Legislature(2003 - 2004)

04/07/2003 01:31 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 7, 2003                                                                                          
                           1:31 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Ralph Seekins, Chair                                                                                                    
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
Senator Hollis French                                                                                                           
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Scott Ogan, Vice Chair                                                                                                  
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 53                                                                                                              
"An Act  relating to disposition  of a traffic  offense involving                                                               
the death  of a person;  providing for the revocation  of driving                                                               
privileges by  a court for a  driver convicted of a  violation of                                                               
traffic  laws  in  connection  with  a  fatal  motor  vehicle  or                                                               
commercial motor  vehicle accident;  amending Rules 43  and 43.1,                                                               
Alaska Rules  of Administration;  and providing for  an effective                                                               
date."                                                                                                                          
     HEARD AND HELD                                                                                                             
                                                                                                                                
CS FOR HOUSE BILL NO. 23(JUD)                                                                                                   
"An Act  relating to  court-ordered restitution  and compensation                                                               
following a criminal conviction."                                                                                               
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 49                                                                                                              
"An Act  making corrective amendments  to the Alaska  Statutes as                                                               
recommended  by the  revisor of  statutes; and  providing for  an                                                               
effective date."                                                                                                                
     MOVED CSSB 49(STA) OUT OF COMMITTEE                                                                                        
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                              
SB 53 - See Transportation minutes dated 2/18/03.                                                                               
HB 23 - No previous action to consider.                                                                                         
SB 49  - See  State Affairs minutes  dated 2/20/03  and Judiciary                                                               
     minutes dated 3/17/03.                                                                                                     
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                              
Ms. Karen Sawyer                                                                                                                
Staff to Senate Ogan                                                                                                            
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SB 53 for the sponsor.                                                                       
                                                                                                                                
Ms. Anne Carpeneti                                                                                                              
Criminal Division                                                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT: Commented on SB 53 and HB 23.                                                                             
                                                                                                                                
Ms. Nancy Campbell                                                                                                              
No address provided                                                                                                             
POSITION STATEMENT: Supported SB 53                                                                                           
                                                                                                                                
Representative Bruce Weyhrauch                                                                                                  
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of HB 23.                                                                                         
                                                                                                                                
Mr. Riley Woodford, Former President                                                                                            
Alaska Folk Festival                                                                                                            
Juneau AK                                                                                                                       
POSITION STATEMENT: Commented on HB 23.                                                                                       
                                                                                                                                
Ms. Pam LaBolle, President                                                                                                      
Alaska State Chamber of Commerce                                                                                                
217 2nd Street                                                                                                                  
Juneau AK 99801                                                                                                                 
POSITION STATEMENT: Supported HB 23.                                                                                          
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 03-19, SIDE A                                                                                                            
                                                                                                                              
         SB  53-REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT                                                                     
                                                                                                                                
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order  at 1:31  p.m. Present  were Senators                                                               
Therriault,  French  and  Chair Seekins.  Senator  Ellis  arrived                                                               
shortly   thereafter.  He   announced  SB   53  to   be  up   for                                                               
consideration.                                                                                                                  
                                                                                                                                
MS.  KAREN SAWYER,  Staff  to  Senator Ogan,  sponsor  of SB  53,                                                               
explained that  this relates  to circumstances  where there  is a                                                               
true link  between violating  a traffic  law and  contributing to                                                               
the death of someone. It  allows courts to revoke an individual's                                                               
license to drive if they caused someone's death.                                                                                
                                                                                                                                
Page  2,  lines 11  -  12  allows  the  court the  discretion  of                                                               
revoking the license  for up to three  years. Notwithstanding, SB
53 proposes  that a person  could get  a limited license  for the                                                               
entire  period  if he  or  she  convinces  the court  that  their                                                               
livelihood depends on having a license.                                                                                         
                                                                                                                                
SENATOR ELLIS arrived at 1:35 p.m.                                                                                              
                                                                                                                                
SENATOR  THERRIAULT clarified  that current  law already  revokes                                                               
the  license  of  someone  who  is drinking  and  has  a  traffic                                                               
violation.                                                                                                                      
                                                                                                                                
SENATOR  FRENCH asked  if this  action would  require a  district                                                               
court trial.                                                                                                                    
                                                                                                                                
MS. SAWYER  replied that it  would. She understood  that whenever                                                               
there is a  death of an individual, that person  has the right to                                                               
a jury trial.                                                                                                                   
                                                                                                                                
SENATOR FRENCH said  that this has more to do  with taking away a                                                               
driver's  license,  because as  it  stands  now, you  could  kill                                                               
someone in an accident and you  might only be cited for negligent                                                               
driving.  You could  sign the  ticket, send  in your  fine, never                                                               
appear in  court and not lose  your license and that's  what this                                                               
bill proposes to address.                                                                                                       
                                                                                                                                
SENATOR  THERRIAULT asked  why the  current point  system doesn't                                                               
allow this to be done.                                                                                                          
                                                                                                                                
MS. ANNE  CARPENETI, Criminal Division,  Department of  Law, said                                                               
the  infractions  they are  talking  about  wouldn't cost  enough                                                               
points  to justify  a loss  of license,  unless it  was negligent                                                               
driving on top of prior bad driving citations.                                                                                  
                                                                                                                                
SENATOR  THERRIAULT  asked why  they  couldn't  change the  point                                                               
system.                                                                                                                         
                                                                                                                                
MS. CARPENETI replied  no thought has been given  to revising the                                                               
point system. The purpose is  to make a direct connection between                                                               
a traffic violation  that kills someone and loss of  a license by                                                               
a more direct route than the point system.                                                                                      
                                                                                                                                
SENATOR SEEKINS  asked if the  more indirect route  involving the                                                               
point system requires a jury trial.                                                                                             
                                                                                                                                
MS. CARPENETI replied,  "Yes, whenever there is  a possibility of                                                               
loss of a valuable license like  a driver's license, a person has                                                               
the right to a jury trial and court appointed counsel."                                                                         
                                                                                                                                
SENATOR FRENCH asked  if that is correct, because  you don't have                                                               
the right  to a trial for  a speeding ticket and  speeding points                                                               
can cause you to loose your license.                                                                                            
                                                                                                                                
SENATOR THERRIAULT asked  if using "may" on page  2 reflected the                                                               
intent  to see  that a  mother that  picks up  her children  from                                                               
soccer  and hits  some black  ice and  accidentally kills  one of                                                               
them loses her license in addition to the life of her child.                                                                    
                                                                                                                                
MS. SAWYER  replied this bill gives  the court the right  to look                                                               
at  the  circumstance  surrounding  the  accident.  The  person's                                                               
driving record and the violation would have significance.                                                                       
                                                                                                                                
MS. NANCY CAMPBELL said she and  her husband lost their son in an                                                               
auto accident in  1994. He was hit head-on by  a man that swerved                                                               
around a  car that was turning.  Six people were involved  in the                                                               
accident and six lawyers represented  the six different insurance                                                               
companies. One lawyer tried to get  a misdemeanor and she and her                                                               
husband went to traffic court to  testify, but state law tied the                                                               
judge's hands.  Other people  have talked  to them  about similar                                                               
experiences with the  system's shortfalls. The driver  got a slap                                                               
on the wrist  and 300 hours of community service;  he didn't lose                                                               
his license and was subsequently  involved in another accident in                                                               
which  two more  people were  killed. "As  far as  I know,  he is                                                               
still driving at this point."                                                                                                   
                                                                                                                                
SENATOR FRENCH said he would  like to have a discussion regarding                                                               
adding "serious physical injury" to the statute.                                                                                
                                                                                                                                
CHAIR SEEKINS said okay and  that they would hold another hearing                                                               
on it.                                                                                                                          
                                                                                                                                
              HB  23-RESTITUTION FOR CRIME VICTIMS                                                                          
                                                                                                                                
CHAIR SEEKINS announced HB 23 to be up for consideration.                                                                       
                                                                                                                                
REPRESENTATIVE  BRUCE  WEYHRAUCH,  sponsor  of  HB  23,  said  he                                                               
introduced  the  legislation  to  overturn  a  Court  of  Appeals                                                               
decision.  He explained  that the  treasurer of  the Alaska  Folk                                                               
Festival embezzled  money from  the non-profit  corporation. When                                                               
the new treasurer went to the  police, they told him they did not                                                               
have  the  resources  to investigate.  The  Folk  Festival  spent                                                               
hundreds of hours  and dollars to follow the paper  trail for the                                                               
police,  who then  submitted  it to  the  district attorney.  The                                                               
treasurer was convicted of theft  and during sentencing the judge                                                               
said he  would have to pay  back the time and  effort expended by                                                               
the volunteers.  On appeal, the  Court of Appeals  indicated that                                                               
the Legislature  did not  intend the  restitution statutes  to be                                                               
read broadly  enough to compensate volunteers  of non-profits for                                                               
their  time,  money  and  effort  in  uncovering  a  crime.  They                                                               
appealed  to  the Alaska  Supreme  Court  and the  divided  court                                                               
wanted to hear  the appeal. Part of the ruling  by the dissenting                                                               
judges indicated that many other  citizens and organizations will                                                               
be affected by this ruling.  The District Attorney indicated that                                                               
they wanted legislation to address this appeal's court decision.                                                                
                                                                                                                                
HB 23 would allow  a non-profit to come to a  court as the victim                                                               
and specify  the value  of the  time and  effort incurred  so the                                                               
court could  direct the  defendant to  reimburse the  victim. The                                                               
bold-faced language in  the amended version of the  bill makes it                                                               
clear  that the  non-profit  is the  victim,  not the  individual                                                               
volunteers that did  the service. This language  was developed by                                                               
the  Department of  Law,  the Public  Defender's  Office and  the                                                               
court system.                                                                                                                   
                                                                                                                                
     If  the volunteer  presents a  reasonable  bill to  the                                                                    
     non-profit for  reimbursement, that  can go in  turn to                                                                    
     the sentencing judge, so that  the sentencing judge has                                                                    
     a rational basis for providing  the compensation to the                                                                    
     non-profit  to make  its  compensation decisions  later                                                                    
     on.                                                                                                                        
                                                                                                                                
SENATOR  FRENCH  asked  if  volunteer   labor  and  services  are                                                               
generally a subject of restitution in law.                                                                                      
                                                                                                                                
REPRESENTATIVE  WEYHRAUCH replied  that wasn't  intended in  this                                                               
bill. "This bill  was meant to be narrow to  address the specific                                                               
facts of the Demers case where  you have a non-profit that is the                                                               
victim..."                                                                                                                      
                                                                                                                                
SENATOR  THERRIAULT asked  if he  is limited  to damages  or loss                                                               
(page 2, line11) as an individual  if he expends hours of time to                                                               
provide information to the court.                                                                                               
                                                                                                                                
REPRESENTATIVE WEYHRAUCH  replied that would  be the case,  if he                                                               
were a victim of  a crime. "There is no intent  to change that at                                                               
all."                                                                                                                           
                                                                                                                                
SENATOR  FRENCH said  that judges  are often  reluctant to  grant                                                               
restitution for the  hours anyone spends taking their  car to the                                                               
body shop  and picking it up  or lost wages, for  instance. "They                                                               
usually want to see a receipt."                                                                                                 
                                                                                                                                
1:55 p.m.                                                                                                                     
                                                                                                                                
MR.  RILEY   WOODFORD,  former  president  of   the  Alaska  Folk                                                               
Festival, reiterated  the story.  The police  made it  clear that                                                               
their focus was violent crime and public protection. White-                                                                     
collar  crime  tends  to  be   a  fairly  low  priority.  So,  in                                                               
situations like this,  it falls upon the board  of the non-profit                                                               
to do most  of the investigative work, which takes  away from the                                                               
mission and the  reason the people volunteered. In  the end, they                                                               
tallied up  the amount of  time they  spent and picked  what they                                                               
thought  was  fair  compensation  to the  festival,  not  to  the                                                               
individuals to help  make right some of the impact  of the crime.                                                               
He thought this  was a fair bill that would  help compensate non-                                                               
profits that  are victimized  by this  same kind  of white-collar                                                               
crime.                                                                                                                          
                                                                                                                                
SENATOR  THERRIAULT asked  if the  group hired  an accountant  to                                                               
quantify  the  amount   of  the  embezzlement  and   was  that  a                                                               
compensatable expense or would that come under loss.                                                                            
                                                                                                                                
CHAIR  SEEKINS  responded  that,   if  his  company's  accounting                                                               
department  quantified  an  amount  of  embezzlement,  more  than                                                               
likely he wouldn't be able to  recover that internal time, but if                                                               
he hired  an accounting  firm to  do it, that  would be  a direct                                                               
expense related to the crime and  he would be able to claim that.                                                               
He asked Senator French's opinion.                                                                                              
                                                                                                                                
SENATOR FRENCH  said this was  a fuzzy  area. In a  $100,000 bank                                                               
embezzlement  that he  was  familiar with,  he  doubted that  the                                                               
person  would be  charged with  all the  investigative costs.  He                                                               
asked  if the  festival  was  receiving any  money  from the  Mr.                                                               
Demers.                                                                                                                         
                                                                                                                                
MR.  WOODFORD replied  they  were receiving  money  and it  would                                                               
probably  be paid  back over  a five-year  period. He  added that                                                               
Judge  Collins said  she would  have  included the  costs if  the                                                               
statute were more clear-cut.                                                                                                    
                                                                                                                                
Non-profits are in  a little different situation  than a business                                                               
in that they  are completely volunteer and there  is a tremendous                                                               
amount of  trust and  cooperation involved  in the  board members                                                               
who sometimes handle  quite a bit of money. Most  of the time the                                                               
checks and balances are very easy to subvert.                                                                                   
                                                                                                                                
SENATOR FRENCH said  they could change a few words  on page 2 and                                                               
treat everyone  the same. You could  say, "including compensation                                                               
to a  victim for the  value of labor and  goods if the  labor and                                                               
goods were necessary to alleviate  or mitigate the effects of the                                                               
crime."                                                                                                                         
                                                                                                                                
REPRESENTATIVE WEYHRAUCH  said he originally wanted  this bill to                                                               
be broad, but the court has  the ability under (2) to address the                                                               
financial  burden placed  on  the victim  and  those who  provide                                                               
services to the victim and other persons...                                                                                     
                                                                                                                                
The reason this language was put  in specific to a non-profit was                                                               
to address this  particular issue and, two, without  it, it loses                                                               
a broader  base of  support from  the administration  and creates                                                               
all kinds of legal issues.                                                                                                      
                                                                                                                                
     It is  intended to  allow the individuals  that Senator                                                                    
     Therriault is  talking about to already  be compensated                                                                    
     under  this   provision  of  the  statute.   This  just                                                                    
     reverses the Court of Appeals to make sure that a non-                                                                     
     profit that has volunteer effort and expenses expended                                                                     
      can recover, which right now is prohibited under our                                                                      
     case law.                                                                                                                  
                                                                                                                                
SENATOR  FRENCH  asked  if  anyone suggested  that  it  would  be                                                               
illegal  or  unconstitutional  to  have  volunteer  labor  repaid                                                               
through a restitution award.                                                                                                    
                                                                                                                                
REPRESENTATIVE  WEYHRAUCH replied  no, because  the intent  is to                                                               
make sure  that a court can  order it if it  can be substantiated                                                               
by a preponderance of evidence.                                                                                                 
                                                                                                                                
MS.  PAM LABOLLE,  President, Alaska  State Chamber  of Commerce,                                                               
said  they recently  suffered embezzlement  and  didn't have  the                                                               
ability to determine  the extent of their  loss through volunteer                                                               
efforts. They hired an accountant,  which will cost an additional                                                               
$10,000. The chamber sees the  value of this legislation for non-                                                               
profits, because they know what the expense is.                                                                                 
                                                                                                                                
CHAIR SEEKINS  said that a  lot of  non-profits are too  small to                                                               
have many  checks and balances  and he can  see why they  want to                                                               
have  volunteer time  counted.  It has  intrinsic  value and  the                                                               
court should  be able to make  a value determination in  terms of                                                               
restitution. The  question now is  do they  want to bring  a not-                                                               
for-profit organization under the same bill.                                                                                    
                                                                                                                                
MS.  ANNE  CARPENETI,  Department  of Law,  said  she  wasn't  as                                                               
familiar with the  bill as she would like to  be, but restitution                                                               
is hard for judges, prosecutors  and defense lawyers. Limiting it                                                               
to non-profits was a beginning point.                                                                                           
                                                                                                                                
SENATOR THERRIAULT wanted to know  if this bill gives non-profits                                                               
something   that  private   individuals   and  businesses   don't                                                               
currently enjoy.                                                                                                                
                                                                                                                                
MS.  CARPENETI  replied  she  thought they  were  and  asked  the                                                               
sponsor.                                                                                                                        
                                                                                                                                
REPRESENTATIVE WEYHRAUCH responded that wasn't what he said.                                                                    
                                                                                                                                
CHAIR SEEKINS said that would need to be clarified.                                                                             
                                                                                                                                
SENATOR THERRIAULT said  that perhaps the policy  call is whether                                                               
the benefit society gets out  of non-profits matches that special                                                               
treatment.                                                                                                                      
                                                                                                                                
TAPE 03-19, SIDE B                                                                                                            
                                                                                                                              
CHAIR SEEKINS  closed testimony and  said he would hold  the bill                                                               
for further work.                                                                                                               
                                                                                                                                
CHAIR SEEKINS announced  that the sponsor of SB 59  asked to hold                                                               
the bill.                                                                                                                       
                                                                                                                                
                   SB  49-2003 REVISOR'S BILL                                                                               
                                                                                                                                
CHAIR SEEKINS announced SB 49 to be up for consideration.                                                                       
                                                                                                                                
SENATOR ELLIS moved to pass  SB 49 from committee with individual                                                               
recommendations. There was no objection and it was so ordered.                                                                  
                                                                                                                                
CHAIR SEEKINS adjourned the meeting at 2:24 p.m.                                                                                

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