Legislature(1993 - 1994)
02/22/1993 01:40 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 22, 1993 1:40 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator George Jacko Senator Dave Donley Senator Suzanne Little MEMBERS ABSENT NONE OTHERS PRESENT Senator Randy Phillips Representative Kay Brown COMMITTEE CALENDAR SENATE JOINT RESOLUTION NO. 9 Relating to an amendment to the Constitution of the United States prohibiting desecration of the Flag of the United States. BILL SCHEDULED BUT NOT HEARD THIS DAY. SENATE BILL NO. 56 "An Act relating to the budget reserve fund established under art. IX, sec. 17, Constitution of the State of Alaska." SENATE BILL NO. 113 "An Act making a special appropriation to the constitutional budget reserve fund of certain money obtained in settlement with British Petroleum America for resolution of disputes over taxes arising under the state's worldwide unitary apportionment income tax; and providing for an effective date." BILL SCHEDULED BUT NOT HEARD THIS DAY. SENATE BILL NO. 19 "An Act relating to the crime of conspiracy." SENATE BILL NO. 64 "An Act relating to civil liability for workplace safety inspections; and providing for an effective date." SENATE BILL NO. 49 "An Act relating to preelection reports; closing the two-day reporting gap in those reports; setting the date of February 15 for filing year-end campaign finance reports; and requiring reporting of zero year-end reports." SENATE JOINT RESOLUTION NO. 6 Proposing amendments to the Constitution of the State of Alaska authorizing the use of the initiative to amend the Constitution of the State of Alaska by approval of two-thirds of the votes cast on the proposed amendment. BILL SCHEDULED BUT NOT HEARD THIS DAY. SENATE JOINT RESOLUTION NO. 8 Proposing amendments to the Constitution of the State of Alaska relating to capital projects and loan appropriations, and to the expenditure limit. BILL SCHEDULED BUT NOT HEARD THIS DAY. SENATE BILL NO. 56 "An Act relating to the budget reserve fund established under art. IX, sec. 17, Constitution of the State of Alaska." PREVIOUS SENATE COMMITTEE ACTION SJR 9 - NONE SB 113 - NONE SB 19 - See Judiciary minutes dated 2/19/93. SB 64 - See Labor & Commerce minutes dated 2/4/93 and 2/9/93. See Judiciary minutes dated 2/19/93. SB 49 - See Senate State Affairs minutes dated 1/29/93. See Judiciary minutes dated 2/17/93 and 2/19/93. SJR 6 - See State Affairs minutes dated 1/25/93 and 1/27/93. See Judiciary minutes dated 2/17/93 and 2/19/93 SJR 8 - See State Affairs minutes dated 1/27/93. See Judiciary minutes dated 2/15/93 and 2/19/93. SB 56 - See State Affairs minutes dated 2/3/93 and 2/10/93. WITNESS REGISTER Ray Brown, Attorney 311 Gulkana Avenue Anchorage, Alaska POSITION STATEMENT: Opposed SB 19. Dean Guaneli, Chief Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Supported SB 19. James Baldwin, Asst. Attorney General General Civil Section Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Opposed ACTION NARRATIVE TAPE 93-16, SIDE A Number 001 Chairman Robin Taylor called the Judiciary Committee meeting to order at 1:40 p.m. SENATOR TAYLOR introduced SB 49 (YEAR-END CAMPAIGN FINANCE REPORTS) sponsored by SENATOR TIM KELLY and SENATOR DAVE DONLEY. The bill had been previously heard, so it was decided to move it. SENATOR HALFORD moved to pass SENATE BILL NO. 49 from committee with individual recommendations. Without objections, so ordered. SENATOR TAYLOR returned SB 19 (CRIME OF CONSPIRACY) to committee for additional testimony. He noted RAY BROWN was waiting on teleconference in Anchorage. SENATOR HALFORD returned to a previous objection from SENATOR DONLEY dealing with a law enforcement officer being part of the conspiracy, and he referred to the version in the House which also excluded action from anyone in cooperation with the police. He said the House bill had an affirmative defense, and he read the applicable paragraph. He also said he would like to hear from someone in Public Safety as to why the law enforcement officials shouldn't be excluded, as raised by SENATOR DONLEY. Number 148 SENATOR TAYLOR invited RAY BROWN in Anchorage to testify. MR. BROWN referred to questions raised by SENATOR DONLEY about the second person being a police officer, and having a provision in statute to specifically prohibit it. He also referred to questions from senators about the propriety of having a police officer being the second person in the conspiracy, and he pointed out the problem of having a police officer as the second person in a conspiracy, was entrapment. MR, BROWN explained entrapment on the federal level was decided by a jury, but he said entrapment was a mixed bag of fact and law, and initially determined by the court. He described how an officer in Alaska could be in grave danger, and he pointed to components in existing statutes in Title 11. MR. BROWN said all of the examples given at the last meeting on SB 19 are addressed in existing statutes, thus, there would be no fear of over-reaching by law enforcement personnel. He claimed the outlying areas did not have the control or quality of training, and the existing statutes would cover all of the participants the conspiracy bill would reach. Number 225 MR. BROWN said the bill would treat all players in a conspiracy act identical, even the peripheral participants, by nature of being near the conspiracy. He claimed it would allow tremendous prosecutorial over-reaching, and he described what he called the reality of the number of cases. He continued to give his opinions on fiscal implications, jurisdictions, attorneys for indigent defendants, multi- defendant conspiracy trials, rural trials, and the Sixth Amendment. SENATOR DONLEY asked MR. BROWN for his definition of "overt Act," and MR. BROWN explained why he thought it would be difficult, but he thought there should be an attempt to do so. Number 285 SENATOR DONLEY read his definition, and MR. BROWN thought his definition was better than leaving it undefined, and would address some of the concerns. They also discussed a definition for "conspiracy," and MR. BROWN expanded into the problems with escalating the conspiracy. He thought the bill should be more clearly defined to prevent this. SENATOR TAYLOR called on MR. GUANELI to testify again. SENATOR HALFORD asked for some clarification if the only other person involved was a policeman, and he read a section from a previous conspiracy bill relating to the involvement of police personnel in the conspiracy. He wanted to know how the section from the House version would apply to the legislation at hand. Number 368 MR. GUANELI agreed with SENATOR HALFORD'S concerns about the police involvement, and explained the use of investigators to gain evidence. He thought it would undermine the case to prohibit the state from using the police officers to provide evidence of conspiracy, and he described the possible use of an undercover police officer to infiltrate the conspiracy. MR. GUANELI explained what evidence would be left for the jury to make a decision, and he also explained how difficult it might be for the prosecution without the assistance of the undercover officers. SENATOR HALFORD asked about the Governor's bill, and MR. GUANELI discussed the related provisions in the bills. He said there was no prohibition in the Governor's bill to having a police officer as part of the conspiracy; therefore, it would be allowed. SENATOR DONLEY asked about the prevention of solicitation, and MR. GUANELI reviewed present legislation which might cover the problem. SENATOR TAYLOR led a discussion with the committee members and MR. GUANELI on organized crime rings, solicitation statutes, entrapment, complex issues of fact, interpretation of federal rules, and case law. Number 471 SENATOR HALFORD decided not to move the bill until he learned more about the Governor's bill. SENATOR DONLEY offered three amendments, the first being to define "overt act," from the House Bill 343 from 1992, 'In this section, "overt act in furtherance of the conspiracy' means an act of such character that it manifests a purpose on the part of the actor that the object of conspiracy be completed." He suggested it would be inserted on page 1, line 8, following the word "conspiracy," to CSSB 56, 8- LSO246\A, and explained reasons for his amendment. There was some discussion among committee members and MR. GUANELI, before SENATOR TAYLOR moved Amendment #1. Without objections, so ordered. Number 506 SENATOR DONLEY proposed a second amendment which would address communications on page 1, line 7, after the word "activity," to insert "and communicate that agreement." SENATOR HALFORD expressed his concerns about the burden of proof. They discussed the proposed amendment at some length in terms of a specific offense, agreement to the conspiracy, and proving intent. SENATOR DONLEY moved to change the amendment to add to the amendment, "... by words or other conduct." SENATOR HALFORD had concerns that in a multifaceted conspiracy, the defense would argue that unless everyone knew every detail, the conspiracy wasn't complete. MR. GUANELI explained why he didn't think it would be a problem. SENATOR DONLEY agreed, and still thought an affirmative act of communication was necessary. Number 570 SENATOR HALFORD was not convinced ... TAPE 93-16, SIDE B Number 001 ... there should be an addition, since it might be another standard that had to be proved. SENATOR TAYLOR suggested an example that might be applicable to the standard. SENATOR DONLEY added his part to the example to defend his amendment. There was a general discussion on the amendment as it related to the conspiracy example. SENATOR TAYLOR repeated SENATOR DONLEY'S amendment and asked if there was objection to the amendment. SENATOR HALFORD objected and the amendment failed. Number 047 SENATOR DONLEY moved to add on page 3, a new subsection on line 4, "(h) In a prosecution under this Section, it is an affirmative defense that in order to obtain the evidence of the commission of a conspiracy, a public law enforcement official, or a person working in cooperation with the official, agreed with the defendant to engage in and cause the performance of the offense, and the defendant and the law enforcement official, or person working in cooperation with the official, are the only persons who conspired to commit the offense." SENATOR HALFORD said he wasn't going to support the amendment, but suggested a better place on page 2, between (d) and (e), and he explained his reasons. SENATOR DONLEY asked to have the amendment replaced on page 2, line 16, with a new subsection following (d). SENATOR TAYLOR asked for objection on the amendment, and SENATOR HALFORD objected. Motion failed on a 3 - 2 vote. Number 089 SENATOR DONLEY asked to retry the motion using just the law enforcement officials, and SENATOR TAYLOR clarified the amendment. SENATOR HALFORD still objected to the amendment, and the amendment failed on a 3 - 2 vote. SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 19(JUD) as amended from committee with individual recommendations. Without objections, so ordered. SENATOR TAYLOR returned SB 64 (IMMUNITY FOR SAFETY INSPECTIONS) to committee, and SENATOR HALFORD moved to adopt the CS FOR SENATE BILL NO. 64 (8-LSO445\O, Ford, dated 2/22/93) as a work draft. Without objections, so ordered. SENATOR TAYLOR invited SENATOR DONLEY to offer his amendment. SENATOR DONLEY quoted some testimony previously on the bill about the interplay between the committee substitute and the health insurance proposal for health insurance benefits for impacted, injured workers and their families. He explained how this would benefit the families and keep them whole while they got back on their feet. Number 129 SENATOR DONLEY proposed Amendment #1 which would provide medical coverage for 18 months for the injured worker, who no longer receives compensation, and he explained the amendment. SENATOR TAYLOR reviewed the Van Biene case, tort law, additional benefits, litigation, insurance carriers, workers' compensation rights, and third party liability. He explained why he was opposing the amendment. SENATOR DONLEY defended his amendment claiming the Alaskan workers' compensation actually saved money in the face of rising costs elsewhere, and he credited the cooperation between labor and management. Number 203 SENATOR TAYLOR appreciated his comments, but thought there had been a hidden price to pay for bringing down the costs, one of which is the manner in which the lawyers represented the injured workers. SENATOR JACKO suggested Amendment #1 was "out of order" if it didn't fit under the title, but SENATOR TAYLOR preferred to vote on the amendment. The amendment failed on a 3 - 2 vote. SENATOR DONLEY explained why he would like to have a discussion on "intentional misconduct standard," and SENATOR TAYLOR initiated a question and answer exchange on the subject with SENATOR DONLEY, who continued to defend his definition. SENATOR DONLEY proposed Amendment #2, inserting " reckless or" at the beginning of line 11, on page 1. His amendment was defeated on a 3 - 2 vote. SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 64(JUD) from committee with individual recommendations. There was objection. The bill passed on a 3 - 2 vote. SENATOR TAYLOR introduced SB 56 (ADMINISTRATION OF BUDGET RESERVE FUND) and invited REPRESENTATIVE KAY BROWN and SENATOR RANDY PHILLIPS to review the bill. Number 318 REPRESENTATIVE BROWN explained her work on the legislation, which would address what money should go into the Constitutional Budget Reserve Fund. She said the legislation was approved by the voters in 1990, but she said there had been a struggle to interpret the term, "administrative proceeding." REPRESENTATIVE BROWN reviewed Section 1 in the State Affairs committee substitute, which deals with what happens when there is termination of an administrative proceeding for purposes of deciding where money should go into the fund. REPRESENTATIVE BROWN referred the committee to page 2, subsection (b), which deals with money that would arrive in the future as the result of a proceeding and would provide for an agreement administering money in the future - and would not be captured by the reserves. REPRESENTATIVE BROWN explained under what conditions money could be spent from the reserves, and addressed in language beginning on page 2, line 7. She said the same sources would be examined in one year to determine what would be available for appropriation, and she explained the language specifies that "Available for Appropriation" does not include federal funds, money in the earnings reserve of the permanent fund, or money held in trust for a particular purpose. REPRESENTATIVE BROWN quoted the bill as to how money available for appropriation for the current fiscal year is money in the general fund, including money from lapsed appropriations, that has not been appropriated during a previous fiscal year during any fiscal year or to any special fund or account. REPRESENTATIVE BROWN discussed the provisions under which money from the Budget Reserve Account could be spent and the current attorney general's opinion, which would prevent capture of specific funds in the account. Number 373 SENATOR PHILLIPS gave some history of the constitution amendment passed on the floor of the House in 1990, and he stressed there was plenty of public records and legislative intent that indicated all money from back taxes from oil and gas should be placed in the Constitutional Budget Reserve Fund. He said the vote was 70% in favor of the constitutional amendment, and was clearly the intent that all the back taxes should be placed in the Constitutional Budget Reserve Fund - not by the interpretation of the attorney general. SENATOR PHILLIPS explained how and why SB 113 would place the money from the latest settlement money in the Constitutional Budget Reserve Fund. SENATOR HALFORD questioned whether the bill dealt with the existing $680 million settlement. Number 408 REPRESENTATIVE BROWN claimed there was more money at stake, listed some other settlements, and expressed her frustration at their inability to get a clear understanding from the administration as to how much money received should be in the Constitutional Budget Reserve Fund. REPRESENTATIVE BROWN outlined a problem with conflicting numbers between the Legislative Budget and Audit Committee, with the administration giving a much lower number. She explained this was in addition to new money to come, and she suggested the legislation, if made retroactively, could capture a great deal more money in the account. Number 452 SENATOR HALFORD said it was difficult to make an ideological argument, and delay the effective date. REPRESENTATIVE BROWN said it was a practical argument in light of the position by the administration not to put any of the settlement money in the budget reserve account, and she discussed their efforts to reinstate the interpretation by the legislature. SENATOR PHILLIPS differed from REPRESENTATIVE BROWN in that he wanted to make the legislation retroactive as mentioned by SENATOR HALFORD. He said REPRESENTATIVE BROWN had asked for an audit, which the Budget and Audit Committee had granted, to find out how much money is in the account. SENATOR TAYLOR led a discussion with SENATOR HALFORD and SENATOR PHILLIPS on the retroactive effective date, filing a suit, vetoing the bill, statute law, Catch 22, and a possible Superior Court decision. SENATOR HALFORD outlined a scenario that could put the legislature on the wrong side of the argument and might precipitate a special session as accomplices in the wrong. SENATOR PHILLIPS suggested passing a resolution directing Legislative Budget and Audit to pursue a lawsuit, and SENATOR TAYLOR gave some options that might deny the money to the administration. TAPE 93-17, SIDE A Number 001 SENATOR TAYLOR thought they might be able to persuade the governor through resolutions, legislation such as SB 56, over-riding possible vetoes, or bring litigation. He gave his preference as the retroactive clause, and expressed some concern at the generalized meaning of the words "past due," on page 1, line 10 and 13. REPRESENTATIVE BROWN explained, under present statute, taxes are due when the assessment notice is sent, with a 60 day period where conferences can be requested, and she explained possible litigation for past due taxes. SENATOR TAYLOR expressed concern that sending out a notice of the amount of taxes due is an executive function, a function abused in the past because there hasn't been proper auditing. Number 064 REPRESENTATIVE BROWN agreed the auditors have a great deal of control over the whole process, but she said the legislature was barely staying ahead of the Statue of Limitations in the tax collection function, and she suggested a way to become more current on the audits. SENATOR TAYLOR suggested ways to motivate the administration by changing the Statute of Limitations. REPRESENTATIVE BROWN suggested a course of action for the coming year, but SENATOR HALFORD objected to the definition of "available for appropriation," because it is implied in the constitution. SENATOR TAYLOR thought the only alternative would be to go to the Supreme Court to ask for some definition. REPRESENTATIVE BROWN had some problems with an opinion from the Legislative Counsel limiting access to the Constitutional Budget Reserve Fund. SENATOR TAYLOR noted representation from the Attorney General's office, and asked ATTORNEY GENERAL JAMES BALDWIN if he wanted to testify for the record, since there presently was not a quorum. Number 171 MR. BALDWIN wanted to testify on a couple of points, and he gave his view of past legislative history, including the House being unhappy with the interpretation from the Department of Law. He said they had agreed to arrive at a legislative definition, based on some research from the California Supreme Court placing heavy weight on statutes interpreting a constitutional amendment there. He offered to provide the committee citations from two cases from California, which allows constitutional provisions by the legislature to legislate in a particular area. In this case, he thought there needed to be a sharper definition for some of the fuzzier concepts in the amendment. MR. BALDWIN said they were attempting to work with the Legislative Budget and Audit Committee to come up with an approach to the definitions. He claimed their opinion was correct in the interpretation of "administrative proceedings," and expressed pleasure at the effective date as a compromise, which was clouded by the British Petroleum compromise. MR. BALDWIN reviewed the procedures for putting money into the account and taking it out. He expressed his preference for working on how the legislature take the money out of the account, and he noted the key language on page 2, lines 8 through 16 and lines 11 through 14. He spoke of possible accommodations in working with REPRESENTATIVE BROWN. He criticized the bill for considering what isn't available for appropriations, as a way of defining what is available for appropriation. MR. BALDWIN expressed some fears in relation to the Mental Health Trust Funds, and SENATOR HALFORD asked about the Science and Technology Endowment. He said their approach was not to deplete the statutory funds before having access to the budget reserve fund, but he claimed they had a more positive approach. Number 261 MR. BALDWIN discussed research material from media reports and voter information, and he promised the committee some wording to assist in changing lines 11 through 14 of page 2. SENATOR TAYLOR said he had no further schedule on the bill, but would like to have MR. BALDWIN'S amendments before the end of the week to be circulated to the two prime sponsors. He promised to bring the bill to committee for further work, and he wanted an amendment on the effective date. He expressed appreciation to MR. BALDWIN for his work. SENATOR HALFORD reviewed the interpretation and suggested there was more room in defining "revenue available for appropriation." He approved of the most conservative view of the legislation. There being no further business to come before the committee, the meeting was adjourned at 3:32 p.m.