Legislature(1999 - 2000)
02/05/1999 01:40 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 5, 1999 1:40 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Dave Donley Senator John Torgerson MEMBERS ABSENT Senator Rick Halford, Vice-Chairman Senator Johnny Ellis COMMITTEE CALENDAR SENATE BILL NO. 41 "An Act making corrective amendments to the Alaska Statutes relating to certain repealed law as recommended by the revisor of statutes; and providing for an effective date." -HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 41 - No previous action to report. WITNESS REGISTER Mr. James Crawford Assistant Revisor Legislative Legal and Research Services 130 Seward suite 409 Juneau, AK 99801 POSITION STATEMENT: Presented SB 41 ACTION NARRATIVE TAPE 99-7, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:42 p.m. and announced SB 41 would be the only order of business. SB 41-SUPPLEMENTAL REVISOR'S BILL MR. JAMES CRAWFORD, Assistant Revisor of Statutes, explained that the substantive sections of the bill are aimed at language in existing statute that refers to obsolete statutes. MR. CRAWFORD stated that the bill attempts to correct this problem in a manner consistent with the Legislature's intent. MR. CRAWFORD said the references in sections 1, 2, 4 and 5, originated from chapter 45 and are all similar to one another. Chapter 45 reflected a concern for vulnerable people receiving home care services. MR. CRAWFORD observed that the legislative intent behind chapter 45 was to increase general protection for these people and, more specifically, to protect them from being robbed or defrauded. The original bill derived from a case in which an elderly person had been defrauded by a home care provider and lost $500,000. The bill contained a criminal records check requirement for home care providers who wished to receive state funding. Number 052 SENATOR TORGERSON asked if it turned out that the perpetrator of that crime had a criminal background. MR. CRAWFORD replied he did not know about this case in particular, but had reviewed all the minutes of meetings in which this original bill was discussed and the minutes indicated that 30% of the records checks performed turned up criminal records. SENATOR TORGERSON asked for clarification of what type of protection the bill tried to afford. MR. CRAWFORD said the protection was for vulnerable people such as children, the elderly and the disabled. SENATOR TORGERSON asked when this bill was passed and MR. CRAWFORD replied chapter 45 passed in 1994. SENATOR TORGERSON asked how the bill has been interpreted in the meantime. MR. CRAWFORD stated that the records that have been made available under this type of request are the same type of records that were available under the statute that was repealed. MR. CRAWFORD said the correction in SB 41 will replace a reference to "records" with a reference to "criminal justice information" to make it consistent with current statute. The new reference will provide all the same information available under the old reference, and could possibly provide more information, consistent with the intent of the 1994 Legislature to increase protection to vulnerable people. MR. CRAWFORD explained that Section 3 is slightly different from the rest of the bill and deals with a reference to "sex crimes," a narrower category than "records." MR. CRAWFORD said in order to remain consistent with this narrower intent, the definition of "sex crimes" was merely taken from the obsolete statute and inserted into the new statute. Number 152 SENATOR DONLEY asked if MR. CRAWFORD could provide a public policy example of the difference between the two. MR. CRAWFORD said, in suggesting a revisor's bill, he only looks at the original legislative intent as it compares with the more recent legislative intent. SENATOR DONLEY inquired as to the logic behind having one section more narrowly limited than the other. MR. CRAWFORD replied the logic is that a revisor's bill attempts to stick as closely as possible to the legislative intent. He stated that public policy is not made in a revisor's bill. In answer to SENATOR DONLEY'S question, MR. CRAWFORD pointed out that the statute in section 3 already contains that other information, so adding it is not necessary. SENATOR DONLEY commented that he believes it is appropriate for a revisor's bill to look for consistency and logic and insert it where necessary. Number 220 SENATOR TORGERSON asked about section 3, and particularly the reference to an "attempted" violation of particular statutes. He noted that one of the crimes defined under this section is "attempted mooning." He asked if this was a valid basis to revoke someone's licence. MR. CRAWFORD said the bill is worded that way because that is the way it was worded in 1994 and he only took out the old definition and replaced it with the new definition. SENATOR TORGERSON asked if the result of the original bill is that a person convicted of this crime will lose their day care or foster care licence. MR. CRAWFORD responded that it is possible the person's licence would be revoked or the issuing body would fail to renew it. SENATOR TORGERSON asked if it is customary to include the phrase "or regulations adopted under this chapter." MR. CRAWFORD indicated it is. SENATOR TORGERSON also asked about the wording "or laws of another jurisdiction." MR. CRAWFORD replied this is a common inclusion that allows previous crimes of a similar nature to be counted against a person who commits another of the same type of crime in a different jurisdiction. CHAIRMAN TAYLOR explained this and gave the example of a person convicted of a DWI in Alaska who is later convicted of a DWI in California. The California DWI would be counted as a second offense because Alaska considers .10 the standard for DWI and California uses .08 as its standard. The Alaska offense exceeds the California standard and, therefore, would be considered a prior offense. Number 295 CHAIRMAN TAYLOR remarked he feels this bill reaches the edge of what can be considered a revisor's bill because of the conflicting legislation underlying SB 41. He indicated something this significant might be better dealt with a clean up bill, rather than this revisor's bill. CHAIRMAN TAYLOR also expressed interest in knowing more about how these records requests have been dealt with since 1994. MR. CRAWFORD replied that he had learned these requests were being dealt with in essentially the same manner they had previously been dealt with, according to Ms. Diane Shenker of the Department of Public Safety. He added that regulations also govern these records requests. CHAIRMAN TAYLOR expressed surprise that Ms. Shenker was "back doing that again," as during an inquiry conducted on illegal use of the Alaska Public Safety Information Network, Ms. Shenker "all of the sudden either wasn't available or wasn't part of the scheme anymore . . . " CHAIRMAN TAYLOR said Ms. Shenker had testified that under the existing language, these records requests would only access state records and would not allow access into the federal National Crime Information Center (NCIC) computer. CHAIRMAN TAYLOR suggested stronger language would be needed to allow NCIC access and this would be a substantive change that would not fit in a revisor's bill. He asked if the objective of this bill might be better served by a regular substantive bill. CHAIRMAN TAYLOR said he would sponsor such a bill. Number 375 MR. CRAWFORD replied that any correction in a revisor's bill is up to the will of the Legislature. He did agree that a stronger authorizing statute would be needed in order for these records requests to access NCIC. SENATOR TORGERSON declared a conflict-of-interest. He owns a licenced foster care home. He moved and asked unanimous consent that he be allowed to leave the committee at this time. Both CHAIRMAN TAYLOR and SENATOR DONLEY objected. Number 390 SENATOR TORGERSON asked if, under statute, a background check is required every 10 years. MR. CRAWFORD indicated the answer probably lies in regulation. SENATOR TORGERSON said he likes CHAIRMAN TAYLOR'S idea of a new bill but would like the department to appear before the committee and answer some questions. He commented that he is not sure if "mooning" is something that needs to be included in the original bill. SENATOR DONLEY suggested that, under this statute, the crime of "mooning" would carry a penalty more severe than perjury. SENATOR TORGERSON interjected that "attempted mooning" would also carry the same penalty. SENATOR TORGERSON asked if a simple indictment would stand and could cause someone to lose their licence. MR. CRAWFORD replied that the indictment would have to come down from a grand jury and be based on probable cause. SENATOR DONLEY wondered, "Did we really pass this bill?" SENATOR DONLEY expressed amazement that someone could be indicted, found innocent, and still be banned for life from holding one of these licences. MR. CRAWFORD replied that doing that is possible, but not mandatory for the department. SENATOR DONLEY concluded, "This really stinks." Number 455 CHAIRMAN TAYLOR said it appears it doesn't even take an indictment of attempted mooning, in fact it only takes a presentment of attempted mooning to revoke a person's licence. He said this is a problem and the committee will hold the bill and ask the department to appear to answer some questions that have been raised. CHAIRMAN TAYLOR asked MR. CRAWFORD to draft an amendment to the existing law to clean it up in a manner consistent with federal law. He asked MR. CRAWFORD to give some thought to "how far down the misdemeanor ladder you want to go." SENATOR TORGERSON suggested the committee also look at the regulations associated with this statute. SENATOR DONLEY remarked he was surprised that, under this law, a person would not be innocent until proven guilty and, even after proving innocence, would still be guilty. He concluded, "There is something really wrong here." CHAIRMAN TAYLOR adjourned the meeting at 2:17 p.m.