Legislature(1997 - 1998)

04/27/1998 02:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE JUDICIARY COMMITTEE                                       
                    April 27, 1998                                             
                      2:15 p.m.                                                
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Senator Robin Taylor, Chairman                                                 
Senator Drue Pearce, Vice-Chairman                                             
Senator Mike Miller                                                            
Senator Sean Parnell                                                           
Senator Johnny Ellis                                                           
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
All members present                                                            
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
SENATE JOINT RESOLUTION NO. 10                                                 
Proposing amendments to the Constitution of the State of Alaska                
relating to the election and the duties of the attorney general.               
                                                                               
     - MOVED SJR 10 OUT OF COMMITTEE                                           
                                                                               
HOUSE BILL NO. 16                                                              
"An Act relating to delinquent minors, to the taking of action                 
based on the alleged criminal misconduct of certain minors, to the             
services to be provided to the victims of criminal misconduct of               
minors, and to agency records involving minors alleged to be                   
delinquent based on their criminal misconduct; and amending Rule 19            
and repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska                      
Delinquency Rules."                                                            
                                                                               
     - SCHEDULED BUT NOT HEARD                                                 
                                                                               
HOUSE BILL NO. 335                                                             
"An Act replacing the Uniform Child Custody Jurisdiction Act with              
the Uniform Child Custody Jurisdiction and Enforcement Act; and                
amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule             
205, Alaska Rules of Appellate Procedure."                                     
                                                                               
     - MOVED HB 335 OUT OF COMMITTEE                                           
                                                                               
SENATE RESOLUTION NO. 2                                                        
Requesting Bruce M. Botelho, Attorney General of the State of                  
Alaska, to appoint a special prosecutor to investigate possible                
security and other violations in connection with World Plus, Inc.              
                                                                               
     - HEARD AND HELD                                                          
                                                                               
PREVIOUS SENATE COMMITTEE ACTION                                               
                                                                               
SJR 10 - See Judiciary minutes dated 2/19/97, 2/26/97, and 3/19/97.            
                                                                               
SR 2 - No previous action to report.                                           
                                                                               
HB 16 - No previous action to report.                                          
                                                                               
HB 335 - See HESS minutes dated 3/25/98 and Judiciary minutes                  
     dated 4/22/98.                                                            
                                                                               
WITNESS REGISTER                                                               
                                                                               
Ms. Pat Davidson                                                               
Legislative Auditor, Legislative Audit Division                                
Alaska State Legislature                                                       
PO Box 113300                                                                  
Juneau, Ak 98811-3300                                                          
   POSITION STATEMENT: Commented on SR 2                                       
                                                                               
Mr. Bruce Campbell                                                             
Staff to Representative Pete Kelly                                             
State Capitol                                                                  
Juneau, Ak 99801-1182                                                          
   POSITION STATEMENT: Presented HB 16                                         
                                                                               
Ms. Margo Knuth                                                                
Assistant Attorney General                                                     
Criminal Division, Department of Law                                           
PO Box 110300                                                                  
Juneau, Ak 99811-0300                                                          
   POSITION STATEMENT: Commented on HB 16                                      
                                                                               
Ms. Barbara Brink                                                              
Director, Public Defender Agency                                               
Department of Administration                                                   
900 West 5th Ave, suite 200                                                    
Anchorage, Ak 99501                                                            
                                                                               
Ms. Patti Swenson                                                              
Staff to Representative Con Bunde                                              
State Capitol                                                                  
Juneau, Ak 99801-1182                                                          
   POSITION STATEMENT: Presented HB 335                                        
                                                                               
Ms. Deborah Behr                                                               
Assistant Attorney General                                                     
Legislation & Regulations, Department of Law                                   
PO Box 110300                                                                  
Juneau, Ak 99811-0300                                                          
   POSITION STATEMENT: Supported HB 335                                        
Ms. Renee Howell                                                               
Staff to Senator Lyda Green                                                    
State Capitol                                                                  
Juneau, Ak 99801-1182                                                          
   POSITION STATEMENT: Presented SJR 10                                        
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-43, SIDE A                                                             
Number 001                                                                     
                                                                               
                                                                               
        SR   3 - ALASKA PUBLIC SAFETY INFORMATION SYSTEM                       
                                                                               
                                                                               
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                
order at 2:15 and called SR 3 as the first order of business.                  
CHAIRMAN TAYLOR asked if there was anyone else wanting to give                 
testimony regarding the "computergate scandal."                                
                                                                               
Hearing none, SENATOR MILLER moved SR 3 out of committee with                  
individual recommendations. There was objection from SENATOR ELLIS             
and the roll was called. The bill passed out of committee by a vote            
of three to one, with SENATOR ELLIS maintaining his objection.                 
                                                                               
       SB 190 - ATTEMPT TO PURCHASE BEFORE EMINENT DOMAIN                      
                                                                               
                                                                               
CHAIRMAN TAYLOR brought up SB 190, noted the committee had heard               
this bill before and he was satisfied with their deliberations and             
would entertain a motion to move the bill to the entire body for a             
decision.                                                                      
                                                                               
Number 48                                                                      
                                                                               
SENATOR MILLER moved SB 190 from committee with individual                     
recommendations. Without objection, it was so ordered.                         
                                                                               
            SR   2 - WORLD PLUS, INC., INVESTIGATION                           
                                                                               
                                                                               
CHAIRMAN TAYLOR explained SR 2 relates to the World Plus Inc. (WPI)            
ponzi scheme perpetrated in Fairbanks. He asked if anyone from the             
Department of Law was prepared to testify on this legislation.                 
Hearing no one, CHAIRMAN TAYLOR commented that the silence from the            
department on this issue was deafening.                                        
                                                                               
Number 71                                                                      
                                                                               
CHAIRMAN TAYLOR asked MS. PAT DAVIDSON, Legislative Auditor to come            
forward and give the committee an update.                                      
                                                                               
MS. DAVIDSON testified that there was a Legislative Budget and                 
Audit meeting scheduled for April 30, 1998, at which time she would            
provide information and a briefing to that committee.                          
                                                                               
CHAIRMAN TAYLOR asked MS. DAVIDSON how the audit was going.                    
                                                                               
SENATOR ELLIS asked CHAIRMAN TAYLOR to clarify what MS. DAVIDSON               
could discuss with the committee and what would be inappropriate to            
ask of her. CHAIRMAN TAYLOR suggested committee members might ask              
whatever they liked, though he was not sure what MS. DAVIDSON would            
be able to say.                                                                
                                                                               
Number 100                                                                     
                                                                               
MS. DAVIDSON reported that the auditors don't generally talk about             
audits in public while they are conducting them, especially before             
they present their report to the Budget and Audit committee. She               
indicated she couldn't really give the committee any information at            
this time.                                                                     
                                                                               
CHAIRMAN TAYLOR stated that the committee has a prior report with              
findings indicating an apparent conflict of interest within the                
Department of Law. He asked if, after further investigation, the               
auditors had changed that original opinion.  MS. DAVIDSON replied              
she was unable to answer that question due to the confidentiality              
of the audit process. CHAIRMAN TAYLOR asked MS. DAVIDSON if they               
could defer this matter until Thursday, after her report to the                
Budget and Audit Committee, giving the committee time to decide                
what information could be released. MS. DAVIDSON said that might be            
premature, as she will need to brief the Budget and Audit committee            
as well as submit to them a written report. She said she is in the             
process of preparing the report, but she anticipates it might take             
a bit longer due to the ongoing actions against WPI.                           
                                                                               
CHAIRMAN TAYLOR asked if the class action suit filed in the case               
against the State of Alaska was impacting MS. DAVIDSON's ability to            
conduct the audit. MS. DAVIDSON replied they are getting                       
cooperation from all departments involved and she thinks the                   
difficulty posed by the suit will lie in determining what is and               
what is not public information. CHAIRMAN TAYLOR remarked this was              
understandable and he was having the same problem with information             
he received from the Department of Law in relation to the Alaska               
Public Safety Information Network. He said his concern was how                 
people in the state would find out that the chief prosecutor in the            
state failed to prosecute anyone in this case if he couldn't get               
answers in a legislative hearing.                                              
                                                                               
MS. DAVIDSON said that at some point in time, the auditors could               
make a public report. CHAIRMAN TAYLOR asked if that would be before            
the end of this legislative session and MS. DAVIDSON replied that              
she doubted that.                                                              
                                                                               
Number 175                                                                     
                                                                               
CHAIRMAN TAYLOR expressed frustration with his inability to access             
the information necessary to act on behalf of the people. CHAIRMAN             
TAYLOR said he wants a legal opinion from the Department of Law on             
who they think their client is. He said everything he has seen so              
far indicates that the Department of Law thinks that the state                 
employees and their agencies are their clients and so                          
attorney/client privilege applies. CHAIRMAN TAYLOR said this is not            
an appropriate use of this privilege and not a reasonable reason to            
prevent the transmittal of information to the auditors and the                 
Judiciary committee. CHAIRMAN TAYLOR understood MS. DAVIDSON                   
couldn't tell the committee anything at this time but hoped when               
the Budget and Audit committee allowed her to do so, she could                 
provide them with a preliminary report. CHAIRMAN TAYLOR said he was            
primarily concerned about the statement made in the original report            
regarding an apparent conflict of interest and the failure to                  
prosecute on the part of the Attorney General.                                 
                                                                               
Number 215                                                                     
                                                                               
MS. DAVIDSON reported that her office drew their initial                       
conclusions entirely from public information, especially the                   
statement made by the Attorney General regarding why the state                 
deferred prosecution to the federal government in this case. She               
said they did not question this decision, only suggested that when             
the federal authorities were done with the case, someone with a                
state perspective should look into it. CHAIRMAN TAYLOR thanked MS.             
DAVIDSON and said he hoped they could take this up again in order              
to clear up some lingering questions.                                          
            HB  16 - JUVENILE DELINQUENCY PROCEDURES                           
                                                                               
MR. BRUCE CAMPBELL, staff to Representative Pete Kelly, presented              
HB 16 as Rep. Kelly's third substantial bill regarding juvenile                
justice matters. He said Rep. Kelly worked with the Governor as                
well as several departments on this bill.                                      
                                                                               
MR. CAMPBELL said this bill will establish dual sentencing                     
procedures which will give juveniles both a juvenile and an adult              
sentence and allow them to serve the former sentence unless their              
behavior necessitates the latter.                                              
                                                                               
MR. CAMPBELL explained the bill also clearly authorizes                        
municipalities to take minors before civil court and gives the                 
Department of Health, Education and Social Services the ability to             
get involved in the informal adjudication process and encourages               
all involved agencies to resolve problems at the earliest, most                
correctable levels.                                                            
                                                                               
MR. CAMPBELL said the bill also adds secure and semi-secure                    
residential facilities for minors with drug, alcohol and                       
developmental disorders, allowing these offenders to remain in                 
state.                                                                         
                                                                               
CHAIRMAN TAYLOR asked if there was an amendment to the bill and MR.            
CAMPBELL said there was an amendment he hoped the committee would              
consider. The amendment concerned the recent murder of taxi drivers            
in Anchorage, a crime in which a minor offender would be waived                
automatically into adult court. However, in the interpretation of              
the waiver provision, it was ruled that could only happen after an             
"arraignment."  This would require a grand jury indictment, and                
goes against the intent of the bill. The amendment clarifies these             
juveniles could be waived into adult court without a grand jury                
indictment.                                                                    
                                                                               
Number 315                                                                     
                                                                               
CHAIRMAN TAYLOR agreed that was not the intent of the waiver bill              
and expressed his appreciation for this legislation and the fix it             
makes to the juvenile waiver process.                                          
                                                                               
SENATOR ELLIS asked what process the task force used to make                   
recommendations and if there were provisions in the bill that did              
not originate from the task force, or if there were task force                 
recommendations that had not been included in the bill. MR.                    
CAMPBELL noted section six dealing with a witness protection                   
program did not come out of the task force process and he believed             
there were one or two provisions from the task force report that               
were left out. MR. CAMPBELL indicated one of these changes was a               
change in wording that would have made the bill much longer and                
more complex.                                                                  
                                                                               
Number 362                                                                     
                                                                               
MS. MARGO KNUTH, representing the Department of Law, worked with               
the Youth and Justice Forum in 1996 to formulate their lengthy                 
report. MS. KNUTH said this was a bipartisan group that met over               
the course of a year and concerned itself with the increase in                 
youth crime in Alaska. MS. KNUTH said the group discovered that                
part of the problem was a heightened awareness of youth crime                  
created a perception of an increase in juvenile crime.  Alaska is              
a growing state and there are simply more kids living here.                    
                                                                               
MS. KNUTH said the conference came up with two major conclusions.              
First, they decided the "most bang for the buck" would come from               
increased funding for prevention and early intervention. She said              
the smart start program is an outgrowth of that conclusion.                    
                                                                               
MS. KNUTH said the second conclusion the conference reached was                
regarding the importance of civil penalties. She said it is not how            
large or small the consequences are, but how likely they are to  be            
enforced that makes them effective. She suggested consistent small             
consequences are extremely effective for the low level offender and            
there is currently a group of these lower level offenses that are              
drawing no response. MS. KNUTH said this bill will authorize                   
communities to deal with these offenses through civil penalties and            
a community court system.                                                      
                                                                               
On the other end of the spectrum, MS. KNUTH said the conference                
established that there is a small group of serious offenders who               
need to be identified and closely monitored. She said this is where            
the dual sentencing provisions come in. She said those juveniles at            
risk for becoming serious offenders will be given once last chance             
in the form of a dual sentence. If they abide by the provisions set            
out by the court under their juvenile sentence (including                      
drug/alcohol treatment, restitution, etc.) they end up with no                 
adult conviction and no adult record. However, if they fail to                 
abide by the conditions they are waived into their adult sentence.             
MS. KNUTH said this is proving to be effective, and it puts the                
person's future into their own hands and allows them to control                
their fate. MS. KNUTH was "fairly optimistic" this bill would help             
juvenile offenders at both sides of the spectrum.                              
                                                                               
CHAIRMAN TAYLOR asked MS. KNUTH if she had any concerns about the              
amendment. MS. KNUTH said the amendment seemed appropriate with the            
intent of the original legislation and was a good fix to the                   
problem.                                                                       
                                                                               
Number 438                                                                     
                                                                               
MS. BARBARA BRINK, Alaska Public Defender, thanked the sponsor for             
making improvements to the bill but testified that treating more               
kids like adults will not necessarily be a more effective crime                
fighting measure. MS. BRINK suggested we should remember that there            
has not been a great increase in juvenile arrests and we should                
consider that we may be reacting to the perception of a problem                
rather than a problem itself. MS. BRINK reported that Alaska is                
currently rated 37th in the country in the amount of juvenile                  
crime, with only 13 states having less juvenile crime. However, we             
are second in the country in both how many juveniles we lock up and            
how long we lock them up for.                                                  
                                                                               
MS. BRINK said there are still two sections of the bill that should            
be addressed. First, there is a portion of the bill that will treat            
children even more harshly than adults are treated by requiring                
them to serve time in cases where adults would not be required to.             
                                                                               
Second, MS. BRINK said the section that requires the automatic                 
reversion to the adult sentence for a juvenile who violates parole             
is tougher than what is required of adult offenders who violate                
conditions of parole and are allowed to have that violation                    
reviewed by a judge to determine the appropriate course of action.             
                                                                               
MS. BRINK noted that she appreciated having secure psychiatric                 
facilities in state, but she was concerned with the due process                
procedure set out on page four. She specified the provision that               
allows a hearing only after 90 days and contains a standard lower              
than the regular "likely to be a danger to self/others." MS. BRINK             
believes if the system is to be set up to punish juveniles as                  
adults, it should offer them the same protections as well.                     
                                                                               
MS. BRINK also brought up a change to delinquency rule 10c in                  
section 51, saying it allows the use of hearsay in a temporary                 
detention hearing. MS. BRINK said this type of information is not              
generally admissible and she does not think it is a good idea to               
make this change. MS. BRINK urged the committee not to adopt the               
section that permits hearsay to be used in a temporary detention               
hearing.                                                                       
                                                                               
Number 514                                                                     
                                                                               
SENATOR ELLIS asked where the language MS. BRINK referred to came              
from. MARGO KNUTH said it came from the criminal division of the               
Department of Law and is parallel to the process that allows                   
hearsay to be used in a grand jury hearing.                                    
                                                                               
SENATOR PEARCE moved amendment #1 and without objection, it was so             
ordered.                                                                       
                                                                               
SENATOR PEARCE then moved CSHB 16(JUD) out of committee with                   
individual recommendations. Without objection, it was so ordered.              
         HB 335 - UNIFORM INTERSTATE CHILD CUSTODY ACT                         
                                                                               
MS. PATTI SWENSON, staff to Representative Con Bunde, presented HB
335 as a bill that integrates Alaska into the Uniform Child Custody            
Jurisdiction and Enforcement Act (UCCJEA).  MS. SWENSON said the               
bill addresses problems that arise due to interstate child custody             
and revises the current statutes that have been unrevised since                
1968.  MS. SWENSON said the revision helps both custodial and non-             
custodial parents by addressing modern communication devices,                  
domestic violence orders and other frequently occurring problems.              
MS. SWENSON said the bill will also help clear up conflicting court            
orders issued in different states and ease enforcement and hearing             
procedures.                                                                    
                                                                               
MS. SWENSON also stated that the UCCJEA will standardize all the               
paperwork and time frames connected with custody enforcement orders            
in all states. She said the bill makes the process easier and                  
cheaper and will be important to anyone who becomes involved in a              
custody dispute. MS. SWENSON concluded that the bill also benefits             
kids and she urged the committee's support.                                    
                                                                               
Number 565                                                                     
                                                                               
MS. DEBORAH BEHR, representing the Department of Law, testified                
that she is the Uniform Law Commissioner for Alaska and one of the             
nine attorneys that drafted the UCCJEA. MS. BEHR said the Uniform              
Law Commission is a middle of the road group that seeks to                     
establish a middle of the road proposal that can be enacted in all             
fifty states.  MS. BEHR said there were no votes against the UCCJEA            
in the Uniform Law Commission.                                                 
                                                                               
MS. BEHR explained this is not a federal mandate but only a result             
of cooperation between the states. She further explained this does             
not relate to Child In Need of Aid (ChINA) determinations, nor does            
it effect child support. The bill merely deals with routine divorce            
custody orders that have some need for enforcement actions. She                
said the bill will benefit both custodial and non-custodial parents            
by ensuring the predictability of support orders and their                     
consequences.                                                                  
                                                                               
                                                                               
TAPE 98-43, Side B                                                             
Number 581                                                                     
                                                                               
MS. BEHR gave an example in which two parents had contradictory                
court orders, and illustrated how the bill will make it less                   
expensive and easier to resolve this problem, even without either              
parent retaining an attorney. She said the goal was to decrease the            
number of violations of court orders in custody cases and make the             
laws better serve kids.                                                        
                                                                               
MS. BEHR said this bill will help parents get better enforcement               
more quickly and allow for criminal penalties for noncompliance.               
                                                                               
CHAIRMAN TAYLOR thanked MS. BEHR for her work on this legislation              
and recognized the importance of predictability and stability in               
childrens lives.                                                               
                                                                               
Number 537                                                                     
                                                                               
SENATOR PEARCE moved HB 335 from committee with individual                     
recommendations. Without objection, it was so ordered.                         
                                                                               
             SJR 10 - ELECTION OF ATTORNEY GENERAL                             
                                                                               
MS. RENEE HOWELL, staff to the sponsor of SJR 10 SENATOR LYDA                  
GREEN, testified she was available to answer questions.                        
                                                                               
CHAIRMAN TAYLOR said many people in the state share a significant              
concern about amending the Constitution to elect an Attorney                   
General. Tragically, we don't currently have an Attorney General               
working in the interest of the people of Alaska, according to                  
CHAIRMAN TAYLOR. He said the Attorney General and the Department of            
Law are hiding behind a specious claim of attorney/client privilege            
and are unwilling to testify before this committee, though seem to             
be quite able to make statements to the press.                                 
                                                                               
CHAIRMAN TAYLOR said the "Attorney General" is not even the                    
Attorney General as he failed to stand for confirmation before the             
Legislature. CHAIRMAN TAYLOR referred to the issue of searches                 
conducted in dry villages and compared Bruce Bothelo's assessment              
that the law was "working" to the logic of Hitler and Stalin.                  
CHAIRMAN TAYLOR indicated that Mr. Bothelo's failure to prosecute              
in both the ponzi scheme and the APSIN matter belies this                      
Governor's crass, political motivation.                                        
                                                                               
CHAIRMAN TAYLOR also indicated the Attorney General's decision to              
drop the Babbitt suit was another reason that left us with no other            
option than to direct the voters to elect an Attorney General. He              
said he maintains his reluctance to change the Constitution, but               
finds no other way to ensure the Attorney General will be                      
accountable for his or her actions.                                            
                                                                               
Number 464                                                                     
                                                                               
SENATOR MILLER moved SJR 10 out of committee with individual                   
recommendations. Without objection, it was so ordered.                         
                                                                               
CHAIRMAN TAYLOR announced the committee had no further business                
before them and they were adjourned at 3:53 p.m.                               
                                                                               

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