Legislature(1999 - 2000)
02/24/1999 01:37 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 24, 1999 1:37 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator John Torgerson Senator Johnny Ellis MEMBERS ABSENT All members present COMMITTEE CALENDAR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 5 "An Act relating to the crime of misprision of felony." -HEARD AND HELD SENATE BILL NO. 69 "An Act authorizing an advisory vote by the qualified voters of the state on the question of the election of the attorney general; and providing for an effective date." -HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 5 - See Judiciary Committee minutes dated 2-3-99. SB 69 - See State Affairs minutes dated 2/16/99. WITNESS REGISTER Mr. Blair McCune Deputy Director Alaska Public Defender Agency 900 West 5th #200 Anchorage, AK 99501 POSITION STATEMENT: Commented on SB 5 Ms. Anne Carpeneti Assistant Attorney General Department of Law PO Box 110300 Juneau, AK 99801-0300 POSITION STATEMENT: Commented on SB 5 Senator Drue Pearce State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented SSSB 5 Ms. Susan Fischetti 10336 Stewart Drive Eagle River, AK 99577 POSITION STATEMENT: Supported SB 69 Mr. Ken Jacobus 425 G Street #920 Anchorage, AK 99501 POSITION STATEMENT: Opposed SB 69 Mr. Jim Baldwin Assistant Attorney General Department of Law PO Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Opposed SB 69 Senator Jerry Ward State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented SB 69 ACTION NARRATIVE TAPE 99-12, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:37 and announced SB 5 would be the first order of business. SB 5 - MISPRISION OF FELONY SENATOR DAVE DONLEY presented a work draft for SB 5 that establishes the crime of misprision and makes it applicable to unclassified felonies and felony crimes against a person. The bill makes the crime of misprision a class A or B felony, depending on the severity of the crime witnessed. This version adds an affirmative defense for witnesses who do not report a crime in a timely manner out of fear they may be in danger if they do so, and specifies that the state need not prove a person knew the class of felony they witnessed in order to be prosecuted under this statute. Number 052 SENATOR DONLEY moved the adoption of work draft M(Luckhaupt) as the committee substitute. Without objection, the committee substitute was adopted. MR. BLAIR MCCUNE, Deputy Director of the Alaska Public Defender Agency, said the bill conflicts with the privilege of self- incrimination, which gives any person who fears they may be charged with an offense the right not to report the crime. SB 5 may result in requiring a person who has nothing to do with an offense being required to report it, while a person with some involvement in a crime would not. MR. MCCUNE proposed Alaska has other statutes, such as "hindering prosecution," with which to prosecute a person who renders assistance to a criminal by providing transportation, money, or concealment. Number 100 SENATOR PEARCE asked how Alaska would prosecute the Nevada case in which a young man witnessed, but did not participate in a crime. MR. MCCUNE replied in that case the young man provided transportation to the perpetrator. CHAIRMAN TAYLOR expressed concern that the intent of this bill is to criminalize behavior similar to "abetting" a criminal, or being an accessory to a crime, without actually participating in the crime. MR. MCCUNE explained to aid or abet a criminal involves complicity in the crime and criminal intent. A person convicted as an accessory can be punished in the same manner as the principal perpetrator. CHAIRMAN TAYLOR asked if the hindering prosecution statute requires intent and MR. MCCUNE replied it requires intent to hinder the apprehension or prosecution of a criminal. CHAIRMAN TAYLOR commented that the level of intent in SB 5 is one level lower than that. SENATOR PEARCE indicated her concern with situations of abused women and children where there is knowledge and implicit support of the abuse by family and community members. Part of her intent with SB 5 is to see these cases prosecuted. She said she has no answer to the self-incrimination question, but this is a widespread problem within Alaska and, "I'm not convinced that we could use 'hindering prosecution' for the sorts of cases that I am thinking about . . . " SENATOR PEARCE remarked that it is unfair to allow children to be abused because of a protection from self-incrimination. "I don't care what the Constitution says in this particular case - it doesn't work for me in this case." CHAIRMAN TAYLOR said authorities are often constrained by a pattern within dysfunctional families that keeps abuse from being reported. He asked, "Are we going to be imprisoning moms because they didn't go forward earlier?" SENATOR PEARCE replied the language on lines 12-14 of page 1 was inserted to provide an affirmative defense for most of those cases, but it does not cover cases in which both parents should be prosecuted. She said, "If either parent stands by and watches while the other parent abuses the child, as far as I am concerned, both parents should be prosecuted in some manner." CHAIRMAN TAYLOR mentioned SENATOR HALFORD'S concern about personal safety. SENATOR PEARCE said language had been inserted into the bill to deal with that "fear factor." Number 288 SENATOR HALFORD explained there is another factor; the children themselves do not come forward for fear of losing one of their parents, despite how deviant that parent may be. He said he did not want to force the loss of both parents or compel the family to go to court, instead of getting counseling. SENATOR PEARCE did not dispute this point, but said, "We have to put some faith in the prosecutors' . . . ability to decide which cases should be prosecuted and which ones shouldn't." She said SB 5 would provide a method to prosecute those who should be prosecuted. SENATOR HALFORD concluded this is a difficult area of discussion. SENATOR PEARCE agreed this is a difficult subject, but emphasized she appreciated having a full discussion on the bill. She proposed that in some cases those who should be prosecuted are family members but not necessarily the parents of the abused child. CHAIRMAN TAYLOR asked how the bill will affect counselors, preachers, police officers and school teachers; the bill has a wide sweep. SENATOR HALFORD said the bill only exempts lawyers. Number 365 MS. ANNE CARPENETI, representing the criminal division of the Department of Law, thanked the committee for the work done on the bill in response to the concerns of the Department. MS. CARPENETI reported the bill is still too broad and requires victims of rape and domestic violence as well as spouses of child abusers to report these crimes or be subject to a criminal violation. The bill forces parents to report spouses to the criminal justice system, rather than allowing them the choice to pursue counseling or seek another solution. She suggested limiting the offenses covered by SB 5 to murder, attempted murder, kidnaping, arson and maybe first-degree sexual abuse of a minor. The nature of these crimes offset some of the concerns raised because these are the most serious crimes where victims are unable to be heard. SENATOR TORGERSON asked how a victim of domestic violence or rape could be prosecuted if the victim's testimony would be the evidence of the crime. MS. CARPENETI said a person is required to report an offense unless he or she is the perpetrator and therefore covered by the right against self-incrimination. SENATOR HALFORD said parents who know their child is being abused are probably violating present law but they are protected by the privilege against self- incrimination. Consequently, "If they are the good parent, who didn't know and now finds out and goes to a psychological professional . . . and takes their advice . . . you can't claim self incrimination - so the self-incrimination only protects the guilty; it doesn't protect the parent who is truly operating in the best interests of the child." SENATOR PEARCE testified the intent of SB 5 is not to compel a rape victim to make a report, but to require a witness of such a crime report it. SENATOR PEARCE suggested there has to be a way to get at recidivist pedophiles and protect "the next child, or the next child or the next child." She said it seems the committee is considering sexual abuse of a child by a non-parent a worse crime than sexual abuse by a parent. She does not think anyone subscribes to this view but said, "That is what happens if we don't somehow deal with the parent - they are just as culpable . . . " Number 479 SENATOR HALFORD cited a real life example to illustrate his point that, "it is very, very difficult to make a parent take an action against their child for the protection of the future." SENATOR DONLEY asked if deleting the portion of SB 5 relating to class B felonies would give the bill a better focus. ANNE CARPENETI said yes. Number 525 SENATOR DONLEY moved Amendment #1: insert the phrase, "other than a victim" on page 1, line 5 after the word "person." After some discussion, he modified his motion to insert the phrase after the word "person" on line 4, page 1. Without objection, the amendment was adopted. SENATOR DONLEY moved Amendment #2: delete from page 1, line 6, and page 1, line 8, and page 2, line 7 "or class B felony," to focus the bill on very serious crimes. Number 557 SENATOR HALFORD suggested that the bill should specify the exact crimes covered rather than use the statutory reference. He asked how many crimes would fall under the scope of the bill. After discussion, the consensus of the sponsor, the Department and the committee was that the list of crimes would not be too long to specifically name them in the text of the bill. SENATOR PEARCE stated that her concerns would be covered if the bill encompassed unclassified felonies. TAPE 99-12, SIDE B Number 592 SENATOR DONLEY withdrew Amendment #2. He suggested the committee consider a conceptual amendment to limit the bill to unclassified felonies and first-degree arson, and list the offenses specifically in the text of the bill. SENATOR HALFORD moved SENATOR DONLEY's idea as Amendment #3. Without objection, Amendment #3 was adopted. SENATOR ELLIS asked how the new requirement for "timely" reporting in the bill would compare with the previous requirement for immediate reporting. SENATOR DONLEY observed that the requirement for timely reporting allows for a more flexible application. MS. CARPENETI agreed. Number 553 CHAIRMAN TAYLOR reflected that the crime created in this bill is difficult to differentiate from conspiracy and accessory. He said the committee will work on another draft of SB 5. CHAIRMAN TAYLOR announced SB 69 was up for consideration. SB 69-ADVISORY VOTE ON ELECTED AG SENATOR JERRY WARD, prime sponsor of SB 69, explained the bill allows a vote of the people of Alaska to decide whether the attorney general (AG) should be an elected position. SENATOR WARD said the attorney general now works at the pleasure of the Governor, not for the people. SENATOR WARD stated that the current Attorney General made a political decision about the Babbitt subsistence case. He commented, "I don't mind those Governors having Bruce Bothelo as their Attorney General - that's fine, but I think the people should have an attorney general that represents them and the Constitution - not for political consideration." SENATOR WARD testified that he has done research and determined that all but five states have an elected attorney general. SENATOR HALFORD said he did not think SENATOR WARD'S objective could be accomplished by an amendment. He asked, "Why don't we do this by resolution and forget about the advisory vote - let the people vote on the issue." SENATOR WARD agreed it could be done that way, but he prefers for the debate to happen first. CHAIRMAN TAYLOR asked if SENATOR WARD would be willing to sponsor a committee substitute that followed SENATOR HALFORD'S suggestion. He said he would not be opposed to that. SENATOR HALFORD commented that a bill cannot be changed into a resolution in committee. Number 484 SENATOR WARD reported there is a bill to amend the Constitution "coming in from the other side." He then said, "I do want to have the debate; I can't wait 'til the current Attorney General debates with our current Judiciary Chairman on whether or not this should pass in a public arena - I think it's going to be quite interesting." SENATOR DONLEY suggested the bill contain a contingent effective date so it could serve as a fall back in case a resolution does not pass. SENATOR HALFORD noted the vote required to override a veto is the same vote required to approve a resolution. SENATOR WARD agreed and said, "I thought there were four extra votes for this . . . We are two separate bodies but I have counted and I feel very good about the people being able to debate this in an election process - a lot of people looking forward to that." MS. SUSAN FISCHETTI of Eagle River testified in support of SB 69. MS. FISCHETTI said it is important to bring Alaska into line with other states. As the sponsor of "the English initiative," she believes an advisory vote would be fair and popular and ensure the attorney general is more accountable to the people of Alaska. Number 448 MR. KEN JACOBUS opposed SB 69 but supports the idea of an elected attorney general as another check and balance within the executive branch. An elected position would give people another avenue of direct input in government, encourage participation in the political process, and result in decisions involving more compromise. MR. JACOBUS agreed with SENATOR HALFORD and encouraged the committee, "If you have the votes to put a constitutional amendment on the ballot, just put the constitutional amendment on the ballot and let the people debate it once rather than debating it twice." Number 423 MR. JIM BALDWIN, representing the Office of the Attorney General, stated the Administration does not support the bill. MR. BALDWIN did not disagree to debate the issue, but said the issue needs to be examined "head on" to see if it is in fact a good idea. According to MR. BALDWIN, the framers of Alaska's Constitution opposed the proliferation of elected offices; and believed the governor should be responsible for decision-making, not "lay off the blame for certain decisions on his subordinates . . . that's what we have now." CHAIRMAN TAYLOR asked how a person becomes attorney general and MR. BALDWIN said they are appointed by the governor and confirmed by the legislature. CHAIRMAN TAYLOR replied that is why we have not had an attorney general for four years. "He has never stood for confirmation . . . and he was required to do so . . . in direct violation, in my opinion, of the Constitution of this state. Now who do we in the Legislature turn to to enforce the Constitution of this state?" MR. BALDWIN argued that this Attorney General was confirmed by the Legislature. SENATOR HALFORD informed MR. BALDWIN he would like a written opinion on whether the Administration believes the election of the attorney general constitutes an amendment or a revision to the constitution. MR. BALDWIN replied he would convey that request. Number 352 MR. BALDWIN asserted the approach in SB 69 is not a good one. He speculated that if the 45 governors with elected attorneys general were polled, they would unanimously prefer appointed attorneys general. MR. BALDWIN urged the committee to consider the problems that occur when there is a political split between the attorney general and the governor/lieutenant governor. CHAIRMAN TAYLOR explained the Judiciary Committee is charged with reviewing proposed legislation for constitutional impacts and problems. He stated he has never before supported this measure, but the forefathers of Alaska "never would have believed we could have elected a Governor so corrupt that he would abuse the Constitution for his own political purposes." CHAIRMAN TAYLOR listed the Babbitt case, the Alaska Public Safety Information Network "scandal" and the lack of any state prosecutions in the World Plus ponzi scheme as examples where "politics has been allowed to prevail over our Constitution to the detriment of our citizens, by this Attorney General. He wanted the appointment so much that he was willing to prostitute the law and the Constitution in the way he has carried it out." CHAIRMAN TAYLOR stated this is the second Administration under which Attorney General Bothelo has refused to stand for confirmation. CHAIRMAN TAYLOR said the Legislature does not have standing in court to protect our state's rights. He concluded, "If, for any political reason, any political benefit, the decision is made on the third floor that our Constitution is to be disregarded, that our state is not to be protected . . . they (statehood rights) will not be protected." Number 268 SENATOR DONLEY asked if any states have changed from an elected attorney general to an appointed one, or vice-versa. MR. BALDWIN offered to research the question and let the committee know. SENATOR DONLEY suggested the committee should be more concerned with what the people, rather than the Governor, feel is good for the government. MR. BALDWIN said presumably the Governor, as a statewide elected official, knows the will of the public. SENATOR DONLEY said it seems the best way to find out is to take a vote. MR. BALDWIN replied taking a vote will determine what the people who turn out to vote want, not what all the people of the state want. SENATOR HALFORD asked MR. BALDWIN if he advocates returning to a more limited franchise. Number 204 SENATOR DONLEY remarked it is incredibly inconsistent of this Administration to oppose a vote on a straightforward proposition like this and to "continue the mantra of 'let the people vote' when it comes to a very complex issue like subsistence." MR. BALDWIN argued this is not a simple proposal that can be conveyed to voters via a short ballot proposition. MR. BALDWIN concluded he does not want to debate whether the people should vote on electing an attorney general, but rather that the election of an attorney general is a bad idea. Number 128 MR. AV GROSS, former Attorney General for Alaska, expressed an obligation to the office to testify on this issue. MR. GROSS agreed that most states have elected attorneys general, but said, unlike Alaska's AG, elected AG's do not prosecute crimes, control the criminal mechanism, or argue cases for departments of state. They have limited powers or, basically, no power at all. MR. GROSS proposed appointed AG's are lawyers who have an interest in politics and elected AG's are politicians who are lawyers. MR. GROSS said the election of an attorney general results in an adversarial relationship between the governor and the attorney general because the attorney general is likely to have political aspirations and the governor stands in the way. The AG often makes trouble for the governor and initiates lawsuits against him or her. MR. GROSS suggested such an adversarial situation does not work; if the governor is the sole person responsible to the people for how the executive branch of government works, the attorney general should be responsible for his or her functions as are other department heads. MR. GROSS emphasized the attorney general in Alaska can accomplish much more than AG's in other states, such as introducing uniform sentencing requirements. The AG runs a "huge law firm" and most of his functions have nothing to do with politics. Occasionally, a very political issue will come up and the AG will be called to advise the governor on the issue. As with any other client, noted MR. GROSS, the AG does the governor no favor to tell anything less than the whole truth. "If you advise the governor badly, it comes back to bite you in the worst way." TAPE 99-13, SIDE A Number 001 MR. GROSS proposed if the AG were elected, the governor would take no responsibility for crime or the legal actions of departments of state, "Which, right now, you can stick 'em with." This is what the framers wanted. MR. GROSS conceded there have been politically motivated AG's, just as there have been crooked legislators and bad commissioners. He maintained elected attorneys general would be as bad as appointed AGs; they would be selected more on their ability to get a majority vote than their reputation as attorneys. Number 044 MR. GROSS said it is no secret that people will want to elect the attorney general. He recalled how he had opposed applying the Open Meetings Act to the Legislature because he knew it would pass by an overwhelming vote, but he also knew; "The legislature needed, sometimes, a private debate . . . moments of quiet discussion away from the cameras . . . it's not politically correct but it is true." He claimed the issues are similar. MR. GROSS said the attorney general acts like another commissioner, and there is no more reason to elect the AG than there is to elect the Commissioner of Natural Resources. CHAIRMAN TAYLOR argued that the AG is not accountable to the Legislature or the people and therefore the only recourse left to the Legislature is impeachment. Number 087 MR. GROSS commented that the legislature can file suit against a decision with which it disagrees, which in fact, happened while he was attorney general. MR. GROSS conceded that past attorneys general have made stupid mistakes, but claimed they are only lawyers who enjoy public service. He illustrated an example of "the most political instance in which the attorney general was ever involved." At the end of this case, it was shown that the attorney general's office had worked in a non-political fashion. "It was a credit to the Department of Law." MR. GROSS said he hoped the Legislature wouldn't "let your irritation over a particular decision or a particular action by one person color your thinking so much you are willing to literally change the basic structure of government." Number 153 CHAIRMAN TAYLOR stated he has the utmost respect for MR. GROSS, and he has defended his position (for an appointed attorney general) for the past 13 years, but he can no longer do so due to the three examples he cited, which were "totally motivated by politics." MR. GROSS said he understood CHAIRMAN TAYLOR'S anger, but said making the attorney general run for office won't make it a less political office. CHAIRMAN TAYLOR replied he knows no other way to prevent "that type of abuse from occurring in the future." MR. GROSS responded that the governor would fire an attorney general who made a decision contrary to the popular will. CHAIRMAN TAYLOR replied, "I've not seen any concern about ethical standards, or anything else, so far, up there . . ." MR. GROSS stated "It is not a good idea to change the basic nature of the system because you are angry or upset about a particular action by someone who holds the office . . . change the person, don't change the office." CHAIRMAN TAYLOR replied, "If there were a way to do that, I would . . . unfortunately, there is not." MR. GROSS concluded his testimony by saying there have been bad people who have served as attorneys general and he thinks the people who serve will be worse if they are forced to seek the office through an election. CHAIRMAN TAYLOR thanked MR. GROSS for his testimony. With no further testimony, CHAIRMAN TAYLOR adjourned the meeting at 3:27 p.m.