Legislature(1995 - 1996)
04/29/1995 02:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE April 29, 1995 2:35 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Mike Miller MEMBERS ABSENT Senator Al Adams Senator Johnny Ellis COMMITTEE CALENDAR SENATE CONCURRENT RESOLUTION NO. 19 Establishing the Blue Ribbon Commission on Gaming and Gambling and relating to commission recommendations regarding gaming and gambling in the state. SENATE BILL NO. 172 "An Act eliminating 'monte carlo' nights as an authorized form of charitable gaming; and providing for an effective date." CS FOR HOUSE BILL NO. 219(FIN) "An Act relating to medical care for prisoners; and authorizing special medical parole for severely medically disabled or quadriplegic prisoners." SENATE BILL NO. 154 "An Act relating to an aggravating factor at sentencing." CS FOR HOUSE BILL NO. 234(JUD) "An Act relating to administrative adjudication under the Administrative Procedure Act." SENATE BILL NO. 167 "An Act relating to day fines in certain criminal cases and release of employment information for use in the collection of criminal judgments." CS FOR HOUSE BILL NO. 13(STA) "An Act requiring persons filing for nomination for, or campaigning for election for, state elective office, persons authorized to make or incur political campaign expenditures before formally filing for nomination to state elective office, and groups acting on behalf of any of these, to file certain election campaign finance disclosure reports." CS FOR HOUSE BILL NO. 42 (STA) am "An Act relating to absentee voting, to electronic transmission of absentee ballot applications, and to delivery of ballots to absentee ballot applicants by electronic transmission, and enacting a definition of the term 'state election' for purposes of absentee voting." CS FOR SENATE BILL NO. 95(L&C) "An Act relating to automobile liability insurance for uninsured or underinsured motor vehicles; and providing for an effective date." PREVIOUS SENATE COMMITTEE ACTION HB 39 - See Health, Education & Social Services minutes dated 3/6/95. HB 74 - See State Affairs minutes dated 3/28/95. HB 13 - See State Affairs minutes dated 4/25/95. SB 167 - No previous Senate action. HB 42 - See State Affairs minutes dated 3/28/95. See Judiciary minutes dated 4/22/95 and 4/24/95. SB 154 - No previous Senate action. SB 95 - See Labor and Commerce minutes dated 2/28/95, 3/21/95, and 3/28/95. See Judiciary minutes dated 4/12/95, 4/19/95 and 4/24/95. WITNESS REGISTER Representative Gene Therriault Alaska State Legislature Juneau, Alaska 99811-1182 POSITION STATEMENT: Sponsor of HB 39 Matt Anderson Emergency Medical Services Section Dept. of Health and Social Services P.O. Box 110616 Juneau, Alaska 99811-0616 POSITION STATEMENT: Testified in support of HB 39 Patty Swenson Legislative Aide Alaska State Capitol Juneau, Alaska 99811-1182 POSITION STATEMENT: Testified for sponsor of HB 74 Margot Knuth Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Testified in support of SB 154 Julie Jensen-Zarr POSITION STATEMENT: Testified in support of HB 74 Bruce Botelho Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811 POSITION STATEMENT: Testified in support of SCR 19 Denny Dewitt Legislative Aide Alaska State Capitol Juneau, Alaska 99811-1182 POSITION STATEMENT: Testified for sponsor of HB 219 Jayne Andreen Council on Domestic Violence and Sexual Assault Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Testified in Support of SB 154 Theresa Williams Assistant Attorney General Department of Law 1031 W. 4th Ave., Suite 200 Anchorage, AK 99501-1994 POSITION STATEMENT: Testified in support of CSHB 234(JUD) Chris Christensen Judicial Counsel Alaska Court System 303 K St. Anchorage, AK 99501-2084 POSITION STATEMENT: Testified in support of SB 167 Jeff Logan Legislative Aide Alaska State Capitol Juneau, Alaska 99811-1182 POSITION STATEMENT: Testified for sponsor of HB 13 Tom Anderson Legislative Aide Alaska State Capitol Juneau, Alaska 99811-1182 POSITION STATEMENT: Testified for sponsor of HB 42 ACTION NARRATIVE TAPE 95-27, SIDE A Number 001 SB 172 ELIMINATE MONTE CARLO NIGHTS CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:35 p.m. The first order of business was SB 172. [The following is a verbatim transcript.] SENATOR TAYLOR: Next one up is SB 172, "An Act eliminating monte carlo nights," at the request of whom, Senator Miller? SENATOR MILLER: This was put in by the request - I'm not sure, but it was one that we had been working with the Administration on ... this particular area regarding some problems that we could be having with the Indian Gaming Act... we had been working with the Administration on. SENATOR TAYLOR: Is there anybody here who wishes to testify on SB 172? The basic purpose of this bill is to eliminate, from state law, the right of any person to conduct a monte carlo night for charitable gaming purposes, or any other purpose for that matter. Is there anybody who wishes to testify on this legislation? Senator Miller, in your opinion, does this, in fact, eliminate monte carlo night, to the best you can tell? SENATOR MILLER: To the best I can tell, it does. [End of verbatim transcript.] SENATOR MILLER specified Section 3 prohibits the activity. SENATOR TAYLOR stated it is his understanding that under current gambling legislation passed by Congress, Indian tribes are authorized to conduct gambling operations on their lands, if such gambling forms are authorized by state law. Conversely, if state law prohibits such gaming, that activity cannot be conducted on Indian land. Even though money is not exchanged in monte carlo night activities, those types of activities must be prohibited if similar activities are to be prohibited on Indian trust lands. According to the Attorney General, to prevent the expansion of gambling activities into the casino form, the state must terminate the right of any charity to hold monte carlo nights. SENATOR TAYLOR commented the Senate majority has worked closely with the Administration on this legislation. The Administration is negotiating in good faith with the Klawock Native Council regarding the development of a casino-type gambling operation on a parcel of land in Klawock. Several other groups within the state are petitioning the Secretary of Interior for that privilege. SB 172 would eliminate the opportunity to develop a casino-type establishment, however bingo, lotteries and pull tabs would still be permitted. That is the reason the legislation is on a fast track through the Senate. Number 156 SENATOR GREEN moved SB 172 out of committee with individual recommendations. There being no objection, the motion carried. HB 39 AUTHORITY TO PRONOUNCE DEATH REPRESENTATIVE GENE THERRIAULT, sponsor of HB 39, gave the following testimony. HB 39 is the reintroduction of legislation that died in the Senate Rules committee last year due to lack of time. The measure grants the authority to intensive care paramedics, physicians assistants, and EMTs to pronounce death in certain circumstances. Due to the rural nature of Alaska, many volunteer care providers respond to emergency situations where death may occur but are out of contact with a consulting physician. Once CPR is started, the provider cannot stop until the victim is in a location where a physician can pronounce death. Situations occur in which the provider knows the victim cannot be resuscitated, yet must continue futile CPR, which can be traumatic to the victim's relatives, and to the provider. He has worked extensively with state agencies that oversee EMT services to draft concise language. Section 2 adds a new section to the statute to specify when the authority is granted and the procedure and information necessary to pronounce death. Number 209 SENATOR TAYLOR questioned the definition of "properly administered resuscitation" on page 4, and wondered whether the 30 minute CPR requirement could create provider liability when the victim is not hypothermic. REP. THERRIAULT repeated under current law, once a provider begins to administer CPR, CPR cannot be stopped until a physician pronounces death. The 30 minute limit was arbitrarily chosen, but grants the authority to pronounce death after 30 minutes. Number 230 SENATOR TAYLOR clarified the 30 minute limit should be considered to be a reasonable standard; not an absolute standard. He expressed concern that by specifying a 30 minute time limit, the risk of someone enforcing it in an illogical situation increases. He discussed a situation in Wrangell in which a car accident victim was killed instantly, and fortunately the paramedics were able to contact a physician shortly after arriving on the scene. However, if the physician was unable to be contacted, it would have been useless to administer CPR for 30 minutes. He also expressed concern about the ability to pronounce death. He recounted a second situation in which a pilot was pronounced brain dead by the Ketchikan General Hospital but after receiving treatment at Harborview Medical Center in Seattle, is almost fully recovered. Number 270 SENATOR GREEN asked whether any individual administering CPR is still unable to stop administering CPR until a replacement is available. REP. THERRIAULT was unsure how current law applies to private individuals. Number 284 MATT ANDERSON, Training Coordinator for the Emergency Medical Services Section of the DHSS, testified in support of HB 39. The bill is medically appropriate, was crafted considering current medical techniques and standards, and will be easy to implement. Many of the issues raised by committee members can be adequately addressed by the training program. He noted the conditions required for a person to be pronounced dead on page 3 are listed as "or." He explained the 30 minute time limit for patients who fail to respond to proper resuscitation efforts follows standard medical procedure. Currently, lay rescuers trained in CPR are advised to do so until: the situation becomes too hazardous; they are physically exhausted; or until new rescuers relieve them. Number 315 SENATOR GREEN moved CSHB 39(JUD) from committee with individual recommendations. There being no objection, the motion carried. Number 318 HB 74 ASSAULT BY ADULTS ON CHILDREN PATTY SWENSON, legislative aide to Representative Bunde, sponsor of HB 74, gave the following testimony. The impetus for HB 74 was an attack on a 14 year old newspaper boy by three drunk, 20-year old men who ran over the boy with his own snowmachine. The men were charged with a misdemeanor, and are likely to receive unsupervised probation as their punishment. HB 74 changes the offense of assault by a person over 18 on a minor between the ages of 10 and 16 to a class C felony. The minor must receive physical injury requiring medical treatment. The standard of "knowingly" is used, which calls for a higher mental state, and provides a defense for persons who reasonably believed their victim was 16 years of age or older. SENATOR TAYLOR asked why the attackers were not prosecuted to the fullest extent possible under existing law. Number 360 MARGOT KNUTH, Assistant Attorney General, replied the physical injury was the result of a punch, not the snowmobile, therefore the crime was considered assault in the fourth degree. The physical injury must be serious, or a dangerous instrument must be used, to be considered more than a misdemeanor. Number 368 SENATOR TAYLOR asked if under HB 74, the same assault would be classified as a class C felony, only because the bill specifies the age differential. He questioned if the attack was on a 16 year old, the same misdemeanor classification would apply. MS. KNUTH repeated the crime is classified a misdemeanor assault if serious physical harm is not caused, and if a dangerous instrument is not used. JULIE JENSEN-ZARR testified in support of HB 74 via teleconference from Anchorage. HB 74 has received widespread community support and over 1500 petition signatures from Palmer to Homer because of the assault on a South Anchorage boy. [The remainder of Ms. Jensen-Zarr's testimony was indiscernible due to poor transmission.] SENATOR GREEN moved CSHB 74 out of committee with individual recommendations. There being no objection, the motion carried. Number 410 SCR 19 BLUE RIBBON COMMISSION ON GAMING [The following is a verbatim transcript.] MR. BOTELHO: Thank you Mr. Chairman. My name for the record is Bruce Botelho, Attorney General for the state. I apologize, Mr. Chairman, for not being here when the matter was first called. The resolution would establish a Blue Ribbon Gaming Commission between now and the 15th of January, 1996, the 1996 legislative session, to study the future of gambling and gaming in the state. It has been precipitated by a variety of developments in the state, to note three or four of those activities, one has been the push toward cruise ship gambling; second and independent, but certainly tied to it, the interest in undertaking casino gambling through the Indian Gaming Regulatory Act and the request by the Klawock Community Association to negotiate a compact under the federal law here in Alaska and the fact that they would be entitled to play any game which is otherwise authorized in the state. We also have seen legislation proposed to allow certain forms of gambling on the state ferries, we had various lottery bills in the past, the legislature has been asked to deal with such activities as paramutuel betting. All of these make clear, and certainly the national picture makes clear, that one of the major policy issues facing legislatures around the country, and our state in particular, is the future of gambling and gaming in the state. Mr. Chairman, the Administration supports this resolution, and would urge its speedy adoption. SENATOR TAYLOR: Any questions by the committee? Senator Green... SENATOR GREEN: I just have... do resolutions require an effective date, since we are appointing a committee? SENATOR TAYLOR: It will become effective upon passage. SENATOR GREEN: It's an automatic? SENATOR TAYLOR: Yes. SENATOR GREEN: It does not require... SENATOR TAYLOR: It's just a resolution anyhow, which is like an intent of the Senate or an intent of the legislature. SENATOR GREEN: O.K., it's just that it has a closure date and I just wondered if it had..., if it is automatically in place if it passed. SENATOR TAYLOR: I don't have any further questions either. Thank you very much for taking your time to come down. MR. BOTELHO: Thank you Mr. Chairman. SENATOR TAYLOR: I just wanted you to know that the Judiciary Committee in the Senate is not a bad place to visit. MR. BOTELHO: Every once in awhile, Mr. Chairman. Thank you. SENATOR GREEN: Would you like a motion for SCR 19? SENATOR TAYLOR: Yes, let there be a motion. SENATOR GREEN: SCR 19, I move that it be out of committee with individual recommendations. SENATOR TAYLOR: SCR 19 has been moved from committee with individual recommendations. Are there any objections? There being no objections, it moves from committee. [End of verbatim transcript.] HB 219 PAROLE OF TERMINALLY ILL PRISONERS Denny Dewitt, legislative aide to Representative Mulder, sponsor of HB 219, gave the following testimony. HB 219 allows a special medical parole for inmates who are either quadripalegics or bedridden with a terminal condition. It also allows the Department of Corrections to establish a billing mechanism for medical services within prisons to help control medical services, similar to a deductible in a traditional health insurance policy. It will allow the department to place itself secondary to other kinds of coverages that might be available for prisoners. This provision is particularly important in "soft bed" situations where an individual might be working and have access to health insurance, or are incarcerated for misdemeanors and maintain their health insurance during that time period. Number 469 SENATOR TAYLOR noted that during testimony in a House committee, it was disclosed that over $340,000 was spent on a prisoner who was terminally ill with AIDS in the last few months of that prisoner's life. MR. DEWITT replied the amount was $540,000. SENATOR TAYLOR asked if HB 219 would help alleviate the state from the liability of providing for medical treatment for terminally ill prisoners. MR. DEWITT explained the bill will put prisoners on special medical parole, which will enable them to become eligible for medicaid. The quality of care will improve for these individuals in settings other than prisons, since prisons are not designed to provide that type of care. Number 489 SENATOR TAYLOR noted there is a zero fiscal note. MR. DEWITT predicted the bill will save money over the long term. SB 154 AGGRAVATING FACTORS AT SENTENCING MS. KNUTH testified on behalf of the Department of Law in support of SB 154. The bill was recommended by the Sentencing Commission and fixes an oversight. Currently, previous convictions for sexual assault are considered as aggravators when sentencing sexual assault or sexual abuse perpetrators, however previous sexual abuse convictions are not considered. SB 154 allows previous sexual abuse convictions to be considered as aggravators when sentencing repeat offenders. She was unaware of any opposition to SB 154. Number 515 SENATOR TAYLOR commented it is sad that the court system is so strictly regulated in what can and cannot be applied when sentencing a repeat offender. JAYNE ANDREEN, Council on Domestic Violence and Sexual Assault, testified in support of SB 154. The CDVSA believes it is very important when dealing with offenders with a high recidivism rate that the court be able to review their full criminal history when making sentencing decisions. SENATOR GREEN moved SB 154 out of committee with individual recommendations. There being no objections, the motion carried. HB 234 ADMINISTRATIVE ADJUDICATIONS TERESA WILLIAMS, Assistant Attorney General, testified on behalf of the Office of the Governor. CSHB 234(JUD) makes minor, but important changes in the Administrative Procedures Act. It clarifies the law, saves money, and speeds the process. The Administrative Procedures Act contains some archaic language that causes delays and often results in frivolous litigation. She was unaware of any opposition to the bill. The bill is expected to reduce hearing costs to both the state and involved parties. CSHB 234(JUD) will allow routine telephonic participation, changes the reimbursement rate for witnesses, expressly authorizes the agency to allow discovery and how it will take place, and codifies existing court law regarding burden of proof and standard of proof. The bill also clarifies the time period for requesting reconsideration. Number 560 SENATOR TAYLOR asked about witness fees and other fees not included in the bill, and expressed concern that the petitioner might be burdened to such an extent that people are discouraged from petitioning for redress. MS. WILLIAMS replied the telephonic participation provision will eliminate the need to have witnesses travel and help reduce costs. SENATOR TAYLOR questioned the impact of the changes made in the bill upon the selection of forum, and who would choose what venue the matter should be tried within. MS. WILLIAMS explained the bill does not really change the selection. The old language refers to Senate districts that no longer exist; the most comparable districts are the judicial districts. SENATOR TAYLOR clarified the bill makes no substantive changes, only clean up changes. He added that discretion should allow for some adjustment of location of hearing if more appropriate for all parties. SB 167 DAY FINES & INFO FOR COLLECTING FINES CHRIS CHRISTENSEN, general counsel to the Alaska Court System, explained last year the legislature passed legislation authorizing courts to impose day fines for certain misdemeanor offenses. A day fine is based on the person's annual income. In the course of implementing this law, certain problems became apparent. Some of the problems can be rectified by simple amendments to the original law, however other problems are more fundamental. SB 167 addresses the more technical difficulties, not the fundamental problems. TAPE 95-27, SIDE B MR. CHRISTENSEN replied SB 167 contains technical changes to the law to make it more workable, however the law still contains fundamental problems. The legislature's intent in passing the law was to decrease the number of misdemeanor offenders serving jail time, and to increase fine collection rates. Two problems have occurred. First, the day fines law excludes most of the misdemeanor offenses for which people now serve jail time. About 90 percent of the people sent to jail serve time for six offenses: DWI; refusal to take a breath test; driving with a suspended license; driving with a revoked license; misdemeanor assault; and violation of a domestic violence restraining order. All six of those crimes are specifically excluded from the day fines law, and it is unlikely that jail sentences for those crimes will be eliminated by the legislature. SENATOR TAYLOR questioned the benefit to modifying some of the mandatory sentences to provide for electronic monitoring, coupled with a day fine, as opposed to serving jail time. MR. CHRISTENSEN felt there were underlying problems with the concept that would take some time to work through. He discussed a second problem with the current law. Judges are unlikely to order the payment of a day fine if the judge does not believe the person will pay the day fine. In reviewing the state's collection practices, the day fines committee discovered that current fine collection rates are extremely low and believes the program will not be widely used until the Department of Law receives additional collection tools. The federal court system is studying the possibility of preventing a person from renewing a state license until criminal fines are paid. Number 560 MR. CHRISTENSEN discussed a third fundamental problem pertains to the fine amounts that result from the day fines formula. The legislature directed that class A misdemeanors be subject to up to 365 day units, a day unit being one day of a person's salary. When trying to determine a reasonable fine, the committee decreased the amount to 45 day units, yet even at that level some fines are extreme. The fourth area of concern, described by MR. CHRISTENSEN, is about fish and game misdemeanor offenses. The day fines committee excluded those offenses from its report to prevent the imposition of another layer of complexity to the existing problems. The sentencing structure for fish and game offenses is unclear, and contains many different penalty provisions, and many offense definitions overlap. The day fines committee recommended that the legislature appoint a special committee or interagency group to assess and restructure fish and game penalty provisions and definitions of offenses. SENATOR TAYLOR agreed the legislature needs to make a policy decision on the fundamental issues raised. He asked Mr. Christensen if he believed the bill would be of significant benefit to the court system, even though it is only technical in nature, in light of the late session date. Number 512 MR. CHRISTENSEN believed if the technical changes are made, the Supreme Court would send the issue back to the day fines committee to see if implementation is possible. SENATOR TAYLOR announced he would hold the bill in committee to give members further opportunity for review. He added it could be moved out of committee quickly, if necessary. SENATOR GREEN asked if the sliding fee scale was a common approach to fine assessment. MR. CHRISTENSEN answered it is a common approach in Europe, and a few American jurisdictions have started to use it. He explained the theory is that large fines can be as much of a deterrent to criminal behavior as the threat of a very short jail sentence. Traditionally fines are imposed without regard to a person's income, and are generally low. This approach looks to a person's income to supposedly provide equity in the system. Number 486 HB 13 CAMPAIGN FILINGS & DISCLOSURES JEFF LOGAN, legislative aide to Rep. Green, testified on HB 13. HB 13 requires those candidates seeking access to the general election ballot, but whose names will not appear on the primary election ballot, to file campaign disclosure reports during the primary reporting cycle. Currently these candidates are not required to file campaign disclosure reports until the 30 day pre-general report. Therefore the candidates that make it on the general election ballot are not required to disclose to the public who is contributing money to their campaigns until October. The bill is supported by the APOC and has a zero fiscal note. SENATOR TAYLOR asked if it would be possible for a primary candidate to dodge this requirement by having another person solicit and collect money for him/her. MR. LOGAN was unsure, but remarked HB 13 covers groups, as well as individuals, therefore to receive campaign contributions, a letter of intent would have to be filed. SENATOR GREEN moved HB 13 from committee with individual recommendations. There being no objections, the motion carried. Number 464 HB 42 ABSENTEE VOTING & USE OF FAX TOM ANDERSON, legislative aide to Representative Martin, stated the bill was held in committee at the request of Senator Ellis to review the question of the potential for fraud. SENATOR TAYLOR asked if Senator Ellis had received the information he requested. MR. ANDERSON believed Senator Ellis' staff had discussed the matter with the Division of Election. MR. ANDERSON explained the Division of Elections has procedures and policies in place designed to prevent fraud. SENATOR TAYLOR noted he had a discussion with an individual who was concerned that by allowing others to waive their right to ballot privacy, his right to ballot privacy could also be eliminated. He illustrated his point by recounting the Roosevelt election results from the town of Douglas. All but two residents voted for Roosevelt, and other voters spent considerable time trying to influence the two voters to change their votes. He noted Senator Adams concern about the lack of privacy in small villages. Number 414 MR. ANDERSON explained the individual faxes the ballot; only one person on the receiving end would see the ballot, therefore he did not feel that concern was valid. SENATOR GREEN asked Senator Taylor if he was assuming that fax results would show up differently in the total. SENATOR TAYLOR thought that could happen in a very small, town such as Meyers Chuck. SENATOR MILLER commented the faxed ballots would be tallied with the other ballots from the precinct, and not separately. MR. ANDERSON clarified a person voting by electronic transmission must apply four days in advance. He added eight states have this function and there have been no problems. SENATOR GREEN moved CSHB 42 (STA)am with individual recommendations. There being no objections, the motion carried. SENATOR TAYLOR adjourned the meeting at 3:40 p.m.