Legislature(1997 - 1998)
04/27/1998 02:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.