Legislature(1997 - 1998)

04/09/1997 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   SENATE JUDICIARY COMMITTEE                                  
                         April 9, 1997                                         
                           1:30 p.m.                                           
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Robin Taylor, Chair                                                   
 Senator Drue Pearce, Vice-chair                                               
 Senator Mike Miller                                                           
 Senator Sean Parnell                                                          
 Senator Johnny Ellis                                                          
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 None                                                                          
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 CS FOR HOUSE BILL NO. 9(FIN) am                                               
 "An Act relating to the rights of crime victims and victims of                
 juvenile offenses; relating to the collection by victims of                   
 restitution from prisoners; relating to the definition of                     
 `incapacitated' for sexual offenses; creating the crime of                    
 interfering with a report of a crime involving domestic violence;             
 relating to mental examinations of victims in criminal                        
 prosecutions; relating to the safety of victims, other persons, and           
 the community in setting bail or conditions of release; relating to           
 access to certain records of the Violent Crimes Compensation Board;           
 amending Rule 6, Alaska Rules of Criminal Procedure, Rules 404 and            
 615, Alaska Rules of Evidence, and Rule 3, Alaska Delinquency                 
 Rules; and providing for an effective date."                                  
                                                                               
  MOVED CSHB 9(JUD) OUT OF COMMITTEE WITH INDIVIDUAL                           
  RECOMMENDATIONS                                                              
                                                                               
 CS FOR SENATE BILL NO. 119(L&C)                                               
 "An Act relating to fraternal benefit societies; and providing for            
 an effective date."                                                           
                                                                               
  MOVED CSSB 119 (L&C) OUT OF COMMITTEE WITH INDIVIDUAL                        
  RECOMMENDATIONS                                                              
                                                                               
 SENATE BILL NO. 101                                                           
 "An Act relating to the adoption, amendment, repeal, legislative              
 review, and judicial review of regulations; and amending Rule 202,            
 Alaska Rules of Appellate Procedure."                                         
                                                                               
  HEARD AND HELD                                                               
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
 HB 9 - No previous Senate committee action.                                   
 SB 119 - See Labor and Commerce Committee minutes dated 3/13/97.              
                                                                               
 SB 101 - No previous Senate committee action.                                 
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 Jim Sourant                                                                   
 Legislative Aide to Rep. Porter                                               
 Alaska State Legislature                                                      
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:   Testified for sponsor of HB 9.                         
                                                                               
 Anne Carpeneti                                                                
 Assistant Attorney General                                                    
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
  POSITION STATEMENT:   Provided a sectional analysis on HB 9.                 
                                                                               
 Paul Sweet                                                                    
 P.O. Box 1562                                                                 
 Palmer, AK  99645                                                             
  POSITION STATEMENT:  Asked questions about HB 9.                             
                                                                               
 Robert Buttcane                                                               
 Youth Corrections - DFYS                                                      
 Department of Health & Social Services                                        
 P.O. Box 110630                                                               
 Juneau, AK  99811-6300                                                        
  POSITION STATEMENT:   Supports HB 9.                                         
                                                                               
 Jayne Andreen                                                                 
 Council on Domestic Violence & Sexual Assault                                 
 Department of Public Safety                                                   
 P.O. Box 111200                                                               
 Juneau, AK  99811-1200                                                        
  POSITION STATEMENT:   Supports HB 9.                                         
                                                                               
 Barbara Brink                                                                 
 Public Defender Agency                                                        
 Department of Administration                                                  
 900 W 5th Ave., Suite 200                                                     
 Anchorage, AK  99501-2090                                                     
  POSITION STATEMENT:   Commented on HB 9.                                     
                                                                               
 Janice Lienhart                                                               
 Anchorage, AK                                                                 
  POSITION STATEMENT:   Supports HB 9.                                         
                                                                               
 Linda Thomas                                                                  
 Rex Lamont Butler Law Firm                                                    
 Anchorage, AK                                                                 
  POSITION STATEMENT:   Opposed to HB 9.                                       
                                                                               
 Connie Tromble                                                                
 Bethel, AK                                                                    
  POSITION STATEMENT:  Supports HB 9.                                          
                                                                               
 Charlie Miller                                                                
 National Fraternal Congress of America                                        
 P.O. Box 102286                                                               
 Anchorage, AK  99510                                                          
  POSITION STATEMENT:   Testified in support of SB 119.                        
                                                                               
 Marianne K. Burke                                                             
 Division of Insurance                                                         
 Dept. of Commerce & Economic Development                                      
 P.O. Box 110805                                                               
 Juneau, AK  99811-0805                                                        
  POSITION STATEMENT:   Commented on SB 119.                                   
                                                                               
 John Lindback                                                                 
 Chief of Staff                                                                
 Office of the Lieutenant Governor                                             
 P.O. Box 110015                                                               
 Juneau, AK  99811-0015                                                        
  POSITION STATEMENT:   Commented on the regulatory process.                   
                                                                               
 Deborah Behr                                                                  
 Assistant Attorney General                                                    
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK  99801                                                             
  POSITION STATEMENT:   Provided an analysis of SB 101.                        
                                                                               
 Senator Dave Donley                                                           
 Alaska State Legislature                                                      
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:   Sponsor of SB 101.                                     
                                                                               
 Jack Kreinheder                                                               
 Office of Management & Budget                                                 
 Office of the Governor                                                        
 P.O. Box 110200                                                               
 Juneau, AK  99811-0020                                                        
  POSITION STATEMENT:   Testified on the fiscal notes for SB 101.              
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
 TAPE 97-26, SIDE                                                              
 Number 00                                                                     
                                                                               
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 1:42 p.m. and acknowledged the presence of Senators Miller           
 and Parnell.  The first order before the committee was HB 9.                  
         HB   9 VICTIM'S RIGHT TO BE PRESENT AT TRIAL                         
                                                                              
  JIM SOURANT , legislative assistant to Representative Porter,                
 sponsor of the measure, and  ANNE CARPENETI , Assistant Attorney              
 General, Department of Law (DOL) took the witness stand.  Mr.                 
 Sourant noted Janice Lienhart, the recipient of the National Crime            
 Victim Service Award, was available to testify from Anchorage via             
 teleconference and commented on her outstanding service in the area           
 of crime victims' rights in the State of Alaska.  He then explained           
 HB 9 is the statutory realization of a constitutional amendment               
 adopted two years ago.  Article 1, Section 24, of that amendment              
 contains a list of the rights of crime victims to ensure that those           
 rights are elevated to at least that of criminal defendants.  The             
 part of HB 9 that is most relevant to the constitutional amendment            
 is the idea that crime victims have the right to be in the                    
 courtroom at all times that the criminal defendant, or juvenile if            
 a juvenile proceeding, has the right to be in the courtroom -                 
 notwithstanding the fact that the victim may be later called upon             
 as a witness.  Sections 1 and 2 modify Alaska Evidence Rule 615,              
 the exclusionary rule, and recognize the right of a crime victim to           
 be in a courtroom at any time the criminal defendant is present.              
 The State of New Hampshire has modified its equivalent of Alaska              
 Evidence Rule 615 without a constitutional amendment.  That                   
 modification was upheld by the New Hampshire Supreme Court.   In              
 March, 1997 Congress enacted the Victims' Rights Clarification Act            
 of 1997.  That bill is consistent with HB 9 regarding a victim's              
 right to be present in the courtroom, and is retroactive so that              
 the victims of the Oklahoma City bombing can be present during that           
 trial.  He asked Ms. Carpeneti to comment on the other substantive            
 provisions of HB 9.                                                           
                                                                               
 Number 105                                                                    
                                                                               
  MS. CARPENETI  commented that prior testimony in other committees on         
 modification of the exclusionary rule has revealed concern about              
 the possibility that the victim's testimony might be tainted after            
 listening to other witness' testimony.  She noted the victim's                
 story has been previously recorded in several ways; by a                      
 description of events to police officers and in Grand Jury                    
 testimony so that it is on record before he/she testifies at a                
 trial.  The precaution against tainting testimony is not very                 
 strong in relation to constitutional requirement.                             
                                                                               
  MS. CARPENETI  gave the following sectional analysis of the                  
 remainder of HB 9.  Sections 3 through 6 deal with exemptions upon            
 levy for assets that provide that a person's liquid assets and                
 wages are free from being levied by creditors.  Those sections                
 exempt victims who have an order for restitution so that the levy             
 can occur to fulfill restitution obligations.                                 
                                                                               
 Section 7 makes a minor change in the definition of "incapacitated"           
 in sexual assault statutes.  To establish that the victim was                 
 incapacitated will require proof that the victim was unable to                
 appraise the nature of the act or was physically unable to express            
 unwillingness.  Ms. Carpeneti thought that it should be clear that            
 the State has to prove one or the other, but not both.                        
                                                                               
 Section 8 creates a class A misdemeanor for interfering with the              
 report of the crime of domestic violence.  Often, in domestic                 
 violence cases, a phone is pulled out of the wall to prevent the              
 victim from calling police.  That action escalates the danger of              
 the situation and makes the victim unable to communicate with                 
 anyone who might help.                                                        
                                                                               
 Sections 9 through 12 bring Alaska's bail statutes into line with             
 current court practice and constitutional requirements.  Judges are           
 now considering the safety of the victims when ordering bail or               
 setting conditions of release.                                                
                                                                               
 Section 13 limits the situations where the court can order a mental           
 examination of the victim at the request of the defendant.  Mental            
 examinations of victims should be ordered in very rare                        
 circumstances because it is such an invasion of one's dignity.                
 Last year the Legislature passed laws which limited the ability of            
 representatives of the defense team to contact the victim.  DOL's             
 Special Prosecutions Office attorneys thought about situations in             
 which a victim's mental examination might be relevant and those               
 situations are excepted, otherwise Section 13 provides that a                 
 psychiatric examination should not be ordered.                                
                                                                               
 Section 4 amends the three-judge panel statute.  In Alaska's                  
 sentencing laws, a three-judge panel is available to a defendant or           
 the State if, in certain circumstances, the presumptive sentence              
 does not fit the particular case.  The three-judge panel has more             
 power than a sentencing court when a presumptive sentence is                  
 required by statute.  Section 4 provides that if the panel                    
 supplements the record by taking testimony from the defendant, the            
 victim may also testify.                                                      
                                                                               
 Section 15 amends the section dealing with crime victims' rights              
 and brings notice requirements from other titles into Title 12 so             
 that most of the rights to notice are located in one title.                   
                                                                               
 Section 16 provides that an application for compensation from the             
 Violent Crimes Compensation Board (VCCB) and supporting data is               
 confidential.  That is the current practice but sometimes the Board           
 has to defend a subpoena or request and has asked that the statute            
 clarify that the information is not public.                                   
                                                                               
 Section 17 deals with the right to be present at trial.  Section 18           
 provides that a victim may testify telephonically before a Grand              
 Jury under the same circumstances that other witnesses are allowed            
 to testify telephonically.                                                    
                                                                               
 Section 19 amends the rules of evidence to allow the use of                   
 evidence of prior acts of domestic violence in the prosecution of             
 a case.  The reason for this change is that frequently domestic               
 violence cases are prosecuted without a witness to the offense.               
 The victim may have recanted or refused to cooperate out of fear,             
 or for many other reasons.  More often, the police officer who was            
 at the scene testifies to what occurred.                                      
                                                                               
 Ms. Carpeneti concluded the sectional analysis by saying the                  
 remaining provisions deal with the exclusionary rule of witnesses             
 as they relate to victims.                                                    
                                                                               
  MS. CARPENETI  stated DOL has suggested an amendment to                      
 Representative Porter who agrees to it if the committee will                  
 consider it at this point.  The amendment provides specifically               
 that in a case where an indictment is dismissed by the Trial Court            
 and the State intends to, or does, appeal the dismissal, that the             
 release of the defendant be according to the rules of pre-trial               
 release.  Recently an order by the Supreme Court unconditionally              
 released a defendant after an indictment had been dismissed by the            
 Superior Court and the State appealed the dismissal with the Court            
 of Appeals.  This same procedure using pre-trial release rules is             
 used by the federal court system.                                             
                                                                               
 Number 245                                                                    
                                                                               
  SENATOR PARNELL  noted Section 19, regarding admissibility of                
 evidence in domestic violence cases, amends Evidence Rule 404.  He            
 asked whether evidence of prior crimes is admissible in any other             
 circumstances.                                                                
                                                                               
  MS. CARPENETI  said there are other circumstances where prior bad            
 acts are admissible to establish the State's case, for example                
 sexual abuse of a minor under certain circumstances. The general              
 rule is one cannot use prior bad acts to establish propensity to              
 prove the person acted in accordance with how he/she behaved in the           
 past, but there are a number of exceptions.                                   
                                                                               
  SENATOR PARNELL  asked if this evidence would be used to prove one's         
 guilt at this time, and whether it could be used to secure                    
 applications for restraining orders.  He questioned whether it                
 applies strictly to convictions of crimes involving domestic                  
 violence.                                                                     
                                                                               
  MS. CARPENETI  answered the State would have to make a preliminary           
 showing to the Court that the information was still relevant; the             
 evidence could not automatically be introduced.                               
                                                                               
  SENATOR PARNELL  asked if, in the area of sexual abuse, and evidence         
 of sexual abuse, is the wording in 404 evidence of sexual abuse or            
 is it evidence of conviction.  MS. CARPENETI thought it was                   
 evidence of prior bad acts.                                                   
                                                                               
  SENATOR PARNELL  questioned whether a court order can override               
 Section 16, regarding the confidentiality of records before the               
 VCCB.  MS. CARPENETI   answered that provision was added to the bill          
 because records have been subpoenaed and the State has to litigate.           
 She thought under certain circumstances one could ask the court               
 because there might be reasons unrelated to this specific issue,              
 but generally, the records should be kept confidential.                       
                                                                               
  SENATOR PARNELL  asked about the current problem.  MS. CARPENETI             
 said people are asking for subpoenas and DOL has to fight the                 
 request.  DOL has won every time so far.   SENATOR PARNELL  asked if          
 the intent of the sponsor is that a court order could override this           
 provision in certain circumstances.  MS. CARPENETI said she would             
 have to know what circumstances because the provision is clear the            
 records are confidential.                                                     
                                                                               
  SENATOR PARNELL  asked why, as a policy matter, we would want to             
 never allow those records to be reviewed.  MS. CARPENETI replied              
 the applications contain medical records and personal information             
 from victims.                                                                 
                                                                               
  SENATOR PARNELL  asked if there is ever a time when the State ends           
 up in a civil proceeding between the two and the evidence is                  
 necessary for impeachment purposes for the victim.  MS. CARPENETI             
  stated she is not familiar with any such situations, and does not            
 believe any have arisen.   SENATOR PARNELL  clarified he understands          
 the importance of protecting the information, but is trying to                
 understand the intent with respect to the scope of the protection.            
  MS. CARPENETI  answered the intent is to avoid litigating every time         
 someone asks for the records.  When people ask for a subpoena, DOL            
 opposes the motion and has prevailed, but DOL wants to avoid                  
 litigating every time someone wants to get the records.  She agreed           
 this provision would supersede the court's decision.                          
                                                                               
 Number 326                                                                    
                                                                               
  PAUL SWEET  testified via teleconference from Mat-Su in opposition           
 to HB 9.  He asked whether a victim will be able to testify at an             
 appeals case in which the defense is arguing that the sentence was            
 too stiff.     MS. CARPENETI  clarified when a person appeals a               
 sentence, the Court of Appeals makes the decision based on the                
 record before it; it does not take more testimony from anyone.                
 Both the State and the defendant present their respective                     
 positions.  In such cases, the State designates, as part of the               
 record on appeal, any statement that the victim has made in terms             
 of the sentence given to the Court prior to the presentence report            
 so the victim's point of view regarding the appropriate sentence is           
 on the record in every case.                                                  
                                                                               
 CHAIRMAN TAYLOR  added the Appellate Court should be able to do one           
 of three things:  either affirm the sentence handed down by the               
 judge, reduce the sentence, or increase it.  If an increase was a             
 possibility, many specious appeals would not occur.   MR. SWEET               
 commented that every time the perpetrator has a right to appeal,              
 the victim should have the same right.                                        
                                                                               
 Number 364                                                                    
                                                                               
  CONNIE TROMBLE  testified via teleconference from Bethel and noted           
 her support for HB 9.                                                         
                                                                               
  JANICE LIENHART  testified via teleconference from Anchorage in              
 support of HB 9 and made the following remarks.  The intent of the            
 constitutional amendment is to allow victims to attend all hearings           
 that the defendant can attend because the victim is kept from so              
 much information from the first point of prosecution:  the police             
 cannot give any information until the trial.  When a victim is not            
 allowed to attend the hearing, he/she does not get answers or                 
 closure.  She believes victims will be as honest as they can                  
 because they want to see justice served.  HB 9 will put teeth in              
 the constitutional amendment and positively impact families who now           
 have to live through the nightmare of having no information about             
 the criminal justice process and are unable to participate.  She              
 noted she has been trying to help a woman in Texas who witnessed              
 the murder of her daughter.  Because this woman was a witness she             
 is not allowed to attend the trial which is very difficult for her.           
                                                                               
 Number 392                                                                    
                                                                               
  LINDA THOMAS , an attorney with Rex Lamont Butler & Associates in            
 Anchorage, testified in opposition to the provisions that eliminate           
 the exclusionary rule.  One of the most important tools to protect            
 innocent persons wrongfully accused from being wrongfully convicted           
 is the tool of cross-examination: it is fundamental to a                      
 defendant's Sixth Amendment right to confront witnesses, and to               
 effective assistance of counsel.  This is especially true in sexual           
 assault and domestic violence cases where the primary evidence is             
 the complainant's identification or an accuser's testimony and the            
 only defense may be impeachment through cross-examination.                    
 Elimination of the exclusionary rule will weaken that tool and it             
 eviscerates fundamental constitutional rights designed to protect             
 those accused of crimes.  For whatever reason, we know that there             
 are some people who falsely accuse others, sometimes when                     
 relationships are ending they use it as a means to seek financial             
 leverage or power in a custody dispute, or maybe out of revenge to            
 a lover or even as an alibi for their own sexual conduct, for                 
 example sometimes in teenagers' unwanted pregnancies.  If a false             
 accuser is allowed to stay in the courtroom, he or she is given an            
 opportunity to hear all other testimony and they can clean up any             
 inconsistencies in their testimony which might have been revealed             
 on cross examination.  If a false accuser is permitted in a                   
 courtroom, they get an opportunity to dot their i's and cross the             
 t's on all their lies.  According to Linda Farenstein [ph], former            
 New York District Attorney and director of Manhattan's Sex Crimes             
 Prosecution Unit, who for 20 years put sex offenders away, found              
 that 60 percent of child sex abuse allegations against men were               
 false and 50 percent of all rape allegations were false.  The final           
 analysis of a United States Air Force study in 1985 found 60                  
 percent of the original rape claims to be false.  In two reports in           
 Canada, 50 percent of child sex abuse allegations were found to be            
 false with the figure climbing to 70 percent when a custody fight             
 was raging.  With regard to how this plays out in sexual assault              
 cases and domestic violence cases in Alaska, we are finding that if           
 a complainant makes a false allegation of sexual assault, and later           
 tries to recant, many prosecutors are not permitting the                      
 recantation, instead, in a rather neo-paternalistic way, they hire            
 expert witnesses to testify that the recantation is evidence of a             
 cycle of abuse.  There is an underlying premise that men abuse                
 women unless proven otherwise.  The obvious conclusion is that the            
 State does not believe there is any such thing as a false                     
 allegation, yet for eight consecutive years since 1989, the FBI,              
 through DNA testing, found that 25 percent of the sexual assault              
 cases ready to go to trial were based on false accusations.  In a             
 research report by the Department of Justice, called Convicted by            
 Juries, Exonerated by Science, 28 cases were studied, where men              
 were later exonerated by DNA test results.  Most had been convicted           
 based primarily on victim identification.  In the first case a                
 woman was seeking an alibi for her teenage pregnancy.  These men,             
 convicted on false accusations, faced sentences ranging from eight            
 years to the death penalty and served an average of 12 years in               
 jail.   Every man is vulnerable to false accusations and if it                
 happens in this State, the defendant needs to defend against the              
 State's theories of domestic violence and recantation, against its            
 resources, and will have to rely on the cross examination of a                
 complainant.  If HB 9 passes, it will permit the accuser to hear              
 all of the testimony.  She urged the committee not to eliminate the           
 exclusionary rule, and to keep the hysteria in check.                         
                                                                               
 Number 457                                                                    
                                                                               
  ROBERT BUTTCANE , Division of Family and Youth Services (DFYS),              
 Department of Health and Social Services, testified in favor of HB
 9, and specifically to Section 17.  DFYS has found that allowing              
 victims greater access to the juvenile justice system has been a              
 very effective rehabilitative tool.                                           
                                                                               
  JAYNE ANDREEN , Director of the Council on Domestic Violence and             
 Sexual Assault (CDVSA), testified in support of HB 9.  In response            
 to Senator Parnell's questions about the Violent Crimes                       
 Compensation Board, she noted it is her understanding that the                
 records obtained by VCCB as part of the compensation process are              
 protected under federal guidelines in the Victims' of Crime Act.              
 Section 16 brings Alaska statute into compliance with that Act and            
 will reduce the number of subpoenas that the VCCB and DOL have to             
 deal with.                                                                    
                                                                               
 Number 471                                                                    
                                                                               
  SENATOR PEARCE  asked Ms. Andreen to respond to Ms. Thomas'                  
 testimony.                                                                    
                                                                               
  MS. ANDREEN  said she was not aware of all of the studies Ms. Thomas         
 cited, however she is aware of the U.S. Air Force report which                
 determined that 65 percent of sexual assault victims lie or make              
 false accusations.  That report was based on a checklist used to              
 determine the victim's credibility and looked at their social                 
 backgrounds, economic status and employment histories.  Ms. Andreen           
 noted as a former victim of sexual assault, she took the test which           
 determined she was lying.  Consequently, she does not place any               
 value in that report, whatsoever.  In addition, FBI data continues            
 to show that sexual assault reports do not have a higher false                
 reporting rate than any other violent crime.                                  
                                                                               
 Number 484                                                                    
                                                                               
  CHAIRMAN TAYLOR  advised that DHSS has distributed consistent                
 reports concerning allegations of child sexual abuse or physical              
 abuse, and continued reports from the Bar Association and others              
 that deal with family law matters, show the extensive use of false            
 accusations as a leverage tool in divorce actions.                            
                                                                               
  MS. ANDREEN  responded that in her 11 years as a victim service              
 advocate and service provider she is aware of those concerns, but             
 has found that in dealing with child sexual abuse cases and the               
 mothers of the children, more often than not the advocates file               
 reports rather than the mothers.  She noted she is aware of a small           
 number of cases in which the service provider felt the mother was             
 overreacting.                                                                 
                                                                               
   Number 493                                                                  
                                                                               
  BARBARA BRINK , Acting Director of the Public Defender Agency,               
 stated that no victims' rights are truly enhanced when the fact-              
 finding process is made less accurate.  She expressed concern that            
 some of the provisions in HB 9, particularly Section 13 which bans            
 psychiatric evaluations and the provision that allows the victim's            
 presence at all stages of the proceeding, will affect the jury's              
 ability to get the information it needs to assess a case in a fair            
 manner.  The exclusionary rule simply says the judge may exclude a            
 victim who also witnessed the events to ensure that victim's                  
 testimony is preserved as accurately as possible.  For many victims           
 the exclusionary rule does not apply.  Victims can attend every               
 part of the proceeding as long as they were not attendant at the              
 event that the jury is trying to put back together after the fact.            
 Second, a victim's role in a case is different than other parties'.           
 The State is a party because it can obtain a conviction and is                
 responsible for enforcing society's mores.  It has something to               
 gain or lose.  The defendant is a party because the individual's              
 liberty is at stake.  Although the victim has an interest and the             
 desire to understand what is going on, and a desire to not have               
 things happen in secrecy, the victim is not a stakeholder because             
 he/she does not have something to lose such as life or liberty.               
 The fact that the victim is a witness is more important than                  
 his/her role as a victim.  The fact that they observed and                    
 perceived, and have the ability to recall what happened, is their             
 most important role.  The exclusionary rule allows a judge to                 
 preserve that as truthfully as possible.                                      
                                                                               
 Ms. Brink said unlike Ms. Thomas who is concerned about people who            
 create false allegations and give false testimony, she is concerned           
 about those witnesses who have no axe to grind, who are simply                
 there to testify and tell the truth.  The ability to hear what                
 other witnesses say about what happened affects them in a very                
 subconscious and difficult to ascertain fashion.  The human brain             
 is not like a videotape or audiotape, it does not record things 100           
 percent, so the legal system tries to preserve recollections and              
 not taint them.  Even though witnesses have given statements in the           
 past, and might have testified in front of a Grand Jury, that is              
 not what the jury is listening to; the jury is trying to assess how           
 accurate the witness' memory is based on their testimony.  Ms.                
 Brink repeated she is concerned about those witnesses who are                 
 honestly trying their best to recall events accurately and does not           
 believe another hurdle should be thrown in their path.  It will               
 give the jury another piece of the puzzle to assess: how much of              
 the testimony is because of what the victim heard other witnesses             
 say.  She discussed a recent Scientific American television program           
 on human memory which compared verbal accounts of an event before             
 and after seeing a photograph.  The accounts, after seeing the                
 photograph changed substantially and demonstrated that every                  
 person's memory was impacted by what was seen in the photograph.              
 That is why police interview people who witnessed an accident                 
 individually.  The exclusionary rule is simply a tool that                    
 recognizes how the brain works and applies that knowledge in the              
 courtroom setting.                                                            
                                                                               
 Ms. Brink disagreed with previous testimony about the new federal             
 rule and how it applies to the Oklahoma City bombing case.  The new           
 rule only refers to witnesses who are going to testify at the                 
 penalty phase; it does not give the green light to those witnesses            
 who are trying to put the events together.  She urged the committee           
 to not adopt the change to the exclusionary provision and added               
 that a prosecutor can eliminate the whole problem by calling a                
 witness to testify first in the proceeding.                                   
                                                                               
 Ms. Brink discussed the psychiatric evaluation prohibition in                 
 Section 13 and agreed 100 percent with Ms. Carpeneti that                     
 psychiatric evaluations of victims should only be done in the                 
 rarest of circumstances, as is current practice.  Right now, as a             
 criminal defense lawyer, in order to get a psychiatric evaluation             
 she must prove to the judge two things: first that the victim, who            
 is claiming the event happened, has a definite psychological or               
 psychiatric condition that is directly related to his/her ability             
 to tell the truth, and second that the victim's testimony is not              
 corroborated by anything or is otherwise untrustworthy.  It is only           
 in the rarest of rare circumstances that such an examination is               
 allowed.  Even the Court of Appeals has stated it is not going to             
 let anyone abuse this process.  Everyone has to meet that very                
 difficult standard to prove the examination will yield relevant               
 evidence and not harass the victim.  She recounted the following              
 case.  A man was accused of sexual assault and admitted that he had           
 engaged in the alleged sexual conduct which he thought was                    
 consensual.  The victim, who said it was forced, had a psychiatric            
 history.  She was psychotic and when she did not take medication,             
 heard voices and said she was directed to do things by people who             
 did not exist.  Her ability to recall and perceive the events in              
 question was very suspect.  She had made false accusations of                 
 people in the past, including a Supreme Court Justice.  Under this            
 rule, the jury will not hear any of that and will have to decide              
 whether the accusation is true without knowing what the accuser's             
 true state of memory is.                                                      
                                                                               
 Number 562                                                                    
                                                                               
  SENATOR PARNELL  asked how often a mental examination of the victim          
 is requested by the defense in a sexual assault case.   MS. BRINK             
 said in her nine years of trying cases, she has requested two                 
 examinations and was denied both times.  She said she was aware of            
 a request granted in a Fairbanks case and in the case she just                
 described.                                                                    
                                                                               
  CHAIRMAN TAYLOR  asked if AS 11.41 is the rape statute.   MS. BRINK          
 replied AS 11.41.400 pertains to sexual assault; AS 11.41 covers              
 all crimes against people.                                                    
                                                                               
  CHAIRMAN TAYLOR  stated he would entertain a motion to delete                
 Section 13 regarding mental examinations.   SENATOR PARNELL  made the         
 motion.  There being no objection, Section 13 was deleted.                    
                                                                               
 Number 587                                                                    
                                                                               
  CHAIRMAN TAYLOR  informed committee members there is a second                
 amendment in committee members' packets, submitted by the sponsor,            
 which pertains to release pending appeal, as explained by Ms.                 
 Carpeneti.  There being no objection to the adoption of amendment             
                                                                               
  SENATOR ELLIS  asked for further elaboration on the change to the            
 exclusionary rule.   CHAIRMAN TAYLOR  noted he is concerned about             
 changing it and requested research on the subject which revealed              
 nothing new.  He said if an attorney has a weak witness, and a                
 whole battery of strong witnesses, the attorney can put the strong            
 witnesses on first and by the time the weak witness has watched               
 them testify, he/she "learns the ropes" and becomes stronger.  If             
 the witness is not allowed to watch others testify, his/her                   
 strength on the witness stand will not change.                                
                                                                               
 TAPE 97-27, SIDE B                                                            
                                                                               
  SENATOR ELLIS  asked if there is any reasonable way to find a middle         
 ground to the exclusionary rule change or whether it is an all or             
 nothing consideration.   MS. CARPENETI  responded it is unusual to            
 even be discussing the exclusionary rule because the constitutional           
 amendment on victims' rights that was adopted by a large percentage           
 of the population mandates what HB 9 does.   CHAIRMAN TAYLOR  added           
 that the public was sold the victims' rights amendment to the                 
 Constitution without much, if any, discussion or debate about the             
 exclusionary rule.   Discussion centered around victims' rights to            
 restitution and to be informed, etc.  He supported the amendment              
 but after recently rereading it, he was surprised to find the                 
 number of aspects of victims' rights that were never discussed.  He           
 said he believes this aspect of the exclusionary rule has already             
 been run roughshod by that vote, and at this point it is up to the            
 Supreme Court to decide whether they are going to provide for that            
 aspect of human nature that we all know to exist.                             
                                                                               
  MS. CARPENETI  noted that although litigation may occur regarding            
 the defendant's right to a fair trial, the Constitution now                   
 specifically provides that the victim has the right to be present.            
  CHAIRMAN TAYLOR  concluded he does not believe there is a way to             
 find a middle ground at this point because the Constitution has               
 already been amended.                                                         
                                                                               
  SENATOR PARNELL  moved CSHB 9 (JUD) from committee with individual           
 recommendations.  There being no objection, the motion carried.               
 At 2:32 p.m.  CHAIRMAN TAYLOR  announced the committee would recess           
 to a call of the Chair, at which time it would take up SB 119 and             
 SB 101.                                                                       
                                                                               
 TAPE 97-28, SIDE A                                                            
 Number 00                                                                     
              SB 119 FRATERNAL BENEFIT SOCIETIES                              
                                                                              
  CHAIRMAN TAYLOR  called the meeting back to order at 4:15 p.m. on            
 April 10, 1997.  Present were Senators Taylor, Miller and Pearce.             
 The first order of business before the committee was CSSB 119.                
                                                                               
  CHARLIE MILLER , representing the National Fraternal Congress of             
 America, stated he was testifying for Richard Klevens.  The                   
 National Fraternal Congress of America represents fraternal benefit           
 societies that are charitable in nature, usually organized around             
 common ethnic, vocational or religious groups.  Among many                    
 functions, these organizations also offer insurance plans to                  
 members.  Several groups are not domiciled in Alaska, but are                 
 admitted to write insurance; the Independent Order of Foresters,              
 Knights of Columbus, Sons of Norway, etc.  Chapter 84 of Title 21             
 is the affected statute in the insurance code and was based on a              
 model act enacted in 1966.  It has been modified over the years but           
 is still not up-to-date regarding the needs of consumers and                  
 insurance writers.   Provisions of current law conflict with                  
 administrative laws produced outside of the State government and SB
 119 addresses those differences.  A few examples are irrevocable              
 beneficiaries, privilege to assign insurance to another owner, and            
 purchase insurance on a third party basis which are all common                
 transactions in estate planning and income tax planning.  The model           
 act before the committee does not expand the market.  The most                
 important provision, from the Fraternal's point of view, is that              
 the Fraternals can form subsidiaries and non-profit institutions to           
 carry out charitable, benevolent purposes.  The irrevocable                   
 beneficiary designations and absolute assignments in the insurance            
 certificates will allow members to use their insurance for estate             
 planning needs.  The Fraternals set up separate accounts and issue            
 variable insurance products to members upon approval of the                   
 director of the Division of Insurance in keeping with FCC                     
 requirements and the Fraternals may issue, again upon approval, new           
 life or health insurance products that may be developed in the                
 future.  Staff from the Division of Insurance felt rewriting the              
 Code was a better way to go rather than offering piecemeal                    
 amendments.   The model act is considered user friendly.  The code            
 has been enacted in 33 other states and 4 other states have enacted           
 essential pieces of the act.  There are 8,000+ fraternal members              
 who will be affected.  In 1995, 9,000 fraternal acts of service               
 were performed, equaling 57,000 hours, and they dispersed over                
 $225,000 for charitable activities.                                           
                                                                               
 Number 106                                                                    
                                                                               
  CHAIRMAN TAYLOR  noted some states allow for survivorship on                 
 ownership of assets and sometimes the estate plans are made up                
 jointly with survivorship provisions in them.  He questioned                  
 whether SB 119 would change any of those provisions.                          
                                                                               
  MARIANNE BURKE , Director of the Division of Insurance, Department           
 of Commerce and Economic Development, replied that SB 119 will                
 bring Alaska law into compliance with IRS regulations for estate              
 planning.                                                                     
                                                                               
 Number 123                                                                    
                                                                               
  CHAIRMAN TAYLOR  asked whether her staff has actually researched             
 whether SB 119 will bring Alaska into compliance.   MS. BURKE                 
 replied SB 119 is based on the NAIC Model Act which was developed             
 and researched with the IRS, on a nationwide basis, to ensure                 
 compliance with both FCC and IRS requirements.  She added the                 
 Division believes it is better to repeal and reenact to make sure             
 this was in compliance with those provisions.                                 
                                                                               
  SENATOR MILLER  moved CSSB 119(L&C) from committee with individual           
 recommendations.  There being no objection, the motion carried.               
        SB 101 REGULATIONS: ADOPTION & JUDICIAL REVIEW                        
                                                                              
  CHAIRMAN TAYLOR  explained SB 101 makes fairly sweeping changes to           
 the current regulatory process.  It requires that a cost-benefit              
 analysis be prepared before regulations are adopted, limits the               
 effective period of emergency regulations, and provides for                   
 judicial review of the validity of regulations.   He noted he                 
 supports the concept but does not know whether it is enforceable.             
                                                                               
 JOHN LINDBACK , testifying on behalf of the Lieutenant Governor's             
 Office, the designated lead agency on legislation affecting the               
 regulatory process, gave the following overview of the history and            
 streamlining process that has occurred.  Administrative Order 157             
 was issued in January of 1995.  That order changed the way                    
 regulations are promulgated by using plain English, making the                
 process more user friendly, and taking cost into account.  Last               
 February agencies were required to submit a follow-up report on how           
 they are complying with Administrative Order 157.   The report                
 shows that most agencies have set up a regular review of all                  
 regulations; for some agencies the task is much more time consuming           
 than for others.  Additionally, the Administration introduced SB
 155 a week ago, which attempts to make the regulatory process more            
 public-friendly.  It allows for an automatic update for                       
 corporations, and more public friendly advertising of regulations.            
 The Administration plans to launch a regulations home-page on the             
 Internet which will allow the user to view all regulations in every           
 agency.   He offered to provide committee members with more                   
 comprehensive information on the current regulatory process and               
 anticipated changes.                                                          
                                                                               
 Number 216                                                                    
                                                                               
  DEBORAH BEHR , Department of Law, testified that SB 101 makes                
 dramatic changes to the regulatory process.  She made the following           
 comments on the bill.                                                         
                                                                               
 Sections 5 and 6 deal with a cost benefit analysis on regulations.            
 This concept is not new; in 1995, Representative Kelly introduced             
 HB 130 which eventually became law.  It was based on this same                
 concept and the fiscal notes were very high.  State law was changed           
 to require state agencies to pay special attention to the costs to            
 private parties.  During the public comment period, the agencies              
 are asked to actively solicit costs of compliance and every                   
 newspaper ad asks for such information.  DEC is now required, under           
 HB 130, to consider alternative means of accomplishing the same               
 goals.                                                                        
                                                                               
 Ms. Behr said that after reviewing SB 101, she has come to the                
 conclusion that the cost-benefit analysis is a very expensive                 
 provision, especially to get the precision that is necessary to               
 stand up in court.  She is concerned about battles with experts,              
 and the cost of hiring economists to defend regulations.  In the              
 case of the timber sale contracts, the DOL attorney in charge                 
 indicated it would be virtually impossible to get a timber sale               
 contract that would stand up to a court test.   The benefit to the            
 public of leaving a tree standing or cutting it down would have to            
 be determined.  The bill contains no definition of the word                   
 "public."   It could be the people in a community, the State of               
 Alaska, or the United States.  The new welfare reform program will            
 require a lot of new regulations.  It is difficult to determine               
 whether the costs should be based on the short or long term impact.           
 Regulations projects may require more than one financial analysis.            
 The Board of Fish deals with 900 regulations proposals each year.             
 The way SB 101 is written, it is not clear whether the cost-benefit           
 analysis is supposed to occur when the regulation is noticed up, or           
 at the time the Board adopts the regulation.  If the Department of            
 Fish and Game had to do a cost-benefit analysis on 900 proposals,             
 the cost would be extremely prohibitive.  Additionally, it might              
 change the way the Board of Fish operates.  That Board has a very             
 democratic process and allows anyone to fill out a proposal book.             
 Each proposal is noticed up so that anyone can comment.  It would             
 be very difficult to cost benefit some of these ideas.  Printing              
 the summary in newspaper ads will be very expensive.  The                     
 Department of Fish and Game did a cost benefit analysis on a                  
 regulation in the past and estimated it took over 1 1/2 years and             
 cost over $150,000.                                                           
                                                                               
 Ms. Behr noted SB 101 is written to cover all administrative                  
 agencies.  The Department of Corrections does regulations on                  
 discipline of prisoners.  In order for DOC to adopt regulations it            
 will have to do a cost benefit analysis to the public on whether or           
 not the benefits of that prison disciplinary scheme outweigh the              
 cost of implementation.  The potential for frivolous litigation in            
 that arena is high.                                                           
                                                                               
 Ms. Behr discussed the difficulties of doing cost benefit analyses            
 on the benefits of public safety, i.e. the benefits of requiring              
 sex offender registration.  DPS would not be able to sign off on a            
 regulation unless it could prove that the benefits of registration            
 outweigh the costs.                                                           
                                                                               
 In light of Alaska's constitutional right of privacy, Ms. Behr                
 pointed out that some of the cost information to private parties              
 will be inaccessible.  She recently assisted the Board of Dentistry           
 in establishing a regulation pertaining to use of laser equipment             
 by dental hygienists, which the Board felt was inappropriate.  In             
 order for the Board to establish the same regulation under SB 101,            
 cost benefit information from dentists regarding how much time each           
 dental employee has used laser equipment would be required.  Many             
 dentists may consider that proprietary business information and               
 refuse to supply it.  In addition, the issue of regulating mail or            
 telephone access for prisoners would be problematic.                          
                                                                               
 Number 325                                                                    
                                                                               
 Ms. Behr said her opinion is that SB 101 is a good idea that may              
 have unintended consequences.  During a time when the Legislature             
 is trying to downsize state government, anyone could challenge that           
 approach by suing anytime a regulation is promulgated on the basis            
 that the cost benefit analysis was insufficient.   She again                  
 referred to problems with the timber sale contracts.  Promulgating            
 emergency regulations would also be problematic.  In order for an             
 emergency regulation to become permanent, it can only be out for              
 120 days and an economic analysis that would stand up in court                
 cannot be completed in that time.  SB 101 would severely stifle an            
 important part of the Procedures Act which is to respond to crises            
 when the Legislature is not in session.                                       
                                                                               
 Ms. Behr questioned how one would do a cost benefit analysis of a             
 fee regulation because the cost to an individual person and                   
 benefits to the public would have to be determined.                           
                                                                               
 Ms. Behr thought this approach might be productive if applied to              
 large projects only but not to regulations that have a minimal                
 impact, such as raising copying costs a few cents.  She also                  
 suggested exempting federal regulations and particular departments            
 from the requirements of SB 101.  She noted the average business              
 person would only do a cost benefit analysis on large projects.               
                                                                               
 Ms. Behr discussed the next major change in SB 101; supplemental              
 notices for significant changes of regulations.  If an agency                 
 notices up a regulation for a fee increase from $50 to $100, and              
 then, after the first set of hearings determines a more appropriate           
 amount to be $75, the agency would have to solicit a whole new                
 round of public comments.  Newspaper notices would be required, and           
 if a board or commission is involved, it would have to meet again             
 resulting in travel and per diem costs.  The new public comment               
 could produce different results and the procedure would have to               
 occur again.  She repeated her concern that in the attempt to                 
 downsize state government and raise fees, anyone who wants to                 
 challenge that approach could do so by challenging the cost benefit           
 analysis.  She explained that after the Legislature adjourns in               
 May, state agencies will need to implement new regulations based on           
 changes in law, for example welfare reform.  They will be required            
 to hold a public comment period and adopt regulations with a cost             
 benefit analysis by July 1.                                                   
                                                                               
 The third major change in SB 101 is the standard of review used by            
 the court to review regulations.  Section 7 contains the current              
 standard used by judges to invalidate regulations: for substantial            
 failure to comply with the APA; on constitutional grounds; or for             
 equal protection rights violations.  SB 101 changes the standard of           
 review so that there will be a presumption of invalidity.  To be              
 valid, a regulation will have to be the least intrusive to the                
 rights of persons or property affected by the regulations.  There             
 are many areas where this standard will create problems, such as              
 with prison discipline regulations.  A prisoner could sue on the              
 new standard based on the possibility that a lesser punishment                
 could be used.  If the State could not defend the regulation based            
 on that standard, it would have to prove a compelling State                   
 interest which would be virtually impossible to do.                           
                                                                               
 Ms. Behr repeated her concerns that SB 101 will have unintended               
 consequences and may result in a lot of frivolous litigation. She             
 discussed a final change that could occur if SB 101 passes.                   
 Significant changes to regulations can be tested in District Court            
 therefore, oil tax regulations could be brought before a District             
 Court judge at the same time the judge is hearing cases about a               
 child smoking underage or a driver who failed to remove studded               
 snow tires.  Once the case goes to District Court, it could be                
 directly appealed to the Supreme Court.  This will create a                   
 dramatic policy change.                                                       
                                                                               
 Ms. Behr noted two technical problems with SB 101.  Section 4 does            
 not include all state agencies, and excludes the Office of the                
 Governor, which does regulations on telecommunications and                    
 elections, and the University of Alaska which has procurement                 
 regulations.                                                                  
                                                                               
 Number 410                                                                    
                                                                               
  SENATOR   DONLEY , sponsor of SB 101, explained SB 101 is an expansio        
 of legislation proposed in past years.  He tried to exempt agencies           
 and areas in which additional restrictions would be inappropriate.            
 The Boards of Fish and Game are exempted on page 4, as well as                
 things that result from federal requirements.  He acknowledged                
 there may be other areas, such as natural resources and the timber            
 sale contracts mentioned by Ms. Behr, that may be appropriate to              
 exempt.  He also suggested removing the language on page 3, lines             
 5-7, because of problems identified by Ms. Behr.  That deletion               
 would still require departments to use the procedure for                      
 informational purposes, but not to use it as the standard for                 
 adopting a regulation, thereby preventing that standard from being            
 used as the basis for a challenge in court.  That would enable                
 departments to use procedures appropriate for the level of                    
 seriousness of the regulation, such as raising the cost of copying            
 fees.                                                                         
                                                                               
  SENATOR DONLEY  noted that he intended the section on notices on             
 page 4 to apply to all provisions of the bill.                                
                                                                               
  SENATOR PARNELL  noted he was also concerned about the language on           
 page 3, lines 5-7.   CHAIRMAN TAYLOR  suggested forming a                     
 subcommittee of Senator Donley, department staff, and any                     
 interested committee members to work on the legislation and bring             
 a committee substitute before the committee for further review.               
                                                                               
 Number 451                                                                    
                                                                               
  SENATOR DONLEY  stated he has not found departments to be                    
 cooperative regarding this bill.  He discussed the problem of                 
 notice in the regulatory process, and stated one has to balance the           
 value of having the Executive Branch do immediate regulations                 
 without appropriate public input against the advantages of                    
 providing for expeditious regulations when necessary.  He stated he           
 believes it is clearly appropriate that the Executive Branch give             
 the public notice of its intentions.                                          
                                                                               
  SENATOR PARNELL  asked Senator Donley why he chose to include                
 District Courts in addition to the Superior Court on page 6.                  
  SENATOR DONLEY  replied he would like to increase the public's               
 ability to challenge more regulations because such a wide scope of            
 regulations exist now.  He thought the challenge of some                      
 regulations would be appropriate for District Court, for others the           
 Superior Court.   SENATOR PARNELL  agreed but thought if the District         
 Court's jurisdiction is under $50,000, it is not appropriate for a            
 case involving millions of dollars in oil taxes to be resolved                
 there.   SENATOR DONLEY  agreed and suggested changing the way the            
 bill applies to revenue regulations.                                          
                                                                               
 Number 476                                                                    
                                                                               
  SENATOR ELLIS  asked whether the District Court has any equitable            
 jurisdiction right now.    CHAIRMAN TAYLOR  answered it does not.             
  SENATOR ELLIS  asked if the Legislature is seeking to change that.           
  SENATOR DONLEY  replied it would be struck down on the basis of              
 fact.                                                                         
                                                                               
 CHAIRMAN TAYLOR  thought that would fall under the equity                     
 jurisdiction because it would require someone to do an act, as                
 opposed to pay money damages.  That distinction limits one's                  
 ability to get access to the bench.  If the focus was on                      
 jurisdiction limits, twice the number of judges would be available            
 for adoptions and juvenile matters and it would not take two or               
 three years to get on a court calendar.                                       
                                                                               
  SENATOR DONLEY  said he would be satisfied if the bill required              
 agencies to provide subsequent public notices before adopting                 
 things that were subsequently different.                                      
                                                                               
  CHAIRMAN TAYLOR  commented he introduced a bill three years ago that         
 would require, that before an agency proposed a regulation or                 
 before a federal regulation was adopted, the department to report             
 the cost of the federal mandate.  That bill was vetoed by the                 
 Governor.                                                                     
                                                                               
 Number 497                                                                    
                                                                               
  JACK KREINHEDER , Office of Management and Budget (OMB), summarized          
 the fiscal notes.  The grand total of the fiscal notes is in excess           
 of $1.6 million with the largest impact being on the Departments of           
 Environmental Conservation, Natural Resources, Law and Commerce and           
 Economic Development.  The amendment offered to the cost benefit              
 analysis provision may remove some court challenges, however even             
 if that is true, promulgating regulations correctly is a complex              
 process.  He stated he is reluctant to advocate legislation with              
 the idea that departments are going to pay lip service to it and              
 provide a one-page cost benefit analysis that is not worth the                
 paper it is written on.  He supported Ms. Behr's comments that the            
 benefit of any regulation should exceed the cost, but the effort              
 devoted toward determining dollar figures, for cost, compliance and           
 benefits should be devoted to making a better regulation.                     
                                                                               
  CHAIRMAN TAYLOR  asked Mr. Kreinheder to work with Senator Donley's          
 staff to improve the approach.  He adjourned the meeting at 4:55              
 p.m.                                                                          
                                                                               

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