI ROWENSKI, representing Friends of Tom, said the
committee needs to think about what it means when the National
Highway Transportation Safety Administration statistics say that
reduction to .08 has the potential of saving hundreds of lives and
reducing thousands of serious injuries on the highways if
implemented by all states. She said that drunk driving laws,
sustained public education, information efforts, and vigorous and
consistent enforcement can save a whole lot of lives. She said they
get asked if an experienced drinker gets as impaired, but she
assured them that experienced drinkers are significantly impaired
at .08. She said that people are impaired in regard to critical
driving tasks, such as divided attention, complex reaction times,
steering and lane changing.
MR. BLAIR MCCUNE, Alaska Public Defender Agency, said his agency is
mainly concerned with the permanent loss of license provision
because people can be rehabilitated through alcohol treatment. He
said:
Permanent loss of license would go against people who
were insured and licensed to be driving on the road.
License revocations - now people have hope, go through
treatment, demonstrate sobriety, they can get their
license back. At that point they have to get special risk
insurance. Having people insured rather than people who
just give up hope and drive anyway is preferable. I don't
think the deterrent effect, although I'm sure it would do
some, would be strong enough to justify not having a
chance to get your license back if you demonstrate
sobriety and go through the programs that the Division of
Motor Vehicles feels are appropriate. That is our main
concern with the bill.
CHAIRMAN TAYLOR asked how long he had been involved in criminal
litigation in the state.
MR. MCCUNE replied that he has been a public defender for 20 years.
CHAIRMAN TAYLOR asked if he personally tried DUI cases during that
time.
MR. MCCUNE said he did.
CHAIRMAN TAYLOR asked for how long.
MR. MCCUNE replied that most of the DUI cases were in Fairbanks
some time ago.
CHAIRMAN TAYLOR asked, during his experience with DUIs, at what
level of intoxication he normally found that the arresting officer
had probable cause to pull someone off the road.
MR. MCCUNE replied that most of his cases had to do with blood
alcohol levels quite a bit over .10. "The police would take video
tapes of those people. As people got higher levels, impairment on
the video would become very obvious." He said he wasn't qualified
to talk about probable cause because most of his experience had
been with high blood alcohol levels.
CHAIRMAN TAYLOR said he asked because the committee has had
hearings on the .08 level in the past and all officers who
testified indicated that they would not pull over one additional
person in the state if we went to .08 because the objective
symptoms necessary to justify pulling someone over are not
exhibited until a driver is in the .10 category. That is why the
fiscal notes for .08 have been very small.
CHAIRMAN TAYLOR assured the committee that they would pass a .08
bill out this year, primarily because of the National Highway
Transportation Safety Act, which would withhold millions of dollars
in the future from the State of Alaska for highways if Alaska does
not adopt this standard. He said he did not want to preclude the
House bill which had other remedies and would hold the bill to see
what other amendments are submitted.
SB 66-FINANCIAL INSTITUTIONS
CHAIRMAN TAYLOR announced SB 66 to be up for consideration.
MR. TERRY ELDER, director of the Division of Banking, Securities
and Corporations, noted that HB 106, the companion bill to SB 66,
just passed out of the House Labor and Commerce Committee. He
hoped it would be scheduled for a floor vote shortly. He said the
main issue surrounding SB 66 seems to be privacy but the bill makes
other changes that are non-controversial. He explained:
Right now, in current law there's a requirement for banks
to publish their quarterly statements of condition in
newspapers. There's a provision in this bill that will
allow them to also publish that electronically as an
alternative. It's much cheaper; they'll still make the
same information available to customers on request
instead of just in newspapers.
For mutual savings banks, right now in current chapter,
the directors, whom they call trustees, are treated
different from directors of banks in terms of arms length
dealing that they would have with the mutual savings
banks and in borrowing from the mutual savings bank.
That's making it much more difficult for the mutual
savings bank to find people who are willing to be
trustees and who are knowledgeable in business
activities. So, there's provisions in this bill that
would essentially put the trustees of a mutual savings
bank on the same level as the directors of the commercial
banks.
There's also currently a requirement for the automatic
teller machines to be approved by our division. And what
we're putting in here is a provision that will allow a
notice filing rather than approval so we'll know where
the services are. We don't feel that there's any public
benefit from our making an approval of whether or not an
ATM is placed on one corner versus another corner.
Also, in the credit union chapter, there's no provision
for ATMs. So, this includes a provision there. It also
equalizes the legal lending limits in Alaska with the
federal limits. It, therefore, removes a barrier for
institutions to decide to take the state charter rather
than the national charter.
Those are all things we think are good for the industry.
It also makes sense from a regulatory standpoint, but of
course they get overshadowed by the big policy issue on
policy.
SENATOR ELLIS asked if there was language that affects the
legislature's future ability to cap fees in any way.
MR. ELDER replied no; it only applies to location. He added from
the division's standpoint, current law (changed in 1994) limits
where staff can borrow money. Previously, it said they couldn't
borrow from state chartered institutions, obviously because they
examine them. In 1994, that was changed to any institution that
receives a certificate of authority. Mr. Elder noted:
The problem with that is that we currently also issue
permits and certificates to national banks that branch
into Alaska. So, if you had enough branching and enough
purchasing of state charter banks, our staff would have
difficulty banking anywhere in Alaska. This also takes us
back to the original language that we had before us
saying that our staff can't borrow from state chartered
institutions.
MR. ELDER explained further:
Obviously, the big issue is privacy. Everyone knows, but
I'll state it briefly, what the issue is and that is
Gramm-Leach-Blighly, a federal law, passed and allows -
the term is sharing, but it also covers selling of
information with non-affiliated third parties which is
anybody who is not an affiliate. So, it's a lot of folks.
That requires them to offer the public the ability to opt
out of that kind of sharing. We have been on record and
very forcefully so in both the Senate and the House that
we don't think opt out is sufficient. We have opt in in
the current banking code and we were proposing in SB 66
that the opt in be maintained. The opt in was maintained
in the House Labor and Commerce Committee, but not in the
Senate.
So, therefore, when it came over here, we sent you a
letter, Mr. Chairman, that indicated our desire for you
to delete the reference to Gramm-Leach-Blighly that would
remove the opt out language and would make it, therefore,
opt in.
CHAIRMAN TAYLOR said he had an amendment prepared to do that.
MR. ELDER said that was good to hear. He believes that as long as
the dialogue between his division and industry was about sharing
everything in one's file with everybody in the world, the two would
always be at each end of the spectrum. There would be no compromise
and it would be the legislature's call for one of the extremes. He
thought there was still some middle ground but said, "We just had
to find it."
He said they met with representatives of the banker's association
and developed reasonable compromise language that retains the opt
in requirement, generally speaking. So, the bankers have gone all
the way from wanting to opt out for everything to agreeing to opt
in. Mr. Elder commented:
However, we've included a section (d) in AS 06.01.028,
the proposed privacy section, which allows financial
institutions to share information with other firms who
provide their own services. For example, if they have
checks printed and statements printed and things like
that, they can do that and the compromise language that
we came up with allows them to enter into joint marketing
agreements for financially related services.
TAPE 01-24, SIDE B
MR. ELDER continued:
Where those marketing partners would sign an agreement to
also be bound by the privacy provision of our code, the
opt in, we view that as a reasonable compromise on the
basis that generally we are still at opt in. However, we
also have to remember that the sharing of information
among affiliates is not restricted. The Fair Credit
Reporting Act on the federal level allows the financial
institution to share information among affiliates and
prohibits states from restricting that kind of sharing of
information until January 1, 2004. After that date, in
fact, states can adopt more restrictive privacy
provisions covering affiliates, but they have to pass the
law after that date and specifically reference the Fair
Credit Reporting Act to do that.
MR. ELDER said further:
In the meantime banks and other institutions that have a
large affiliate structure can share the information
without restriction. That puts smaller banks that are
largely but, not only state chartered institutions that
don't have an affiliate structure at a significant
competitive disadvantage. We don't think that's healthy
for state chartered institutions. We don't think it's
healthy for smaller banks. So, what we're trying to do in
section (d) is to level the playing field between the
banks that have the larger affiliate structure with the
banks that have the smaller or no affiliate structure.
MR. ELDER explained that this information sharing is limited to
what is necessary to do these things, "So, it's not all the
information in a file."
It is limited only to financial related products, limited to joint
marketing efforts and to partners that are willing to subject
themselves, even though they don't have to otherwise, to the Alaska
Privacy Code. Mr. Elder noted, "With those kinds of limitations,
it's sufficiently tight enough for us to feel comfortable even
though we have made it very clear we have been and remain extremely
concerned and supportive of more restrictive privacy provisions."
He said that the small neighborhood banks are going to have
difficulty competing and staying independent unless regulators make
some reasonable accommodations for privacy of information. He
thought it was still a significant action on the part of the
legislature to continue the higher privacy provisions that we have
had for the last 30 years in Alaska and yet still make reasonable
accommodations to smaller banks to operate.
CHAIRMAN TAYLOR noted that Mr. Elder's comments were on a proposed
amendment to SB 66.
MR. ELDER said that is correct and that he was addressing section
(d) that was currently in the committee substitute before them. He
was also discussing the differences between HB 106 and SB 66.
CHAIRMAN TAYLOR asked if they used his list of differences as an
amendment, if the examination policy on page 2 was in the bill.
MR. ELDER answered that it was not. He said it was in HB 106,
though. "We discussed it in Senate Labor and Commerce, but frankly,
I think it was an oversight."
CHAIRMAN TAYLOR asked if he was changing "depositors of" to "other
depository institutions in the following sections" in item 4, page
2.
MR. ELDER said yes because currently there is no language in the
credit union chapter for ATMs. Language for that section was taken
from the banking section.
CHAIRMAN TAYLOR asked if the remainder of the amendment pertains to
automatic teller machine provisions for credit unions.
MR. ELDER responded that language was taken from HB 106. The only
thing that was not in HB 106 was, "Once you put in the words
'depositors of' which the House Labor and Commerce Committee did,
you can remove 'and their customers' because that's redundant."
CHAIRMAN TAYLOR offered Mr. Elder's list of changes as an
amendment. SENATOR ELLIS objected.
CHAIRMAN TAYLOR said he wanted to change page 2 (e) to delete "in
an amount equal to the actual damage" and insert "for" so that
damages sought for violation of this section would not be limited
to just actual damages, but to all damages that may be incurred.
There were no objections.
SENATOR ELLIS said he thought they should divide the amendment and
that the section that changes the opt in section gives him pause.
He complimented the work that had gone into it, but he was more
comfortable with the traditional wording.
CHAIRMAN TAYLOR said he had an amendment that deletes on page 2,
lines 25 - 26, the reference to Gramm-Leach-Bliley.
SENATOR COWDERY said he understands that the large institutions
have less need of this than the smaller ones that aren't in the
marketing or loan business. He asked if this would allow them to be
brokers.
MR. ELDER said that is correct as long as it was a financially
related service.
SENATOR COWDERY asked if he had a number in his head of small
banks.
MR. ELDER replied that the state currently has four state chartered
banks and two state chartered credit unions. The Alaska Pacific
Bank, which is a federal charter, also doesn't have an affiliate
structure and is equally concerned.
CHAIRMAN TAYLOR asked if there were any further objections to
adopting amendment 1. SENATOR ELLIS objected. CHAIRMAN TAYLOR
called for a roll call vote. SENATORS COWDERY, THERRIAULT, and
TAYLOR voted yea; SENATOR THERRIAULT voted no; so amendment 1
passed 3 to 1.
CHAIRMAN TAYLOR offered amendment 2 and asked Mr. Reinwand to
explain it.
Number 1620
MR. JERRY REINWAND, Alaska Peddler Gift Shops, said he does a lot
of business via credit card and as time goes on, they have noticed
more credit card usage. A percentage of the sales, 2 to 4, pays for
the system. He has no problem with that, but in Juneau and other
places with sales taxes or purchase taxes, the banks are taking
their percentage out of the total purchase, including the tax.
"This means less money in my pocket at the end of the day."
MR. REINWAND said it isn't fair and once this law is passed, credit
card companies could offer it as an incentive for merchants to use
their cards.
SENATOR COWDERY asked how that works in communities that accept
credit cards for the payment of taxes.
MR. REINWAND replied that generally the IRS tacks on a fee of 2.5
percent to credit card payments so, "You're better off to write a
check."
CHAIRMAN TAYLOR said his concern is that what's really happening in
this transaction is that Mr. Reinwand is not collecting the legal
amount of sales tax. He thought discounting on the credit cards
actually put him in a difficult position of having to collect it
and he didn't think it would be insignificant over a large volume
of sales.
SENATOR THERRIAULT asked how this would trigger competition.
MR. REINWAND explained that there is a lot of competition between
credit card companies and they might be able to structure a
contract where it's an added incentive. He hadn't thought it
through, but a small business is at a real disadvantage in dealing
with the credit card companies. He was talking to a staff person in
Washington, D.C. when they were hearing a bankruptcy bill and there
was total silence on the other end when someone figured out the
total amount of money involved nationwide. "It's a huge amount of
money."
CHAIRMAN TAYLOR asked if there were any objections to adopting
amendment 2. There were no objections and it was adopted.
MR. JOE SCHIERHORN, Sr. Vice President, Northrim Bank, said he was
testifying on behalf of the Alaska Bankers Association as well.
They support the amendment and appreciate the efforts of Mr. Elder
and the Division of Banking in working with them on this
compromise. "I think it's very important to go forward with this to
insure that there's a level playing field between nationally
regulated banks and state regulated banks for the very reasons Mr.
Elder brought forth."
CHAIRMAN TAYLOR thanked him for his testimony and said they would
hold SB 66 to await the companion bill.
HB 193-MODIFIED BLANKET PRIMARY ELECTION
CHAIRMAN TAYLOR announced HB 193 to be up for consideration.
Number 1163
MS. SARAH FELIX, Assistant Attorney General, said she was also
testifying for the Division of Elections. She explained:
This bill is necessary because the Alaska statutes
currently provide for a blanket primary in which all the
voters may vote for any candidate regardless of party
affiliation. The United State Supreme Court last summer
issued a decision in the case called California
Democratic Party v. Jones that basically said that a
state could not force a political party to participate in
a blanket primary against that partys' will. The court
found that that violated the first amendment rights of
free association of the political parties. So, the Jones
decision affects all states that had a blanket primary
system and that's California, Washington and Alaska. So
the Alaska statutes need to be amended because of
California Democratic Party v. Jones.
In our state, we did have objections from a political
party to the blanket primary under the Jones case and,
therefore, the State of Alaska could not force that party
to participate in the blanket primary. When we faced
those objections last summer at the primary election,
there was insufficient time between when the Jones
decision was issued on June 26, 2000 and the primary
election, which was being held in August 2000. There was
insufficient time during that brief window for the
legislature to enact new primary election legislation.
Obviously, you weren't in session so the Lieutenant
Governor issued emergency regulations for conduct of the
primary election for that political party. Those
regulations have now expired by operation of law and
Alaska needs a new set of statutes, a new law, on the
primary election.
In order to help deal with this issue, the Lieutenant
Governor felt that she was responsible for making a
recommendation to the legislature for a new primary
election law and, therefore, she created a task force on
the primary election. Normally, we would have the
chairperson of that task force testifying today, former
Alaska Attorney General, Av Gross, but he's out of state.
He would tell you the task force developed legislation
and that the Governor presented that to the state
legislature. That legislation has gone through the House
and it's different from what the primary election task
force proposed and it's before you now, the Finance
Committee version of HB 193.
The primary election task force that was convened by the
Lieutenant Governor was composed of former lieutenant
governors and former attorneys general and Av Gross was
the chairperson of the task force. It was a non-partisan
task force and viewed its mission as coming up with a new
law on the primary election because Alaska's law was no
longer valid.
The process the task force used was to convene an
informational meeting where they received the laws and
options for conducting the primary election. Then there
was another at which public comment was taken from all
the recognized political parties, as well as the League
of Women Voters and other interested parties. Finally,
the task force had a third meeting in which it prepared
its recommendations for the primary election.
The task force basic principle was to change Alaska's law
as little as possible and comply with the United States
Supreme Court decision in the Jones case. The testimony
they received indicated that the political parties did
not object to using the premise of the blanket primary as
a starting point for the new primary election system.
However, the parties did want to retain the right to
limit participation in their party primaries.
Therefore, the original bill started with the premise of
the blanket primary and then the political parties had
the option to limit participation in their primary
election. For example, the Republican Party ballot would
list all candidates of all party affiliation, but only
members of the Republican Party could vote for Republican
Party candidates. However, members of the Republican
Party could vote for candidates of other parties so long
as those [indisc.].
The primary election task force believed that this type
of primary system was consistent with Alaska's past
history and the apparent preference of Alaskan voters for
the blanket format.
However, that original bill has changed and there have
been a number of [committee substitutes]. They all
approach the issue of the primary election from a
different direction. The [committee substitutes] start
from the premise of a closed primary in which parties are
allowed to open up their primaries if they so choose.
There are been two versions of this type of CS and the
current CS that you have before you from House Finance,
while calling for closed party primaries, starts with the
premise that nonpartisan and undeclared voters may
participate in the closed party primary so long as the
parties do not object.
A prior CS, I believe from House Judiciary, called for a
closed party primary and started from the premise that
only party members could vote in those primaries unless
the parties affirmatively opened up their primaries to
nonpartisan undeclared voters. In either case, the
primary election task force recommendation is essentially
the flip side of those kinds of [committee substitutes].
However, any of those bills will cure the problem in the
Alaska statute caused by the Jones case. It's the
legislature's policy call to make…
CHAIRMAN TAYLOR asked why we need to do anything in light of the
fact that the decision came down from the court, emergency
regulations were passed, and an election was held.
MS. FELIX replied that the emergency regulations have expired by
operation of law. They can only last for so long. "Now we are in
the situation of having no regulations on the books and a set of
statutes that do not comply with California Democratic Party v.
Jones."
CHAIRMAN TAYLOR asked if the state could not draft regulations
because the existing statute would not authorize those regulations.
MS. FELIX explained that existing statutes provide for a blanket
primary in Alaska. He said:
The emergency regulations that were adopted last session
on an emergency basis abrogated the statutes. The Alaska
Supreme Court considered that issue in the O'Callahan
case and the Court ruled that that was permissible on an
emergency basis essentially until the legislature was
able to meet and do a legislative fix. At that point the
executive branch was doing regulations, arguably, without
statutory authority. If there was no legislation to fix
the primary and we were left to our own devices and had
to do something, I think that we would probably be sued
no matter what we did unless there was some legislation
enacted this session regarding the primary election.
SENATOR THERRIAULT commented that the Constitution says the
election shall be run as dictated by law and that the legislature
should set the policy for the way the elections are run.
If we do nothing, the administration will have to do
something in a proposed regulation package. As we can see
by the piece of legislation they started out with,
there's some difference between what they would like to
see and what the legislature would like to see. So, we
will have taken that policy power that is ours by
Constitution, thrown it into their lap, they will make a
policy call, be subject to suit with no statute to back
it up and we will have basically thrown the whole policy
system into the court system, in my opinion. So, it's not
the advisable thing to do.
MS. FELIX agreed with Senator Therriault.
SENATOR THERRIAULT asked if it was the right of the party to have a
closed primary unless they choose to let people participate. He
asked if there was a problem coming from that direction.
MS. FELIX responded that they could do it either way.
SENATOR THERRIAULT said he had an earlier conversation with her to
understand House language with regard to candidates who get on the
ballot by petition. She explained because of a court case, the
legislature changed the law in 1995 to say that they all have the
same decision date when they get their name on the ballot. The
House changed the petition candidate date back to the day of the
primary, which basically undoes what the legislature did in 1995.
He thought there was some court decision driving Representative
Coghill's action.
MS. FELIX explained:
In House Judiciary the question came up of what to do
with the petition candidates under the closed primary
system: Should they appear on each of the parties' closed
primary ballots or should there be a separate ballot for
them? House Judiciary decided to solve that problem, they
would simply say that the petition candidates would not
appear on the primary election ballot. If they don't
appear on the primary election ballot, then we can't hold
them to the earlier filing date. The reason that the
petition candidates are held to the June 1 filing date is
because they had to appear on the primary election
ballot. That was taken out of the bill and now the
petition (no party) candidates only appear on the general
election ballot. So, there is a court case that says
under those circumstances, the petition candidates cannot
be held to the early filing deadline. They have to be
given a filing deadline no sooner than the date of the
primary election.
SENATOR THERRIAULT said he didn't understand why there's a problem
with everyone having the same decision date. He said he didn't have
a way of evaluating who his candidate was even though they could
read everything about him. He thought it would make things fair.
CHAIRMAN TAYLOR asked if there was a court case now.
MS. FELIX replied that there were two Superior Court cases; one in
1998, the Ziegler case, and one in 1990, the Sykes case. The Sykes
case was decided in the Superior Court by then Judge Dana Fabe, who
is now the Chief Justice of the Alaska Supreme Court. The person
who handled it explained:
It was a case in which the court made a very strong
decision that the state could not meet a rational basis
test, a compelling interest test; they couldn't really
establish any basis for requiring a petition candidate to
meet the same filing deadline of June 1 that the party
candidates would have to meet, because if the petition
candidate wasn't going to be in the primary, there was no
reason to require them to file at that time. The only
reason for the June 1 date is because the party
candidates are going to be in a primary. So, she found
there was an insufficient state interest to require that.
I understand what Senate Therriault is saying, but I
think the Court did consider that argument and didn't
find it was weighty enough.
REPRESENTATIVE COGHILL said:
I was persuaded in House Judiciary that if they weren't
going to be on the primary ballot, then the starting gun
could effectively go off on the date of the primary.
Since I was pushing so hard for the party selection
process to be the primary source of selection under that
primary election, they put themselves outside that party
process and put themselves in pretty much the initiative
or signature gathering process. At that point, I couldn't
make my case any stronger for keeping the primary closed
if I had gone that direction. The starting gun from my
point of view was sufficient for me to say the start of
the primary. So be it…
Number 170
This particular bill - I think it's better than what we
started off with. This forces an inclusion, though, with
those voters who have disenfranchised themselves from the
party - the undeclared, the nonpartisan and the little
independents. This particular bill you have before you
does force the inclusion in the primary and if there is
to be a closed primary within a party, they have to
choose to exclude people, I find that fundamentally
wrong. I find it out of line with the California
Democratic Party V. Jones.
TAPE 01-25, SIDE A
REPRESENTATIVE COGHILL continued:
On page 6, paragraph 2 of the decision, the Court has
recognized that the fist amendment protects the freedom
to join together in furtherance of common political
beliefs, which necessarily presupposes the freedom to
identify the people who constitute that association and
to limit the association to those people only. I think if
we force the inclusion, we're going against the very crux
of this case. I implore you to make that plea…
REPRESENTATIVE COGHILL had prepared some amendments. Regarding page
14, paragraph 14, he said, "If the party wants to open up the
primary, that should be a party decision. It should not be a state
mandate that they open it. In my view, a primary is a selection
process; it's not an election."
CHAIRMAN TAYLOR moved the two-page amendment that Representative
Coghill prepared as amendment 1. He objected for purposes of
discussion.
SENATOR THERRIAULT asked if the effect of this was to go back to
the closed primary unless the party takes action to open it.
REPRESENTATIVE COGHILL answered yes.
CHAIRMAN TAYLOR asked if that would leave them with a status quo in
that the Democrats have not had to open their primary in the past.
Their party had done it already.
REPRESENTATIVE COGHILL agreed in that regard.
CHAIRMAN TAYLOR asked if there were further objections to amendment
1. There were no objections and it was adopted.
SENATOR THERRIAULT asked if that action forced the legislature to
change the filing deadline for the petition candidates.
REPRESENTATIVE COGHILL replied yes and said, "The date of the
primary election would be the deadline for the physical delivery of
that petition for a general election."
SENATOR THERRIAULT asked if it forces the legislature to act
because of the possibility that their names will not appear on any
ballot in the primary and, because of that, there's no
justification for having them file on an earlier date.
REPRESENTATIVE COGHILL replied that was his understanding.
SENATOR THERRIAULT said that if they didn't have to file before the
date of the primary, they didn't have to file all the APOC reports
before then. "You have no idea if they're gathering money; where
it's coming from; what they're spending it on. So all your
information is available to them and you get nothing back."
REPRESENTATIVE COGHILL said if you go through the party process,
you would be running your election from June through November, but
the petition candidates would only have to start from the primary
date on. He said they could ask APOC to have them begin reporting
as soon as they start spending money on a petition drive.
CHAIRMAN TAYLOR asked if Judge Fabe's decision was based on the law
that the legislature passed by Senator Sharp to clarify that.
SENATOR THERRIAULT interjected that Senator Sharp's law was passed
afterwards and basically fixed the problem.
CHAIRMAN TAYLOR asked if this bill somehow threw that change out.
MS. FELIX replied yes. The bill removes the requirement that the
petition candidates run in the primary. Under the bill, they will
only run in the general election. If they put petition candidates
in the primary, there is the question of implementing.
CHAIRMAN TAYLOR said they would show up on everybody's ballot.
REPRESENTATIVE COGHILL said that would force a nonpartisan on a
partisan ballot, which is one of the things he has been arguing not
to do.
CHAIRMAN TAYLOR said he would give them until Monday to work out
the differences.
MS. GAIL FENUMIAI, Election Program Specialist, commented, "The
reason for the change in the bill the way it exists now is because
the no party candidates are removed from being on a primary ballot.
In 1995, the law was changed to have them appear on the primary
ballot. Therefore, they had the same filing deadline as candidates
from recognized parties. Prior to 1995, they went straight to the
general election ballot and had a filing deadline of the primary
election date, due to the lawsuit that was filed."
MS. FENUMIAI said she would check on Alaska Public Office's paper
work, but she thought they would fall under the same guidelines as
the candidates do. Petition candidates have to file a letter of
intent before they can start raising money and expending funds.
SENATOR THERRIAULT said he thought petition candidates should have
to make their decision on the same date everyone else does and file
the paperwork just like everybody else does.
CHAIRMAN TAYLOR said, "If they have the means to finance their own
campaign, they don't have to report anything until the day they
file…"
Number 724
CHAIRMAN TAYLOR said he would hold the bill over until Monday.
HB 172-THERAPEUTIC COURTS/ SUPERIOR COURT JUDGES
CHAIRMAN TAYLOR announced HB 172 to be up for consideration.
REPRESENTATIVE PORTER, sponsor of HB 172, said the legislature has
been dealing with the DUI issue for years and most of the
progressive enhancements to that law have proven to be effective.
This bill addresses the drivers who have an addiction as opposed to
a problem with drinking and don't have the individual capacity to
stop. The Anchorage community has found that there is a small group
of multiple offenders who are continuing to drive and drink. "They
are killing people."
He explained this program and new approaches that are available in
the area of treatment, especially pharmaceuticals, have anecdotally
been successful at the district court level and should be expanded
to the felony DUI situation in Anchorage. HB 172 provides for a
pilot project in Anchorage and Bethel where it provides for the
involvement of local treatment programs and people who deal with
cultural diversity in our state.
CHAIRMAN TAYLOR said it appeared to him to take in all criminal
offenses that are alcohol related with the exception of the most
severe felonies.
REPRESENTATIVE PORTER explained that it asks that the court
concentrate on DWI offenders. The pilot program provides for a
fiscal analysis that deals with a certain number of felony DWIs.
That is the focus now, although there are a multitude of criminal
offenses that are alcohol related, between 70 to 80 percent. He
would not be opposed to gradually including some of those.
CHAIRMAN TAYLOR asked if admission into the therapeutic court
program in any way provides for deviation from the existing minimum
mandatories that are provided under the DWI law.
REPRESENTATIVE PORTER responded that the bill provides the
opportunity for that to happen, but it doesn't require it. "Once
the person is in the program, having been approved by the
prosecutor's office, the court has the discretion and the idea is
from our perspective to hold that sentence over the head of the
individual for as long as it takes to be assured of satisfactory
completion of the program.
CHAIRMAN TAYLOR said he believes there needs to be some inducement
to use the program, but if a person is prosecuted for a second or
third offense in Palmer, he gets a mandatory minimum sentence, pays
the fine and there is no prosecutorial discretion. However, if he
shows up in the Anchorage court, he could get the entire period of
imprisonment and the amount of fine including the presumptive or
mandatory minimum sentence suspended if he is successfully
completing court ordered treatment. "Who wouldn't jump into
treatment if the guy down the road is getting 100 plus years in
jail, suspension of his license for three or four years and you can
get all of that suspended by going through this court?"
REPRESENTATIVE PORTER said that was the idea of the program - to
have an inducement to get someone started in the activity of
meaningfully trying to change that addictive behavior.
CHAIRMAN TAYLOR asked, except for the additional cost of support
personnel, why we shouldn't provide the same level of discretion
for every judge who is dealing with alcohol offenses.
REPRESENTATIVE PORTER replied that the program in Anchorage has
only been going for about a year and a half, so results are just
anecdotal. The proof will come six or seven years from now. The
program is labor intensive and requires frequent returns by the
defendant and prosecution as part of the treatment process.
CHAIRMAN TAYLOR asked about equal protection.
REPRESENTATIVE PORTER replied that issue was not raised and he
would ask Mr. Guaneli about that. He personally thought they had
gone as far as they could go with personal incarcerations. There is
so much graphic evidence that hardly anyone responds to a revoked
or suspended license. He thought that this program would not have
100 percent success and there would always be that 10 percent that
would never get the message in any format.
Number 1655
SENATOR THERRIAULT asked why they couldn't set these programs up
everywhere when language says "to the extent feasible, the
therapeutic court shall use existing public agencies, medical
treatment."
REPRESENTATIVE PORTER replied that the labor intensity of this
program is in the state of evolution. "To make sure that we have
the capacity to do it correctly, we are suggesting that we should
have these two new courts…"
CHAIRMAN TAYLOR asked if they were going to have two Superior Court
judges in Bethel.
REPRESENTATIVE PORTER replied yes.
CHAIRMAN TAYLOR said that he doubted that they needed it, but it
was sad.
MS. JANET MCCABE, Partners for Downtown Progress in Anchorage, said
they had been working with Judge Wanamaker on the wellness court
and strongly supported HB 172. "Therapeutic courts are effective in
bringing about lasting change in alcohol addicted offenders. It's a
long difficult process for both the person who opts into the
program, the defender, and it also needs a lot of intensive
participation on the part of the judge."
She said that about 90 percent of their participants have stayed
sober and are doing well. She asked the committee to consider an
amendment. She said the wellness court is at the district court
level and none of the provisions in this bill affect the wellness
court since it applies to the Superior Court. She thought it was
important that the judge have the ability to reduce the mandatories
if someone completes the wellness court successfully.
CHAIRMAN TAYLOR asked what the difference is between a therapeutic
court and a wellness court.
MS. MCCABE replied that they are basically the same.
CHAIRMAN TAYLOR asked if the judge involved in the wellness court
in Anchorage was Judge Wanamaker.
MS. MCCABE said yes.
CHAIRMAN TAYLOR asked, if he was doing such a great job at a
district court level, why are they talking about creating two new
superior court positions for what's being done in the district
court today and is the model program.
MS. MCCABE replied that was considered long and hard. She said
there was a great need in Bethel and there were a lot of people in
Anchorage who are at the felony level who could benefit. The
wellness court doesn't touch that group of people.
CHAIRMAN TAYLOR said that was only because of silly jurisdictional
restrictions between superior and district court as to who is
busted for a felony and who is busted for a misdemeanor. He was
trying to figure out why they were going to add to a superior court
bench in Anchorage that was not overburdened by any means and not
assist a district court bench, which he knows is terribly
overburdened with mostly alcohol related offenses. He said they
should put two more district court judges in Anchorage and give the
superior court the authority to help out.
MS. MCCABE said these projects are intended to be demonstrations to
build up support and to really make an impact on the problem.
MR. BLAIR MCCUNE, Deputy Director, Alaska Public Defender Agency,
said they had done a lot of work on this bill and that it was
important that it gets done right. They don't want the public to
lose confidence in this process. He said that the program is
working really well so far. On the equal protection issue, the
program had to start somewhere. He didn't think there would be a
challenge based on not having it in one community opposed to
another. It's like a prosecutor might allow a plea bargain where
another prosecutor might not.
CHAIRMAN TAYLOR said he thought this was an important point and
they aren't talking about a particular prosecutor or discretion
that may be exercised. They are talking about changing the minimum
mandatory sentences that are currently required on every criminal
offense with the exception of major felonies. It says, "However,
not withstanding any other provision of law, the entire period of
imprisonment or fine including a presumptive or mandatory minimum
sentence may be suspended if the defendant has successfully
completed court ordered treatment."
MR. MCCUNE replied that he thought the legislature had looked at
the carrot and the stick and the type of intensive work that a
criminal defendant and participants would have to do in making all
treatment appointments. It would mean making considerable effort to
come to court every day and work with the professionals involved.
TAPE 01-25, SIDE B
MR. MCCUNE said that the court might think that burden was the
equivalent of a mandatory minimum sentence.
CHAIRMAN TAYLOR responded that they had one judge who could
exercise unlimited discretion with the defendant who is sitting in
one courtroom in Anchorage. The very same Superior Court judge
sitting out in Palmer has absolutely no discretion and will violate
state law should he fail to sentence to the maximum extent that law
requires. When he was practicing 25 years ago, it was very easy for
him to check to see if offenders were showing up for their antabuse
every day or following up with their social worker. He didn't have
to have another $2 million dollars to hire a judge who does nothing
but this. "I consider it a part of the job!"
MR. MCCUNE said they are in the type of situation where someone
gives a Rule 11 type of plea bargain. This puts a lot of pressure
on the defendant to complete this program successfully.
CHAIRMAN TAYLOR asked if they could amend the bill to provide the
same level of authority and the same criteria for meeting it to
both district and superior court judges across the state, leaving
it optional for that court if they wish to participate and utilize
this form of sentencing.
MR. MCCUNE replied that he didn't think there would be an equal
protection problem.
CHAIRMAN TAYLOR said he agreed with him as long as the discretion
is uniform among the judiciary. That one sentence changes the
minimum mandatory sentencing laws on every criminal offense in this
state with the exception of unclassified felonies, but it only
changes it if you walk in the right courtroom door. "That
definitely seems to be different as far as equal protection is
concerned."
He asked Mr. McCune to address the legal aspect.
MR. MCCUNE responded again that he didn't think equal protection
would be a problem because of what this requires of the individual
criminal defendant. It is far above requirements that are placed on
other defendants.
Number 2107
MR. DEAN GUANELI, Chief Assistant Attorney General, said:
For those of us in the criminal justice system, and I
include you in that because of your long experience, we
often get very jaded about offenders and we see them
coming back time after time, particularly the ones who
have alcohol problems. This is a program that really
deserves to be tried out, deserves to be used. I think it
can make some inroads in what is a real serious problem
in Alaska.
What this was designed to do was to focus on felony drunk
drivers. To be a felony drunk driver it has to be your
third or more conviction within five years and we
certainly have those who are more. They are tough nuts to
crack. The treatment people all tell us that…
MR. GUANELI explained that this program involved an intensive
period of 18 months of oversight by the court, the prosecutor, the
defense attorney, the probation officer and treatment providers.
It's so intensive that a lot of clients would rather go the jail
for the mandatory four months than go through this program. He
thought the courts would also consider the way they look at
treatment programs in terms of getting credit for time served. The
Lock and Nygren cases (Supreme Court) say that if you are ordered
to go to a treatment program that has conditions that really
restrict your liberty, you get credit for time served. "It's in
essence the equivalent of incarceration and you get credit against
your sentence."
MR. GUANELI said that he thought the court would give the
legislature a lot of latitude in trying out this program for those
reasons. He said the legislature has broad latitude in analyzing
where equal public facilities are going to be, particularly on a
pilot basis. The court has pretty definitive language after a
lawsuit against the Division of Health and Social Services.
CHAIRMAN TAYLOR agreed with the analogy of treatment, but he was
concerned with the loss of liberty. "There is no higher standard
that we look to in equal protection cases than loss of liberty."
He knows a family whose son is serving two and a half years in a
state institution for DWI and they have asked him why he hasn't
been placed in a program in that institution for treatment. He
doesn't know how to explain to them that their son has to stay
there for two and a half years, while a kid in Anchorage or Bethel
can work and get treatment. One is elective and the other is
mandatory.
MR. GUANELI said Senator Taylor had a good point, but he just
didn't think the court would say they couldn't start out with a
pilot program just because they don't have the budget for the rest
of the state.
CHAIRMAN TAYLOR said this bill would include more than just DWIs.
"This court can literally take anybody."
He wanted to know if they were going to limit to just drunks or try
and expand it. He wanted to know if the legislature could suspend
the effect of all state minimum mandatory sentences just for one
court and not be facing an equal protection problem.
SENATOR TAYLOR wanted to see some parameters where the person
didn't jump in to the program without some additional help. He
thought that other communities might have people who would want to
help with this kind of program and asked if they shouldn't be
entitled to do it, too.
MR. GUANELI responded that Anchorage was chosen because the
treatment infrastructure exists there. "That is why I think keeping
it in Anchorage to begin with for the first six months is a good
idea."
He said further that the court finds a relationship between
treatment and incarceration. To provide the incentive necessary for
defenders to go through the treatment program for 18 months, you
really have to give the judge the latitude to design a sentence and
even throw the mandatory minimums, to give particular offenders the
incentive to continue with these programs. "Throwing out the
mandatory minimum or giving the judges flexibility to do that is a
necessary part of making this treatment effective. I believe our
Supreme Court will recognize that."
He thought extending that flexibility throughout the state for all
offenses is wiping out all mandatory sentencing in Alaska.
CHAIRMAN TAYLOR said that would happen only to the extent another
judge would be flexible that this one "super judge" is now going to
do.
MR. GUANELI said that would do away with mandatory and presumptive
sentencing in Alaska.
CHAIRMAN TAYLOR asked why he should trust a judge who hasn't even
been hired yet to do that on all offenses with the exception of
unclassified felonies.
MR. GUANELI said he thought the court system would probably put one
of the sitting judges there, but maybe not.
SENATOR DONLEY said he didn't know the scope was so broad. He asked
if class B felonies were crimes of violence against a person.
MR. GUANELI replied that those would be included. "The intent in
Anchorage is to limit to the felony drunk driving, but in order to
try this out in a rural area, in Bethel, there are not sufficient
numbers of felony drunk driving offenses. It was felt to broaden it
out to allow others…Burglaries are a common offense and that's a
class B felony…"
SENATOR DONLEY asked what the role of the victim was in deciding
whether or not punishment should be waived in favor of treatment.
MR. GUANELI replied that is a good question. The prosecutor has to
agree for someone to be accepted into this program. If there is a
strong objection from the victim to someone not serving time, that
would be taken into consideration.
SENATOR DONLEY asked if the sponsor considered putting language in
statute that the victim should be consulted. He thought it was
important.
MR. GUANELI said he thought that was a legitimate concern, but he
hadn't talked to the sponsor about amending it.
CHAIRMAN TAYLOR said section 5, page 3, provides that the offender
could be living in a municipality of an area of the state without a
judge who can appoint someone to do the job for him. If that system
was workable out of Bethel, it ought to work out of Fairbanks.
MR. GUANELI said this program was set up based on guidelines used
in other states. It was designed particularly for the Bethel region
to be flexible because of the remoteness. No one knows how well the
program would work.
CHAIRMAN TAYLOR asked if this would help Judge Wanamaker's program.
MR. GUANELI said there was language stating that it's not intended
to bind the district court.
CHAIRMAN TAYLOR said that district courts deal with more mandatory
minimum sentences than anybody else and as a consequence Judge
Wanamaker has been making his program work within the minimum
mandatory sentencing. So he didn't have to offer them an extra day
or two less in jail to get them to come into his program. "I think
I know how he did it. He just hung more time over their heads…"
MR. TOM WRIGHT, staff to Speaker Porter, pointed out that language
on page 2 says, "Nothing in this act is intended to place
additional requirements on or make changes to other existing
specialized or general state courts."
He said the Judge Wanamaker's court was working under a federal
grant that runs out in a short time and they are looking for an
appropriation through the capital budget process so they can
continue. "This is a pilot project and nothing more. There may be
some things that aren't going to work like the part he just
mentioned about the rural areas. The Senate just passed a bill
granting VPSO to probation officer status and this could tie in
with that."
MR. GUANELI commented that although the Judge had some anecdotal
successes, this is designed to get at felony drunk drivers and he
is generally not handling cases at that level. "These are the
problem cases. These are the ones who are going to continue to
drink and drive if something isn't done."
CHAIRMAN TAYLOR said he appreciated Representative Porter bringing
this legislation forward. It is the most creative thing he had seen
in a long time. However, every agency wants to be paid more to go
do the job we think they ought to be doing in the first place,
which is concentrated more on alcohol related addiction.
MR. WRIGHT agreed.
CHAIRMAN TAYLOR asked if this program could operate without the
requested funds.
MR. WRIGHT responded that he would have to ask the courts.
CHAIRMAN TAYLOR asked if Judge Froelich was receiving any funding
in Juneau?
MR. GUANELI and MR. WRIGHT said they didn't think so.
CHAIRMAN TAYLOR said the words, "does not affect the jurisdiction
of other similar courts" intrigued him. He asked if there were any
other specialized courts.
MR. GUANELI replied that the state has a mental health court and a
drug court that has been funded with federal funds that's operating
in Anchorage.
SENATOR DONLEY said there doesn't appear to be any sunset on the
number of Superior Court judges if this program goes away.
MR. WRIGHT replied that it was his impression that if this program
didn't work, they would revisit that issue, but they wouldn't have
a problem with a sunset clause.
SENATOR DONLEY said he was thinking about language that would
require a specific consultation with victims since theirs was a
special circumstance of waiving mandatory sentencing.
MR. WRIGHT said he would discuss that with the sponsor.
CHAIRMAN TAYLOR noted that the sponsor has been a great advocate
for victims' rights.
CHAIRMAN TAYLOR said they would take this up again on Monday and
adjourned the meeting at 4:47 p.m.
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