Legislature(1995 - 1996)
02/26/1996 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 26, 1996 1:30 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Mike Miller Senator Al Adams MEMBERS ABSENT Senator Johnny Ellis COMMITTEE CALENDAR SENATE BILL NO. 242 "An Act relating to sentencing for felony offenses." SCHEDULED BUT NOT HEARD. SENATE JOINT RESOLUTION NO. 32 Proposing amendments to the Constitution of the State of Alaska relating to the constitutional defense council. SENATE BILL NO. 269 "An Act relating to court records concerning children in need of aid and delinquent minors." SENATE BILL NO. 270 "An Act relating to juveniles; relating to the jurisdiction of juvenile courts; relating to the release of juveniles; and relating to records concerning juveniles." SENATE BILL NO. 289 "An Act relating to runaway minors and their families or legal custodians." PREVIOUS SENATE COMMITTEE ACTION SJR 32 - No previous Senate action. SB 269 - No previous Senate action. SB 270 - No previous Senate action. SB 289 - No previous Senate action. WITNESS REGISTER Senator Judy Salo Alaska State Capitol Juneau, Alaska 99811-1182 POSITION STATEMENT: Sponsor of SB 269 Senator Steve Frank Alaska State Capitol Juneau, Alaska 99811-1182 POSITION STATEMENT: Sponsor of SB 289 Kelly Huber Alaska State Capitol Juneau, Alaska 99811-1182 POSITION STATEMENT: Testified for sponsor of SB 270 Bernard Goodno c/o P.O. Box 92 Delta Junction, AK 99737 POSITION STATEMENT: Opposed SJR 32 Gene Ottenstroer c/o P.O. Box 1059 Delta Junction, AK 99739 POSITION STATEMENT: Opposed SJR 32 Carmen Clark-Weeks 1026 Nelchina Anchorage, AK 99501 POSITION STATEMENT: Supported SB 270 Lynn Stimler ACLU P.O. Box 201844 Anchorage, AK 99520 POSITION STATEMENT: Commented on SB 269 and SB 270 Chris Christensen Office of the Administrative Director Alaska Court System 303 K St. Anchorage, AK 99501-2084 POSITION STATEMENT: Commented on SB 269 and SB 270 Cam Carlson P.O. box 80234 Fairbanks, AK 99708 POSITION STATEMENT: Supported SB 289 Diane Worley Division of Family and Youth Services P.O. Box 110630 Juneau, AK 99811-0630 POSITION STATEMENT: Commented on SB 269 and SB 270 John Regitano 210 1st Ave. Fairbanks, AK 99701 POSITION STATEMENT: Supported SB 289 Al Near P.O. Box 80847 Fairbanks, AK 99708 POSITION STATEMENT: Supported SB 289 Guy Patterson P.O. Box 70854 Fairbanks, AK 99707 POSITION STATEMENT: Commented on SB 289 Florence Loucks 201 1st Ave. Fairbanks, AK 99701 POSITION STATEMENT: Supported SB 289 Judy Shiffler 929 Reindeer Dr. Fairbanks, AK 99709 POSITION STATEMENT: Supported SB 289 Anne Carpeneti Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Commented on SB 269, SB 270 and SB 289 ACTION NARRATIVE TAPE 96-16, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:37 p.m. All members were present except Senator Ellis. The first item of business, SB 242, was rescheduled at the sponsor's request. The committee took up SJR 32. SJR 32 CONSTITUTIONAL DEFENSE COUNCIL SENATOR TAYLOR, prime sponsor of SJR 32, informed committee members the measure would amend the Alaska Constitution to create a constitutional defense council which could, on behalf of the state, bring actions or intervene in actions, involving questions of state or federal constitutional law. In the past year, the Governor dismissed the Babbitt case a few days before it was to be heard before the Ninth Circuit Court of Appeals. That case decided who would implement federal regulations concerning subsistence in Alaska. Dismissal of that case allowed the federal government to proceed, without objection, in drafting and imposing regulations on Alaskans which is in violation of the Alaska Constitution according to the Alaska Supreme Court. The legislature attempted to bring that action but was denied on the basis of standing. Similarly, an appeal was recently dismissed regarding tribal status. Dismissal of that appeal forfeited significant state constitutional rights. SJR 32 would allow voters to amend the Constitution to establish a council comprised of five appointed members, subject to confirmation by a majority of the legislature with the presiding officers of each house serving as ex-officio members. One member would be appointed by the Governor, two by the House Speaker, and two by the Senate President. Appointed members would serve five- year terms, and could be removed for cause only by the appointing authority. Terms would be staggered. The constitutional amendment would be placed before the voters during the next election cycle. Number 085 SENATOR GREEN asked if SJR 32 is patterned after constitutional amendments from other states. SENATOR TAYLOR replied two other states have amended their constitutions. In both states, the council acts in an advisory capacity to the Governor, however both states have an elected attorney general. If the governor disagrees with the advisory group, public debate would likely bring about intervention or involvement in litigation to protect the state's constitution. That amendment is considered to be a first step in both of those states, but if it does not prove to be effective, legislation similar to SJR 32 will be introduced. SENATOR ADAMS asked which states have amended their constitutions. SENATOR TAYLOR responded Arizona and Utah. SENATOR ADAMS asked, had this council been in place, what issues it would have challenged. SENATOR TAYLOR replied, aside from the two cases previously mentioned, there have been times in the past when the legislature attempted to intervene in litigation and was denied that opportunity due to standing. Number 136 BERNARD GOODNO, testifying from Delta Junction, stated he believes a constitutional defense council is unnecessary. If legislators uphold their oath of office, every law passed would conform to the Constitution. Any publically-elected official not upholding that oath is committing treason and should be tried. SENATOR TAYLOR noted this bill does not address legislation passed in the state, as adequate procedures and precautions exist, however it does address federal legislation which mandates action be taken in the state. He felt removal of office to be a harsh standard to use if a better method is available. MR. GOODNO stated he is reviewing other court cases regarding jurisdiction of the federal government and offered to send information to the committee. GENE OTTENSTROER, testifying from Delta Junction, did not believe a council is necessary, and questioned whether its formation would be legal since the council would not be publically elected yet have power to change the Constitution. He questioned whether a council, appointed by government officials, should have that power. SENATOR TAYLOR explained the council would only have the authority to bring suit if it believed the Alaska Constitution was being violated. MR. OTTENSTROER disagreed, and believed it could make changes to the Constitution. There being no further testimony, SENATOR GREEN moved SJR 32 out of committee with individual recommendations. SENATOR ADAMS objected. The motion carried with Senators Taylor, Green, and Miller voting "yea," and Senator Adams voting "nay." SENATOR ADAMS wished Senator Taylor luck in obtaining 14 votes. SB 269 CT RECORDS PUBLIC FOR CERTAIN DELINQUENTS Number 223 SENATOR JUDY SALO, sponsor of SB 269, gave the following summary of the legislation. SB 269 removes some of the current protection for juvenile names of perpetrators of crime. The existing protection ensures a juvenile does not become a criminal by virtue of being so labelled, however the nature of juvenile crime in the past decade has changed, and more juveniles are committing felonies. In drafting SB 269, a balance between the rights and protection of juvenile offenders and victims of juvenile crime was considered. SB 269 would allow records to be opened if the offender committed a felony and is over 13 years of age. Because of the escalating number and serious nature of juvenile crimes, the vast majority of Alaskans feel juvenile offenders are overprotected. SENATOR SALO continued. Section 1 lists those records still protected. Section 1(d)(2) exempts the records of minors in need of aid to prevent the loss of federal funding. Section 2 again addresses the child in need of aid confidentiality provision, and Section 3 pertains to the opening of records and their availability. The fiscal note from the Department of Health and Social Services is extensive and deals with the potential loss of federal funding. Number 275 SENATOR ADAMS stated both SB 269 and SB 270 conflict with federal law, and need further review to remedy that problem. Additionally, the state would lose Title IV funding which amounts to $8 million per year. SENATOR GREEN asked if there has been a way to do both. SENATOR SALO replied she and staff reviewed this problem extensively. Representative Oken has introduced a bill which addresses the same issue and may come closest to maintaining federal funds. She explained if the Court System is asked to differentiate between records of minors, the process to delineate between all of the records would be extensive, therefore not only would federal funding be jeopardized, but the workload would increase substantially. SENATOR ADAMS questioned whether the general policy issue of opening records of children 13 and older should be reviewed. SENATOR GREEN asked if any distinction is made regarding access to records based on the nature of the crime, under current law or in SB 269. SENATOR SALO replied SB 269 does allow records of felons to be opened, but the differentiation was made in the spirit of preventing the names of minors who had committed one misdemeanor from being released, rather than to comply with federal law. She commented the records would become closed again at age 18 if the sentence had been served, but that is unlikely if a person committed a felony. SENATOR TAYLOR announced he would hold further testimony on SB 269 until both Senators Frank and Halford have presented testimony on their bills. SB 289 MISC. LAWS RELATING TO RUNAWAY MINORS SENATOR STEVE FRANK, sponsor of SB 289 gave the following testimony. SB 289 arose from discussions with parents in Fairbanks about runaways, a difficult issue surrounded by an extreme amount of frustration. Concrete suggestions from parents were studied when drafting the legislation to find ways to improve the situation. SB 289 removes "just cause" in AS 11.51.130 (the contributing to the delinquency of a minor section), because it is virtually impossible for the Department of Law to prosecute a person because those words create a large loophole. SB 289 requires a police officer to take a runaway home, after being picked up. This policy change mandates the police officer to escort the child to the home and determine whether it is a safe environment, rather than rely on the runaway's statements. If the police officer feels the child could be in danger in the home environment, the runaway would be taken elsewhere. SB 289 also addresses the revolving door nature of runaway shelters by requiring that shelters be "semi-secure," which would enable shelter managers to notify police when a runaway has left. That term was chosen because the requirement of a fully secure shelter would entail constitutional questions and higher costs. SB 289 places more emphasis on family reconciliation and decreases the revolving door problem. SENATOR FRANK explained changes made to the proposed committee substitute. On page 1, lines 14 and 15, the words "without just cause" would be deleted because there are not many good reasons to encourage a child to be repeatedly absent from school. SENATOR ADAMS asked who suggested the changes made in the proposed committee substitute. SENATOR FRANK replied parents made the suggestions. SENATOR FRANK continued. On page 2, line 15, the phrase "within 12 hours" should be deleted as it is an arbitrary amount of time which is unnecessary. On page 2, line 29, and page 3, line 3, the word "suspect" should be changed to "believed" to create a higher standard for the police officer to meet. SENATOR TAYLOR noted the actual work draft of the committee substitute is significantly different than the bill that was referred to the committee. He commented on page 2, beginning on line 2, language has been added regarding notification of various departments. SENATOR FRANK explained his staff has been working with the department, service providers and parents. Changes to the proposed committee substitute reflect that effort. SB 270 JUVENILE OFFENDER PROCEEDINGS & RECORDS KELLY HUBER, legislative assistant to Senator Halford, sponsor of SB 270, explained the legislation as follows. SB 270 reflects concerns about the juvenile justice system brought to Senator Halford's attention by the Municipality of Anchorage. SB 270 provides municipalities the ability to respond to less serious juvenile offenders by expanding its jurisdiction to subject juveniles who commit less serious crimes to civil infractions and/or mediation. SB 270 also grants the court more flexibility when considering standard bail in sentencing factors. This will provide the courts the latitude to make appropriate decisions when the public interest differs from the best interest of the juvenile. The bill also amends current statute to make public records of juvenile offenders age 13 or older. That provision applies to misdemeanor offenses as well as felonies, however there are specific requirements for different offenses. SENATOR TAYLOR asked whether the disclosure provision in SB 270 would create the same problems discussed in Senator Salo's bill. MS. HUBER answered that regarding the elimination of federal funds, the sponsor is aware of that possibility and expects that issue to be addressed in the Finance Committee. SENATOR TAYLOR felt the legal change necessary to satisfy that concern should be made in the Judiciary Committee. SENATOR ADAMS suggested incorporating SB 270 into SB 269. The committee took public testimony on SB 269, SB 270 and SB 289. Number 473 CARMEN CLARK-WEEKS, Anchorage Municipal Prosecutor, testified in support of SB 270. The bill grants the municipality flexibility when responding to low-level juvenile offenses. Current response demands to an increased number of serious juvenile offenses prevents the municipality from giving attention to lower-level offenses. Section 1 would allow the municipality to set up a program to allow individuals to be immediately charged with the infraction, would appoint a hearing officer to respond to the charges and set immediate consequences. Section 2 gives the court more options when determining the juvenile's level of dangerousness, community needs, likelihood that parents or guardians will get them to court, and the likelihood of reappearance in court. Currently the juvenile court system, in making conditions of release or dispositional orders, is restricted to choosing the option that is in the best interest of the juvenile. SB 270 incorporates the same factors used by the court with adult offenders. Regarding the policy issue of record disclosure, Ms. Clark-Weeks commented that although the public perceives the juvenile justice system to be ineffective, to a large degree, that misperception is created by the cloak of secrecy surrounding that system. The secrecy allows judges, prosecutors, defense attorneys and witnesses to avoid responsibility and accountability. LYNN STIMLER, Executive Director of the Alaska Civil Liberties Union (ACLU), testified in opposition to the record disclosure provision in both SB 269 and SB 270. She discussed HB 115 which did not pass out of committee because of the fiscal note attached to it. She asked for more clarification of the costs associated with record disclosure. She disagreed that secrecy is a problem. She noted juveniles have a lesser right to attorneys than adults therefore finding enough attorneys to defend disclosure of records will be difficult. Juveniles have a fundamental right of privacy and a right to rehabilitation; the disclosure of records is violative of those rights and may be detrimental to employment and educational potential. She noted HB 104 permits the release of juvenile records to the media. She felt it important that all of these bills be reviewed simultaneously so that this issue is addressed with consistency regarding juvenile rights. Number 569 SENATOR TAYLOR commented many people share the same concerns but felt it is difficult to rationalize the current policy in which a juvenile is treated as an adult in district court and the name is disclosed if he/she committed misdemeanor offenses, such as reckless driving, in possession of tobacco and/or alcohol, or damaging public property, however if that same juvenile stole a vehicle, a felony offense, he/she falls under the jurisdiction of the Division of Family and Youth Services and records are kept confidential. TAPE ONE, SIDE TWO Number 000 MS. STIMLER felt the scenario described to be somewhat inflammatory but plausible. She noted the State of Alaska has had a consistent policy in regard to the protection of juvenile records but is now moving toward disclosure. Although she opposed disclosure of any juvenile records, she repeated her belief that a piecemeal approach may be unconstitutional and may violate important federal legislation that was enacted for a purpose. She asked if the legislature will be setting up a revolving door of recidivism because disclosing records stigmatizes juveniles. She felt the goal of the juvenile justice system should be rehabilitation. SENATOR TAYLOR clarified his opinion that existing state law is a piecemeal approach which treats juveniles as adults for some offenses and not for others with little rationale for the differentiation. He agreed a more consistent approach is necessary to meet objectives. MS. STIMLER added that if the legislative focus regarding these bills is on finding ways to prevent the loss of federal funds, the same problems will exist. SENATOR TAYLOR commented the goal should be to create a rational policy and asked Ms. Stimler to provide written suggestions. Number 544 MS. CLARK-WEEKS clarified if a juvenile did more than $50 in damage to public property in Anchorage, the juvenile would be charged with a criminal offense as a juvenile, not as an adult, based on Green v. State. She explained in that Alaska Supreme Court decision, a distinction was made between traffic offenses under Title 28 and criminal offenses under Title 11. CHRIS CHRISTENSEN, general counsel to the Alaska Court System, testified on both SB 269 and SB 270. The Alaska Court System takes no position on either piece of legislation. A fiscal note has been completed for SB 269, but not for SB 270. Approximately three- quarters of the cost of the submitted fiscal note is due to the fact that all existing juvenile records in the specified categories would need to be opened, not just records created after the effective date. The Court System's filing system treats all such records as confidential. A review of all files would be extremely time consuming and expensive but necessary for two reasons. The court handles both delinquency cases and child in need of aid (CHINA) cases. Because of the relationship between a juvenile's CHINA case and delinquency case, there is frequently much CHINA developed information in a delinquency file. This information would need to be separated out before the files could become public. Much of the time, the Court System will not know why information was put in a file, and whether it was CHINA information. If either bill passes, a new system will be created and the cost to do so prospectively would be much less. Second, unlike adult criminal files which typically have a separate file for each arrest, a juvenile's entire delinquent history is usually handled in a single file. It would require substantial clerical effort to review a file and separate out the confidential matters from the public matters. He explained the current procedure used by the Court System when an adult file is requested, which is not computerized. Statewide, courts receive over 3500 written requests per year for adult criminal records outside the city where the court is located. Many more individuals and businesses make requests at the court house. In Anchorage alone, approximately 75 people per day request 500 individual files. The Court System faces a tremendous potential impact if SB 269 is made retroactive. SENATOR TAYLOR asked if the Court System has determined the fiscal impact of the infraction portion of SB 270. MR. CHRISTENSEN replied the fiscal note has not been prepared, but that is one of the areas that will have associated costs. Currently a person charged with a municipal infraction can pay the fine directly to the municipality if the person does not choose to contest the infraction and pays in a timely manner. Approximately one-third of municipal infractions result in courthouse activity. The court system has predicted the largest single class of new municipal citations will be curfew violations and estimates 500 to 1,000 of those violations per year in Anchorage, and approximately 2,000 statewide. SENATOR TAYLOR stated one portion of SB 270 would allow municipalities to use a minor violation statute to impose up to a $300 fine for certain violations, the other portion allows for disclosure of records for juveniles over the age of 13. He asked Mr. Christensen his opinion of utilizing violations as a way of controlling juvenile activities. MR. CHRISTENSEN replied the Supreme Court would take no position on that approach. Number 453 CAM CARLSON, testifying from Fairbanks, stated keeping the names of juvenile delinquents confidential has not deterred delinquent behavior. She believed the best deterrent would be to publish names and pictures on the front page of newspapers statewide. She supported more exposure of juvenile offenders. DIANE WORLEY, Director of the Division of Family and Youth Services (DFYS), testified on SB 269 and SB 270. DFYS will lose up to $8 million if either bill is enacted. SENATOR TAYLOR asked if she could offer recommendations. MS. WORLEY noted DFYS worked closely with Representative Kott on HB 104. They thought they had designed a process whereby federal dollars would not be lost, however in further discussions with the federal government, that process would jeopardize those funds. DFYS is currently meeting with Region 10 officials and other federal officials to obtain a written determination specifying what can and cannot be part of file disclosure. DFYS is also reviewing how other states are addressing this problem. Number 410 SENATOR TAYLOR asked Ms. Worley why Alaska is not losing federal funds at present since Alaska has chosen, as a state, to publically disclose traffic violations, fish and game violations, parks violations, and minor consumption of alcohol and tobacco possession. MS. WORLEY replied federal funding is strictly related to those cases dealt with through DFYS which include both CHINA and juvenile delinquents. Those offenders are not being treated in district court as adults. SENATOR TAYLOR questioned whether it would be simpler to add a provision requiring all juveniles committing misdemeanors to be treated as adults. That would maintain the separate category of the worst felons. MS. WORLEY responded the DFYS strongly believes youth need to be accountable and the community needs to be protected, but also believes an avenue for rehabilitation needs to be available. Keeping juveniles in the juvenile justice system creates a better avenue for that component of the system and by providing rehabilitation, those offenders are less likely to become repeat offenders. Number 393 SENATOR TAYLOR repeated the legislature needs to develop a more rational system for distinguishing between certain juvenile offenses. MS. WORLEY agreed a thoughtful and planned process is necessary and the goal of DFYS. The Governor's Conference on Youth and Justice is looking at prevention efforts, early intervention, and the profile of current offenders. She offered to provide the committee with the funding determination from the federal government when it is received, to be used as a starting point for a workable solution. SENATOR ADAMS moved adoption of the proposed committee substitute (Version G) of SB 289. There being no objection, the motion carried. The committee took public testimony from Fairbanks on CSSB 289. JOHN REGITANO, the Executive Director of the Fairbanks Native Association (FNA), supported the legislation as it addresses concerns of families of runaway children without decreasing child protective provisions, and does not jeopardize existing funding to runaway shelters. AL NEAR concurred with Mr. Regitano's testimony and supported the changes made in the committee substitute. He suggested striking the "just cause" language altogether because he did not believe there is any just cause for keeping a child away from school. He agreed with changing the word "suspect" to "believe" but felt a runaway should be placed in a more secure facility if he/she leaves the semi-secure shelter. GUY PATTERSON agreed with Mr. Near's suggestion that runaways that continue to leave shelters be placed in a more secure facility. As a parent of a runaway, he has seen the system abused by runaways repeatedly. He questioned whether changing the word "suspect" to "believe" would disadvantage the parent in court. He believed a different agency, not the police officer, should do the investigation. FLORENCE LOUCKS, Director of the Family Focus Shelter, felt CSSB 289 addresses parents concerns, the concerns of shelter providers, and the problem of people who harbor runaways. She supported the semi-secure provision, as it does not violate federal regulations regarding restraining adolescents. Number 108 SENATOR TAYLOR asked what will prevent the revolving door problem. MS. LOUCKS responded that this provision places the youth in protective custody, which is not the case at present. SENATOR TAYLOR stated current law allows for a delinquency petition when the minor is refusing care. A record of the minor's absences from a facility could be presented to a judge. MS. LOUCK agreed this provision would provide a paper trail. JUDY SHIFFLER stated her support of CSSB 289 as a parent, teacher and concerned community member. Runaways quickly become wise to the procedures of the social service and justice systems and find easy loopholes. The bill helps protect runaways from their own and other's behavior by requiring early notification of runaways and establishing stiffer and quicker consequences for the child. She agreed increasing consequences are necessary to prevent the revolving door syndrome. MS. CARLSON thanked Senator Frank for his work on CSSB 289 as she has volunteered in this arena for 15 years. She has seen too many families destroyed by governmental interference with families. The state should not be taking custody of children unless it can provide better care and can prove the family to be a major failure. TAPE TWO, SIDE ONE Number 000 SENATOR TAYLOR moved adoption of amendment #1 to CSSB 289 (page 1, line 14 delete "without just cause" and on page 2, line 5 delete "within 12 hours"). SENATOR ADAMS requested the amendments be voted on individually so that the Department of Law can address the "suspect" language. There being no objection to adoption of amendment #1, the motion carried. SENATOR TAYLOR moved adoption of amendment #2 to CSSB 289am (on page 2, line 29 and on page 3, line 3, delete the word "suspect" and insert the word "believe"). SENATOR ADAMS objected and requested testimony from the Department of Law. ANNE CARPENETI, Department of Law, stated the change from "suspect" to "believe" raises the standard and is more commonly used in legal issues. She requested time to review AS 47.17 before taking a position on that change. SENATOR TAYLOR stated that because the bill has two more committee referrals, the Department of Law's position could be provided to either of those committees. SENATOR ADAMS maintained his objection to the adoption of amendment SENATOR TAYLOR withdrew the motion to adopt amendment #2 and announced he would repeat it on Wednesday, after the Department of Law has had the opportunity to review it. SENATOR ADAMS requested a position paper on CSSB 289 am from the Division of Family and Youth Services prior to Wednesday. MS. CARPENETI asked to comment on CSSB 289. She stated this bill brings into Title 11 many of the concepts used often in Title 47. Those concepts are not defined in Title 11 and are difficult for prosecutors to deal with. She agreed with removal of the 12 hour requirement as it would be difficult for the state to prove the custodian knew, or should have known, that the minor was absent, within 12 hours. She stated the best agency to notify about a runaway is the police, rather the Department of Health and Social Services, because the police station is staffed seven days per week. Regarding the affirmative defense, the meaning of "welfare and imminent danger" is not defined in Title 11. She also questioned what would be considered a "reasonable effort" in terms of a person taking in a runaway child in an attempt to help, and whether it is asking too much for that person to determine whether there is immediate space at the Department of Health and Social Services. She asked for the opportunity to work with the sponsor to tighten up the language. SENATOR TAYLOR announced CSSB 289 am would be scheduled on Wednesday, and asked Ms. Carpeneti to have amendments prepared. Regarding SB 269 and SB 270, MS. CARPENETI stated the Department of Law echoes the comments made by Ms. Worley. SENATOR TAYLOR adjourned the meeting at 3:21 p.m.