Legislature(1995 - 1996)

03/13/1996 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                         March 13, 1996                                        
                           1:30 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
 Senator Mike Miller                                                           
 Senator Al Adams                                                              
 Senator Johnny Ellis                                                          
  MEMBERS ABSENT                                                               
  COMMITTEE CALENDAR                                                           
 CS FOR SENATE BILL NO. 159(HES)                                               
 "An Act relating to advance directives for mental health                      
 CS FOR HOUSE BILL NO. 370(JUD)                                                
 "An Act relating to the provision of legal services at public                 
 SENATE BILL NO. 268                                                           
 "An Act relating to release before trial in cases involving                   
 controlled substances."                                                       
  PREVIOUS SENATE COMMITTEE ACTION                                             
 SB 159 - See Senate Health, Education & Social Services minutes               
        dated 2/14/96.                                                         
 HB 370 - No previous Senate committee action.                                 
 SB 268 - No previous Senate committee action.                                 
 WITNESS REGISTER                                                              
 Mary Hughes                                                                   
 Municipality of Anchorage                                                     
 P.O. Box 196650                                                               
 Anchorage, AK  99519-6650                                                     
  POSITION STATEMENT:    Supports SB 268                                       
 Senator Steve Rieger                                                          
 Alaska State Capitol                                                          
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:  Sponsor of SB 159                                       
 Dorothy Peavey                                                                
 Mental Health Consumers of Alaska                                             
 430 W. 7th  #220                                                              
 Anchorage, AK  99501                                                          
  POSITION STATEMENT:  Supports SB 159                                         
 Richard Rainery                                                               
 Alaska Mental Health Board                                                    
 431 N. Franklin #101                                                          
 Juneau, AK  99801                                                             
  POSITION STATEMENT:  Supports SB 159                                         
 Bob Bailey                                                                    
 Anchorage Chamber of Commerce                                                 
 441 W. 5th Ave.                                                               
 Anchorage, AK                                                                 
  POSITION STATEMENT:   Supports SB 268                                        
 Anne Carpeneti                                                                
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK  99811-0300                                                        
  POSITION STATEMENT:    Opposes SB 268                                        
 Mary Vollendorf                                                               
 Legislative Aide                                                              
 Alaska State Capitol                                                          
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:    Testified for sponsor of SB 268                       
 Representative Terry Martin                                                   
 Alaska State Capitol                                                          
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:  Sponsor of HB 370                                       
 John Salemi                                                                   
 Public Defender Agency                                                        
 900 W 5th Ave. Ste. 200                                                       
 Anchorage, AK  99501-2090                                                     
  POSITION STATEMENT:  Opposed to HB  370                                      
 Shirley Warner                                                                
 Anchorage Police Department                                                   
 4501 S. Bragaw St.                                                            
 Anchorage, AK                                                                 
  POSITION STATEMENT:    Supports HB 370                                       
 ACTION NARRATIVE                                                              
 TAPE 96-21, SIDE A                                                            
 Number 001                                                                    
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 2:28 p.m. and began taking testimony while awaiting a                
 quorum.  The first order of business was SB 268.                              
           SB 268 PRETRIAL RELEASE FOR DRUG OFFENSES                          
 MARY HUGHES, representing the Municipality of Anchorage, stated               
 Senator Leman received letters supporting SB 268 from the MOA and             
 Anchorage Police Department.  SB 268 provides a checklist for                 
 conditions to grant bail in drug and alcohol cases.  In Anchorage             
 drug dealers are continually picked up by police but are back                 
 selling drugs in the same location within a period of hours because           
 it is too easy to get out on bail.  Police have re-arrested people            
 before they've gone to trial for the first offense.  The Deputy               
 Attorney General sent out a notice to all criminal division lawyers           
 on January 24, indicating that specific bail conditions were to be            
 requested by the state.  She applauded Ms. Otto's efforts, but the            
 MOA would like those conditions placed in statute to provide                  
 Number 188                                                                    
 SENATOR TAYLOR questioned the constitutionality of requiring a                
 person alleged to have committed an offense to engage in drug                 
 screening and counseling as a condition of bail.                              
 JOHN SALEMI, Alaska Public Defender Agency, agreed constitutional             
 questions may exist.  He commented if a judge were to impose                  
 treatment as a condition of release that would cut against the                
 presumption of innocence.  Second, when a person enters treatment,            
 he/she has to divulge information about drug use, which would be in           
 conflict with the person's right to remain silent or to not give              
 self-incriminating testimony.  He did not believe that changing the           
 bail statute will change the way in which drug trade is carried on            
 in a community.  An area restriction will only force a dealer to              
 move to a different area.  He warned against micro-managing the               
 criminal justice system by making statutory changes and suggested             
 providing judges with training at a judicial conference or                    
 establishing new bail conditions through an administrative                    
 SENATOR TAYLOR announced a quorum was present, and had been for               
 most of the previous testimony.                                               
          SB 159 MENTAL HEALTH TREATMENT DECLARATIONS                         
 SENATOR STEVE RIEGER, sponsor of SB 159, summarized the legislation           
 as follows.  SB 159 provides advance directives for mental health             
 treatment.  Currently patients are entitled to make an informed               
 consent about the type of treatment used for mental illness however           
 when patients undergo treatment they are often not legally                    
 competent to make treatment decisions.  SB 159 creates a structure            
 whereby a potential patient may, in advance, appoint an attorney-             
 in-fact to make the decision on the patient's behalf, or to fill              
 out an advanced directive in writing which states the preferred               
 course of treatment when legally incompetent.                                 
 SENATOR TAYLOR noted his appreciation for the legislation since               
 there are times when people are lucid and capable of making this              
 type of decision yet know the possibility of becoming incompetent             
 in the future exists.                                                         
 SENATOR GREEN announced three of the committee members heard                  
 testimony on SB 159 in the Senate HESS committee.                             
 DOROTHY PEAVEY, representing Mental Health Consumers of Alaska,               
 testified in support of SB 159.  The bill gives more power and                
 authority to mental health consumers in making treatment decisions            
 at a time when they have very little voice or validity.  If the               
 choices a patient makes are inappropriate, medical staff can                  
 consult with the attorney-in-fact.  SB 159 also provides medical              
 staff with a starting point, because often patients arrive with               
 little paperwork or treatment history and people in crisis are not            
 the best historians or in a position to give permission for                   
 medication.  This measure has been endorsed by the Mental Health              
 Board, the Mental Health Directors' Association, Southcentral                 
 Counseling, Alaska Psychologists' Association, Charter North                  
 Hospital, Nursing Home and Hospital Association, the Bridges                  
 Campaign, and the Department of Health and Social Services.                   
 Although SB 159 has a zero fiscal note, it may save money because             
 at present, when a person is admitted to a hospital and refuses               
 medication, the state must go to a forced medication hearing, tying           
 up the time and efforts of a judge, an attorney general, a public             
 defender, and a state psychiatrist.  SB 159 will decrease the need            
 for many of these hearings.                                                   
 SENATOR TAYLOR noted he has met with Dr. Abel who voiced the                  
 Department of Health and Social Services' support for SB 159.                 
 RICHARD RAINERY, Executive Director of the Alaska Mental Health               
 Board, expressed the Board's support for SB 159 and urged the                 
 committee's favorable action.                                                 
 There being no further testimony, Senators Ellis and Green jointly            
 moved CSSB 159(HES) to the next committee of referral with                    
 individual recommendations.  There being no objection, it was so              
           SB 268 PRETRIAL RELEASE FOR DRUG OFFENSES                          
 BOB BAILEY, a member of the Anchorage Chamber of Commerce Board of            
 Directors and Co-Chair of the Chamber's Crime Prevention Board,               
 testified SB 268 is part of the Crime Prevention Board's                      
 legislative package.  Downtown businesses in Anchorage see the                
 result daily of the "catch and release" problem with drug dealers,            
 who are arrested but out on the streets within hours selling drugs            
 again.  SB 268 provides police with a tool to keep drug dealers               
 away from the area where they sell drugs.                                     
 ANNE CARPENETI, representing the Department of Law, discussed DOL's           
 concerns with SB 268.  Although DOL agrees the bail conditions                
 listed in the bill are good, and are routinely asked for along with           
 additional conditions in drug and alcohol cases, it is concerned              
 about embodying conditions in statute as it may imply to the court            
 that only those conditions are to be met.  DOL is also concerned              
 about creating statutory bail conditions for particular offenses.             
 Current bail statutes apply across a broad range of offenses.                 
 Number 306                                                                    
 SENATOR ELLIS asked if DOL is concerned that a person might appeal            
 a conviction, or the conditions of release, based on the fact that            
 an additional condition was not in statute.                                   
 MS. CARPENETI clarified DOL is concerned that if SB 268 passes, a             
 prosecutor might not be able to convince a judge to impose other              
 conditions that are appropriate to a particular case.                         
 SENATOR TAYLOR agreed placing the conditions in statute may limit             
 the judge, but noted there is a high level of frustration with the            
 lack of adequate bail conditions required of this class of                    
 offenders.  Last year the committee heard a bill to prevent a                 
 second time drug offender from being granted bail, but the                    
 constitutional ramifications were significant.                                
 MS. CARPENETI offered to provide committee members with the list of           
 conditions requested in every drug and alcohol bootlegging case,              
 which is more extensive than what is contained in SB 268.  DOL is             
 in the process of working with the court in Anchorage to develop a            
 SENATOR ADAMS suggested adding the other conditions requested by              
 DOL to SB 268.  He questioned whether SB 268 attempts to fix a                
 problem that doesn't exist, and instead ties a judge's hands.                 
 Number 337                                                                    
 SENATOR MILLER asked whether the "catch and release" problem does             
 exist, and asked DOL for alternatives to fix the problem.                     
 MS. CARPENETI replied DOL is working with district court judges on            
 the conditions it is asking for, and is hoping to come to a                   
 resolution and develop forms.  SB 268 does not require any                    
 conditions be imposed, it is discretionary.                                   
 MARY VOLLENDORF, staff to Senator Leman, sponsor of SB 268,                   
 questioned whether a judge has more authority to require conditions           
 if they are set out in statute, as opposed to a policy directive.             
 SENATOR TAYLOR responded there is no weight gained by placing the             
 conditions in statute, and by listing them, the legislature may be            
 excluding some conditions judges would be willing to consider.  The           
 bill may preclude the judge from using a new or unique bail                   
 condition.  He used the analogy of DWI offenses, which carry a one-           
 year prison sentence and $5,000 fine as a maximum penalty.  The               
 minimum mandatory sentence is three days in jail which is what                
 judges usually impose no matter what the conditions.  He echoed               
 DOL's concern that the minimum sentence is an easy pattern for a              
 judge to drop into.                                                           
 SENATOR TAYLOR announced SB 268 would be held in committee for a              
 few days to give Senator Leman's staff and DOL the opportunity to             
 reconsider the legislation.                                                   
       HB 370 LEGAL SERVICES PROVIDED AT PUBLIC EXPENSE                       
 REPRESENTATIVE TERRY MARTIN testified as Chairman of the                      
 Legislative Budget and Audit Committee.  HB 370 is the result of a            
 recommendation by the audit division because eligibility procedures           
 need to be formalized and uniformly applied.  After the legislative           
 audit on the Public Defenders' Agency was completed, the Anchorage            
 Police Department and Alaska State Troopers agreed with the need to           
 unify the eligibility criteria for public defender services.  In              
 the Anchorage area public defenders are sometimes on the scene                
 before the police.  Indigence would be decided by the court at the            
 first court appearance.  Rural areas will not be affected by HB 370           
 because there are very few, if any, private attorneys practicing in           
 those areas, therefore a public defender would be appointed.  If a            
 judge later decides a rural client is not indigent, the client will           
 be required to hire a private attorney.                                       
 REPRESENTATIVE MARTIN mentioned a public defender position is                 
 needed in Bethel and questioned whether a position could be moved             
 from Anchorage.  He believed the bill would decrease the cost of              
 the Public Defender Agency in Anchorage by decreasing its workload.           
 He repeated the need for the court system to decide indigent status           
 rather than the Public Defenders Agency.                                      
 Number 430                                                                    
 SENATOR ADAMS stated that although HB 370 originated with                     
 Legislative Budget and Audit, the motion made by that committee was           
 to address the eligibility screening procedures.  HB  370 extends             
 beyond that and is unconstitutional under art. I, sec. 11, of the             
 Alaska Constitution which provides for the assistance of counsel              
 for a person's defense.                                                       
 REPRESENTATIVE MARTIN replied it has been made clear at hearings              
 that HB 370 is not unconstitutional because a judge determines                
 indigence at the very first court appearance and in those areas               
 where a private attorney is not available, the first defense a                
 person would have is a public defender.  HB 370 does not diminish             
 the ability of the poor to have counsel, it removes the ability of            
 wealthy people to use the public defender's services.                         
 SENATOR TAYLOR commented Senator Adams' concern is that HB 370                
 shifts the time at which a public defender would be appointed.                
 Current law gives a person the right to a public defender upon                
 being detained by an enforcement officer, as the result of a                  
 serious crime.  HB 370 provides for a public defender once a person           
 has been formally charged or committed, as the result of a serious            
 crime.  In Section 3, the same provision occurs, and requires the             
 law enforcement officer's concern upon commencement of detention,             
 which is after a person has been arrested, booked, and placed in a            
 holding cell.  That provision moves the public defender's ability             
 to work on behalf of the defendant by about 24 hours in the average           
 criminal case.                                                                
 Number 484                                                                    
 REPRESENTATIVE MARTIN responded that when a person is detained, it            
 is the police officer's duty to get the person under control.  In             
 urban Alaska, there are night courts, so normally a judge is                  
 available and can determine whether a person is indigent right                
 away.  Sometimes a person may be detained for 8 or 12 hours, until            
 there is an arraignment.  In rural areas the problem is not whether           
 a judge will appoint a public defender, it is whether a public                
 defender is available.  Eliminating public defender positions from            
 Anchorage and placing them in rural areas will alleviate that                 
 problem.  Under Rule 92 it is clear the judge will make the                   
 determination of indigence based on evidence provided.                        
 SENATOR ADAMS said he was willing to work on legislation that                 
 addresses screening procedures but not on the provisions of HB 370            
 that violate the Constitution and Alaska Criminal Rule 5(B) which             
 provides that immediately after arrest the prisoner shall have the            
 right to telephone or otherwise communicate with both an attorney             
 and a relative or a friend.                                                   
 JOHN SALEMI, representing the Public Defenders' Agency, discussed             
 a murder case in Anchorage which was solved through the help of the           
 public defender's office, and resulted in a murder conviction of              
 three people, without a trial.  Had HB 370 been in effect, the                
 Public Defender's Agency would not have been able to provide                  
 services to a key participant in the case, who was indigent and               
 unwilling to cooperate with law enforcement officers, but had not             
 been arrested.  To his knowledge, the Public Defenders' Agency has            
 never represented a millionaire, and HB 370 will not prevent that             
 from happening anyway.  If HB 370 passes, a public defender can               
 only get involved with a suspect or person who wants legal advice             
 if that person has been formally charged and brought to court.  He            
 insisted the Public Defenders' Agency has assisted law enforcement            
 efforts countless times, often before a person is formally charged            
 or arrested.  Over 99 percent of public defender cases come from              
 the court system now, therefore HB 370 will not change the public             
 defenders' agency workload.  In less than one percent of the cases            
 the agency either self-appoints when a person walks into the office           
 for legal advice, or the police contact them, which will be                   
 eliminated by HB 370.  Miranda rights require an attorney be made             
 SENATOR MILLER believed the issue to be at what income level a                
 person can afford a private attorney.  The perception that people             
 who can afford private counsel are receiving public defender                  
 services exists.  If that is true, those people are taking valuable           
 resources from people who cannot afford counsel.  He asked for Mr.            
 Salemi's help in determining at what level of income a client                 
 should be denied services.                                                    
 MR. SALEMI believed two issues are being debated.  The first issue            
 is to determine what the eligibility rules should be, and the only            
 provision in the original bill which addressed that issue required            
 the court to make an eligibility determination on the record.                 
 Testifying before the House Judiciary Committee, Art Snowden stated           
 if those determinations had to be made on the record, the court               
 system would need six or seven more judges, so that provision was             
 deleted.  The problem seems to center on the fact that the court              
 system does not have an adequate screening mechanism in place.  He            
 informed committee members that several state agencies are                    
 currently working with the court system to fine tune eligibility              
 screening issues and a pilot project is being designed.                       
 SENATOR TAYLOR commented that to the extent a person is capable,              
 partial payment should be required for services.                              
 TAPE 96-21, SIDE B                                                            
 Number 000                                                                    
 SHIRLEY WARNER, Anchorage Police Department, testified that six               
 years ago it was brought to her attention by investigative staff              
 that public defenders were appointing themselves as counsel to                
 obstruct interviews with offenders.  Letters were written to                  
 correct the problem, however the problem is ongoing and affects               
 hundreds of cases.  The Public Defenders' Agency calls detectives             
 and orders them not to talk to certain people, some of who are not            
 detained.  She contended that public defender representation in               
 many of these cases is not a wise use of public resources as this             
 service does not support the interest of victims of crime, and                
 hampers law enforcement's duty to do its job.  She stated the APD's           
 support of HB 370 and urged the committee to pass the legislation.            
 REPRESENTATIVE MARTIN asserted the legislature needs to require the           
 court to be the decision maker when appointing counsel, not the               
 public defenders.  In Anchorage the public defenders are in contact           
 with a suspect before the police are even able to get a search                
 warrant signed which interferes with investigations.                          
 SENATOR TAYLOR repeated there are two issues: the screening                   
 procedures used to ensure indigence qualification; and the time of            
 appointment and how appointment for representation occurs.                    
 Currently law enforcement officers can see to the appointment of a            
 public defender, if during questioning, once a person is advised of           
 his/her Miranda rights, the person refuses to provide information             
 without the advice of counsel.                                                
 REPRESENTATIVE MARTIN explained the time for appointment of an                
 attorney would be during arraignment, or the individual could make            
 a phone call to a public defender.  He stressed in a rural area a             
 public defender would automatically be appointed if no private                
 attorneys were in the area, despite a determination of indigence.             
 SENATOR TAYLOR asked how a public defender would be more promptly             
 appointed in a rural area than in an urban area if HB 370 passed.             
 REPRESENTATIVE MARTIN answered in the rural area the public                   
 defender is probably the only attorney available.                             
 SENATOR TAYLOR explained in a rural community, a person being                 
 questioned by the police, but refusing to talk without an attorney            
 present, would not be able to talk to a public defender until                 
 formally charged and given a court appearance, which could be 24              
 hours later, under HB 370.  REPRESENTATIVE MARTIN stated                      
 realistically, in rural areas, judges are not available at all                
 hours of the day and night.                                                   
 SENATOR TAYLOR asked how a police officer could continue to talk              
 with the suspect before an arrest occurs and a public defender is             
 appointed.  REPRESENTATIVE MARTIN replied the police officer would            
 try to get someone available to help that individual.  He did not             
 believe the problem to be in small towns, but in larger cities.               
 SENATOR TAYLOR assured Representative Martin that if a suspect were           
 being questioned in Wrangell tonight, no one would be available to            
 provide counsel to the person since he is the only attorney in                
 town.  REPRESENTATIVE MARTIN asked what the police do in Wrangell             
 now.  SENATOR TAYLOR stated if a person refused to talk after being           
 read his/her Miranda rights, the police officer would call a public           
 defender for representation, but under HB 370, the police officer             
 could not do that until after the person was arrested.                        
 REPRESENTATIVE MARTIN stated the problem is not with police                   
 officers, it is that public defenders are aggressively seeking                
 cases and that judges do not use correct criteria to determine                
 SENATOR TAYLOR encouraged the review of screening criteria but                
 expressed concern about the Miranda right issue and eliminating the           
 law officer's ability to appoint a public defender.  REPRESENTATIVE           
 MARTIN stated the court clearly has that authority.  The law                  
 enforcement officer would take appropriate action to get                      
 representation while the suspect is detained, but the ultimate                
 decision rests with the judge.                                                
 CAPTAIN WARNER informed the committee when the APD is detaining a             
 suspect, and the suspect requests an attorney after being read                
 his/her Miranda rights, the APD gives the person the opportunity to           
 call an attorney.  If the person says he/she cannot afford an                 
 attorney, the interview stops.  The problem lies in the fact that             
 public defenders step in before a suspect or witness is detained,             
 which hampers APDs' ability to investigate.                                   
 Number 440                                                                    
 SENATOR TAYLOR asked Captain Warner if the APD wants line 9 of page           
 2 removed, which removes the officer's opportunity to appoint a               
 public defender.  CAPTAIN WARNER felt the court system was better             
 suited to determine eligibility.  SENATOR TAYLOR stated the final             
 determination would not rest with police officers, but indigence              
 guidelines would have to be provided and the client would have to             
 take a sworn oath.  The police officer would appoint the public               
 defender but the court would review that appointment.                         
 CAPTAIN WARNER assumed the full screening process for eligibility             
 was under AS 18.85.100.  SENATOR TAYLOR explained it is, but HB 370           
 would amend that section.  CAPTAIN WARNER responded she had no                
 objection to giving law enforcement officers the ability to contact           
 the public defenders' office to help with a suspect.                          
 Number 402                                                                    
 SENATOR TAYLOR announced the committee could take no further                  
 testimony at this time, due to other schedule commitments, but                
 would reschedule HB 370 for further testimony in the near future.             
 SENATOR ADAMS asked Mr. Salemi to send the committee information on           
 eligibility criteria procedures.  He also requested a legal opinion           
 on any conflict with Article I, Section 2 of the Alaska                       
 Constitution and Alaska Criminal Rule 5(B).                                   
 SENATOR TAYLOR agreed to obtain the legal opinion.                            
 SENATOR ADAMS asked Representative Martin if he would support the             
 Governor's budget numbers for the Court System, Department of                 
 Public Safety, and Department of Corrections since their workloads            
 would be increased if HB 370 passes.                                          
 REPRESENTATIVE MARTIN replied HB 370 was introduced to provide a              
 tool for public protection and to correct a misuse of office by               
 decreasing the aggressive approach used by the public defenders'              
 SENATOR ADAMS again asked Representative Martin if he would support           
 the Governor's budget numbers for those offices to protect the                
 REPRESENTATIVE MARTIN noted HB 370 does go beyond what was intended           
 by the Legislative Budget and Audit Committee, because other                  
 stories and information came up during the process indicating                 
 additional issues needed to be addressed.                                     
 SENATOR MILLER commented the Court System is working on this issue            
 and a bill is working its way through the committee process that              
 allows the Court System to get income information from the                    
 Employment Security Division.                                                 
 SENATOR TAYLOR announced HB 370 would be heard at the next                    
 committee hearing and adjourned the meeting at 3:37 p.m.                      

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