Legislature(1999 - 2000)

03/17/1999 01:45 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
              SENATE JUDICIARY COMMITTEE                                                                                        
                    March 17, 1999                                                                                              
                      1:45 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                                                                                                              
SENATE BILL NO. 1                                                                                                               
"An Act relating to good time and release on mandatory parole."                                                                 
     -MOVED CSSB 1(JUD) OUT OF COMMITTEE                                                                                        
SENATE BILL NO. 96                                                                                                              
"An Act relating to access to criminal history records and to                                                                   
revocation of or failure to renew certain licenses based on                                                                     
criminal conduct or alleged criminal conduct; and providing for an                                                              
effective date."                                                                                                                
     -HEARD AND HELD                                                                                                            
SENATE BILL NO. 99                                                                                                              
"An Act to clarify the meaning of 'decennial census of the United                                                               
States' in Article VI, Constitution of the State of Alaska, and to                                                              
prevent discrimination in the redistricting of the house of                                                                     
representatives and the senate."                                                                                                
     -MOVED SB 99 OUT OF COMMITTEE                                                                                              
SENATE BILL NO. 100                                                                                                             
"An Act relating to the payment by indigent persons for legal                                                                   
services and related costs."                                                                                                    
     -MOVED CSSB 100(JUD) OUT OF COMMITTEE                                                                                      
Confirmation Hearing for Barbara Miklos to the Alaska Bar                                                                       
Confirmation Hearing for Diane Brown to the Commission on Judicial                                                              
PREVIOUS SENATE COMMITTEE ACTION                                                                                                
SB 1 - See Judiciary Committee minutes dated 3-15-99.                                                                           
SB 96 - See Judiciary Committee minutes dated 3-15-99.                                                                          
SB 99 - No previous action to report.                                                                                           
SB 100 - See Judiciary Committee minutes dated 3-15-99.                                                                         
WITNESS REGISTER                                                                                                                
Ms. Barbara Miklos                                                                                                              
3208 Greenland Drive                                                                                                            
Anchorage, AK 99517                                                                                                             
POSITION STATEMENT:  Stood for Confirmation                                                                                     
Mr. Bruce Richards, Program Coordinator                                                                                         
Department of Corrections                                                                                                       
240 Main Street ste. 700                                                                                                        
Juneau, AK 99801                                                                                                                
POSITION STATEMENT:  Testified on SB 1                                                                                          
Mr. Michael Stark, Assistant Attorney General                                                                                   
Department of Law                                                                                                               
PO Box 10300                                                                                                                    
Juneau, AK 99811-0300                                                                                                           
POSITION STATEMENT:  Testified on SB 1                                                                                          
Mr. Tom Moffatt                                                                                                                 
Staff to Senator Tim Kelly                                                                                                      
State Capitol                                                                                                                   
Juneau, Ak 99801-1182                                                                                                           
POSITION STATEMENT:   Presented SB 99                                                                                           
Senator Tim Kelly                                                                                                               
State Capitol                                                                                                                   
Juneau, Ak 99801-1182                                                                                                           
POSITION STATEMENT:  Sponsor of SB 99                                                                                           
Mr. Jim Baldwin, Assistant Attorney General                                                                                     
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK 99811-0300                                                                                                           
POSITION STATEMENT:  Opposed SB 99                                                                                              
Mr. Doug Wooliver, Administrative Attorney                                                                                      
Alaska Court System                                                                                                             
820 West 4th Avenue                                                                                                             
Anchorage, AK 99501-2005                                                                                                        
POSITION STATEMENT:  Testified on SB 100                                                                                        
ACTION NARRATIVE                                                                                                                
TAPE 99-19, SIDE A                                                                                                              
Number 001                                                                                                                      
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                                                                 
order at 1:45 and announced the committee would first take up the                                                               
confirmation hearings.                                                                                                          
The first candidate for confirmation was MS. BARBARA MIKLOS to the                                                              
Alaska Bar Association (ABA). CHAIRMAN TAYLOR thanked MS. MIKLOS                                                                
for her years of public service and her willingness to continue to                                                              
MS. MIKLOS stated she is a proud, long time resident of Alaska who                                                              
has traveled extensively in state and appreciates the state's                                                                   
Number 010                                                                                                                      
SENATOR DONLEY declared he, as a member of the Alaska Bar, has a                                                                
conflict of interest. He moved to be excused from voting on the                                                                 
confirmation hearings. There was objection from SENATOR TORGERSON,                                                              
and SENATOR DONLEY's motion was denied.                                                                                         
SENATOR TORGERSON moved and asked unanimous consent that he be                                                                  
excused from the confirmation hearings also. There was objection                                                                
from SENATOR ELLIS and SENATOR TORGERSON's motion was denied.                                                                   
CHAIRMAN TAYLOR served notice of his conflict of interest, as a                                                                 
member of the Alaska Bar. There was objection from SENATOR DONLEY                                                               
and CHAIRMAN TAYLOR's motion was denied.                                                                                        
Number 035                                                                                                                      
CHAIRMAN TAYLOR asked MS. MIKLOS how long she had served on the                                                                 
Board of the Alaska Bar and if she had any concerns to report to                                                                
the committee. MS. MIKLOS said she has served on the Board for                                                                  
years and, as a public member, she has been both proud and                                                                      
frustrated by the process. She said the Bar often has to make hard                                                              
decisions and she is surprised by the level of seriousness of                                                                   
members and the conscientious manner in which they conduct                                                                      
Number 070                                                                                                                      
SENATOR TORGERSON stated he had noticed on MS. MIKLOS's resume she                                                              
is the Director of the Child Support Enforcement Division. He asked                                                             
if this has ever come in conflict with her role as an ABA Board                                                                 
member. MS. MIKLOS said only one child support issue has been                                                                   
before the Bar since she has served and she did not attend that                                                                 
meeting.  She said if she had, she would have recused herself.                                                                  
SENATOR DONLEY asked MS. MIKLOS what role the Board plays in                                                                    
directing the budget of the Bar. MS. MIKLOS replied the Board                                                                   
decides the level of the budget, and stated she has personally                                                                  
advocated  budget reductions.                                                                                                   
SENATOR DONLEY said he has been very frustrated with the Bar over                                                               
several issues. CHAIRMAN TAYLOR seconded his comments.                                                                          
Number 147                                                                                                                      
SENATOR TORGERSON moved that the committee forward the name of MS.                                                              
MIKLOS to the full body for confirmation. Without objection, it was                                                             
so ordered.                                                                                                                     
CHAIRMAN TAYLOR announced next was MS. DIANNE BROWN, candidate for                                                              
confirmation to the Judicial Conduct Commission.                                                                                
MS. BROWN stated she has served on the Judicial Conduct Commission                                                              
(JCC) since 1996 and has 20 years experience in law enforcement.                                                                
She said she takes her role on the Commission very seriously and                                                                
she appreciates being considered for confirmation.                                                                              
CHAIRMAN TAYLOR thanked MS. BROWN for her years of service as an                                                                
Alaska State Trooper.                                                                                                           
SENATOR TORGERSON observed the JCC holds private meetings. He asked                                                             
MS. BROWN if she thought these meetings should be public. MS. BROWN                                                             
explained the JCC conducts both public and private sessions. The                                                                
Commission conducts investigations and holds private discussions of                                                             
possible judicial misconduct.                                                                                                   
SENATOR TORGERSON asked if the JCC's decisions are public. MS.                                                                  
BROWN replied all JCC decisions are referred to the Supreme Court.                                                              
SENATOR TORGERSON stated he knows of cases in which decisions have                                                              
not been made public. MS. BROWN asked if SENATOR TORGERSON was                                                                  
referring to decisions of the Judicial Conduct Commission or the                                                                
Judicial Council. SENATOR TORGERSON replied, "Both of you operate                                                               
in a cloud of secrecy as far as I'm concerned, and I don't think                                                                
much of it."                                                                                                                    
Number 220                                                                                                                      
CHAIRMAN TAYLOR recalled that the JCC does have the option of                                                                   
making a case public as part of the censure they impose. MS. BROWN                                                              
SENATOR DONLEY restated SENATOR TORGERSON's question, asking if MS.                                                             
BROWN feels the process should be more open to the public. MS.                                                                  
BROWN replied no, not at the time the JCC receives a complaint; an                                                              
investigation should first take place. SENATOR DONLEY asked if the                                                              
matter should be public once guilt is established. MS. BROWN said                                                               
that depends on the violation.                                                                                                  
SENATOR DONLEY noted the voters in Alaska are asked to confirm                                                                  
judges on the ballot. He asked how they can make an educated                                                                    
decision without information on judicial misconduct from the JCC.                                                               
MS. BROWN explained that individuals making charges receive                                                                     
information about the dispensation of a case, but that information                                                              
is not always made available to the general public. SENATOR DONLEY                                                              
said this works to protect judges and the status quo; MS. BROWN                                                                 
Number 260                                                                                                                      
SENATOR DONLEY asked how many judges had disciplinary actions taken                                                             
against them in 1998. MS. BROWN did not recall, but guessed it was                                                              
no more than 10. SENATOR DONLEY said he has seen responses from the                                                             
JCC that confirm that action has been taken, but does not reveal                                                                
what action has been taken. He contended there should be more of an                                                             
effort to promote public information from the public members on the                                                             
Commission. He reminded MS. BROWN that public censure is one of the                                                             
tools of the Commission and it should be used.                                                                                  
CHAIRMAN TAYLOR concurred that public notice is one of the "weapons                                                             
within the arsenal" of the JCC. He clarified it is the                                                                          
responsibility of the Judicial Council to inform the public before                                                              
an election of their position on judicial officers appearing on the                                                             
ballot for confirmation. CHAIRMAN TAYLOR said he has been critical                                                              
of the Judicial Council for failure to do this.                                                                                 
SENATOR DONLEY asked MS. BROWN if the JCC informs the Judicial                                                                  
Council of disciplinary findings against judges. MS. BROWN was not                                                              
Number 355                                                                                                                      
SENATOR TORGERSON reminded MS. BROWN she is on the JCC to represent                                                             
the public. He stated, "I just hope that you would . . .uphold the                                                              
rights of the public in making sure this information is more                                                                    
available to the public . . ." He said he believes that judges                                                                  
should be held to the same standard imposed on the Legislature. MS.                                                             
BROWN assured the committee that all complaints received by the JCC                                                             
are taken seriously and thoroughly investigated.                                                                                
Number 387                                                                                                                      
SENATOR ELLIS moved that the committee forward MS. BROWN's name to                                                              
the full body for confirmation. SENATOR DONLEY objected, saying "I                                                              
really would like my public representative on this particular                                                                   
commission to have a better sense of the need for the public to get                                                             
the greatest amount of information possible to make educated                                                                    
decisions about the retention of judges." With objection, MS.                                                                   
BROWN's name moves from committee to the full Senate for                                                                        
CHAIRMAN TAYLOR announced SB 99 would be the next order of                                                                      
           SB  99-REDISTRICTING BOARD/CENSUS FIGURES                                                                            
MR. TOM MOFFATT, staff to Senator Tim Kelly, presented SB 99. MR.                                                               
MOFFATT stated SB 99 will mandate the use of "actual count" census                                                              
figures for reapportionment rather than numbers derived from                                                                    
statistical models in an effort to stop discrimination against                                                                  
members of the military.                                                                                                        
MR. MOFFATT testified that prior reapportionment boards have either                                                             
assigned a percentage figure to military members or ignored them                                                                
completely. SB 99 will abolish this type of "occupational                                                                       
discrimination" and establish a statutory bar that will assure                                                                  
members of the service are "no longer treated as second-class                                                                   
MR. MOFFATT explained SB 99 will clarify that only numbers derived                                                              
from an actual headcount will be used for redistricting. Figures                                                                
resulting from sampling or estimates will be prohibited by statute.                                                             
This will facilitate the work of the Reapportionment Board and                                                                  
avoid litigation, according to MR. MOFFATT.                                                                                     
MR. MOFFATT informed the committee the sponsor had received a                                                                   
"rather amusing" fiscal note from the Department of Law. He  said,                                                              
"The fiscal note should be, we would hope would be, disregarded."                                                               
Number 463                                                                                                                      
SENATOR ELLIS said he appreciated MR. MOFFATT clarifying his remark                                                             
"to make it clear that Al Vezey and Tuckerman Babcock didn't really                                                             
undercount the military folks in the State of Alaska - some people                                                              
got the impression they counted them several times."                                                                            
SENATOR ELLIS asked if the issue isn't residency, rather than job                                                               
class. MR. MOFFATT replied,                                                                                                     
      "We would contend that every human being in Alaska,                                                                       
     whether this is a homeless person on 4th Ave . . .                                                                         
     whatever their race or color, whatever their status, they                                                                  
     deserve equal representation; they deserve to be actually                                                                  
     counted; . . . not to be counted twice or thrice, not to                                                                   
     be discounted, but if they are counted, they should be                                                                     
     counted as a human being regardless of their status and                                                                    
     represented equally with every other person."                                                                              
MR. MOFFATT insisted that the traditional U.S. census has counted                                                               
all people including the homeless and transients. SENATOR ELLIS                                                                 
asked if MR. MOFFATT sees a state interest in knowing who is an                                                                 
actual resident of Alaska. MR. MOFFATT said once you start down                                                                 
that "slippery slope" it is difficult to stop.  He prefers to treat                                                             
all people equally, especially for the purposes of representation.                                                              
CHAIRMAN TAYLOR noted the bill's sponsor, Senator Tim Kelly, had                                                                
arrived and asked if he cared to make any comments on the bill.                                                                 
SENATOR KELLY remarked, "I have no trust in Bill Clinton or his                                                                 
administration and I don't want to be counting any Clinton ghosts                                                               
. . ."                                                                                                                          
Number 505                                                                                                                      
MR. JIM BALDWIN, representing the Attorney General's Office, raised                                                             
two issues in regard to SB 99. First, MR. BALDWIN proposed that                                                                 
"unless we get another million and a half people here", Alaska has                                                              
no stake in the apportionment of the U.S. Congress. In 2000, the                                                                
census bureau may come out with two numbers: one based on                                                                       
enumeration and another based on statistical sampling. Statistical                                                              
sampling numbers are intended to remedy an undercount, such as the                                                              
huge undercount of the "worst census ever in the history of this                                                                
country" in 1990. MR. BALDWIN suggested children, renters and the                                                               
homeless are undercounted due to the enumeration technique. MR.                                                                 
BALDWIN concluded that the decision of the U.S. Supreme Court on                                                                
this question is still unclear and the issue may be decided on a                                                                
national level before the 2000 census.                                                                                          
MR. BALDWIN explained the fiscal note is due to a survey the                                                                    
Department of Law will have to conduct if they wish this bill to                                                                
receive pre-clearance from the U.S. Justice Department, under the                                                               
Voting Rights Act. The survey will serve to show the Justice                                                                    
Department that the legislation does not discriminate against                                                                   
minority voters. MR. BALDWIN said the only other option is to seek                                                              
pre-clearance from a three-judge panel in the District of Colombia.                                                             
MR. BALDWIN said military reductions have changed Alaska since                                                                  
1990, and it is likely retrogression has occurred. Under the Voting                                                             
Rights Act, the State has to justify that no discriminatory effect                                                              
was the cause of this retrogression. MR. BALDWIN stated, "These                                                                 
kinds of bills just don't come cheaply . . . when you change these                                                              
kind of laws that affect voting . . . we need to have the financing                                                             
and the tools to be able to deal with that." MR. BALDWIN said the                                                               
fiscal note reflects the cost of the legislation, not any desire to                                                             
obstruct the legislation.                                                                                                       
Number 580                                                                                                                      
CHAIRMAN TAYLOR asked if some cases brought under the Voting Rights                                                             
Act had been removed by judicial decision. MR. BALDWIN said there                                                               
have been cases in which the Justice Department has been                                                                        
criticized, but, he said the Justice Department appears to be                                                                   
CHAIRMAN TAYLOR asked if the 2000 census will still be required to                                                              
consider cohesive tribal and linguistic groupings to be sure they                                                               
have an advantage over other people in the same district. MR.                                                                   
BALDWIN said he might phrase it differently, but the interests of                                                               
minority voters would have to be considered in the reapportionment                                                              
TAPE 99-19, Side B                                                                                                              
Number 593                                                                                                                      
SENATOR KELLY commented SB 99 mandates the enumeration count be                                                                 
used for apportionment, it does not mandate its use for other                                                                   
Number 586                                                                                                                      
SENATOR TORGERSON moved SB 99 from committee with individual                                                                    
recommendations. SENATOR ELLIS objected. Roll was called: voting                                                                
yea were SENATOR DONLEY, SENATOR TORGERSON and CHAIRMAN TAYLOR.                                                                 
SENATOR ELLIS voted nay. So SB 99 moved from committee with                                                                     
individual recommendations.                                                                                                     
            SB 100-REIMBURSEMENT FOR PUBLIC DEFENDER                                                                            
Number 580                                                                                                                      
SENATOR DONLEY moved the adoption of a committee substitute for SB
100. SENATOR ELLIS objected for the purpose of an explanation of                                                                
the changes from the previous version of the bill.                                                                              
MR. DOUG WOOLIVER, representing the Alaska Court System, explained                                                              
the amendments adopted in the previous meeting.                                                                                 
SENATOR ELLIS asked, "What are indigent persons losing, from what                                                               
they might have now, in terms of rights to representation and                                                                   
coverage of legal costs?" SENATOR DONLEY said the Public Defender                                                               
should answer that question.                                                                                                    
Number 530                                                                                                                      
CHAIRMAN TAYLOR noted that BLAIR MCCUNE, the Deputy Director of the                                                             
Public Defender Agency, sent a written response to the committee.                                                               
He included the language that requires the public defender to                                                                   
represent a client to the same extent a private attorney would                                                                  
represent a paying client. CHAIRMAN TAYLOR said this standard has                                                               
been used to justify the retainer of more than one private attorney                                                             
(at state expense) on behalf of a public defender client.                                                                       
SENATOR ELLIS concluded the goal of this language is to specify the                                                             
standard of representation offered by the Office of the Public                                                                  
Defender and to make the standard cost less. SENATOR DONLEY replied                                                             
that is correct. SENATOR ELLIS asked if legislation sponsored by                                                                
Representative Brian Porter that passed through the committee last                                                              
year did not solve this problem. SENATOR DONLEY remarked,                                                                       
"Apparently not."                                                                                                               
Number 505                                                                                                                      
SENATOR TORGERSON moved CSSB 100(JUD) out of committee with                                                                     
individual recommendations and the accompanying fiscal notes.                                                                   
SENATOR ELLIS objected. Roll was called: voting yea were SENATOR                                                                
DONLEY, SENATOR TORGERSON, SENATOR HALFORD and CHAIRMAN TAYLOR.                                                                 
SENATOR ELLIS voted nay. So, CSSB 100(JUD) moved from committee                                                                 
with individual recommendations.                                                                                                
          SB 1-NO MANDATORY PAROLE RELEASE WITHOUT GED                                                                          
SENATOR DONLEY explained the proposed committee substitute                                                                      
addresses SENATOR HALFORD's concern about people who may be unable                                                              
to attain educational requirements. The bill allows the                                                                         
Commissioner of the Department of Corrections discretion to certify                                                             
that it is not reasonable for certain people to meet the standard.                                                              
Those people would then be excused from the requirements. The                                                                   
committee substitute also includes a provision that makes a person                                                              
ineligible for the program where the program is not offered by the                                                              
Number 468                                                                                                                      
SENATOR HALFORD moved the adoption of the committee substitute for                                                              
SB 1. Without objection, the committee substitute was adopted.                                                                  
MR. BRUCE RICHARDS, representing the Department of Corrections,                                                                 
said the Department has a minor technical amendment to the                                                                      
committee substitute. The Department would also like the committee                                                              
to consider making the GED a mandatory requirement of parole,                                                                   
rather than a condition for receiving good time. This would remove                                                              
the burden of providing the program from the Department and put the                                                             
responsibility and cost of the program on the offender. MR.                                                                     
RICHARDS said the Department would encourage people to start the                                                                
program while incarcerated and inform them that attaining a GED                                                                 
would be a mandatory condition of parole. This would reduce the                                                                 
Department of Corrections' fiscal note and is likely to also reduce                                                             
the fiscal note from the Department of Law, while still                                                                         
accomplishing the goal of increasing the educational level of                                                                   
Number 427                                                                                                                      
MR. MICHAEL STARK, representing the Department of Law, testified                                                                
the Department supports MR. RICHARDS' idea as a less costly and                                                                 
problematic way to accomplish the goals of SB 99.                                                                               
MR. STARK suggested on page 2 of the bill, lines 1 and 25, the word                                                             
"certify" be replaced with the word "determine". He explained                                                                   
certify connotes some kind of official action that does not exist.                                                              
He also suggested a change on page 3, line 10 and 11: make the                                                                  
effective date apply to "persons whose crimes are committed on or                                                               
after the effective date. He explained the court now bases  its                                                                 
analysis on the date a person's crime is committed, not the date of                                                             
Number 400                                                                                                                      
SENATOR DONLEY moved, as Amendment #1, to insert the word                                                                       
"committed" after the word "crimes" on line 11, page 3. Without                                                                 
objection, Amendment #1 was adopted.                                                                                            
SENATOR DONLEY moved, as Amendment #2, replacing the word                                                                       
"certifies" on page 2, lines 1 and 25, with the word "determines".                                                              
Without objection, Amendment #2 was adopted.                                                                                    
Number 393                                                                                                                      
SENATOR ELLIS asked for an explanation of how the Commissioner                                                                  
would excuse some people from educational requirements without                                                                  
opening the Department to litigation based on unequal treatment of                                                              
some groups of prisoners. CHAIRMAN TAYLOR restated the same                                                                     
question, asking "Is there an equal protection problem here?"  MR.                                                              
STARK replied it is an issue, but he believes a "rational basis"                                                                
argument can be made against an equal protection challenge.                                                                     
CHAIRMAN TAYLOR commented, "There would at least be an objective                                                                
standard . . ." MR. STARK agreed.                                                                                               
Number 371                                                                                                                      
SENATOR HALFORD stated for the record, "This committee believes it                                                              
is an objective standard and it should be applied in an objective                                                               
manner . . . the Administration, if they have any problems doing                                                                
that, they should come back to us, as it is our expectation that it                                                             
be applied in a manner that is constitutional." CHAIRMAN TAYLOR                                                                 
asked if there was objection to that statement. SENATOR ELLIS said                                                              
"We are making an attempt to make it an objective standard, but it                                                              
is by its nature subjective . . . that may be our opinion, but I                                                                
don't know that is fact." CHAIRMAN TAYLOR clarified, "It is the                                                                 
intent of this committee . . . this would be an objective standard                                                              
applied without violating equal protection . . ."                                                                               
MR. STARK assumed the committee had no interest in MR. RICHARDS'                                                                
proposal. CHAIRMAN TAYLOR said he'd prefer to see inmates attain                                                                
these educational requirements as early as possible, though he                                                                  
realizes this will increase the cost to the State.                                                                              
Number 346                                                                                                                      
SENATOR DONLEY noted that, if the bill was changed and an inmate                                                                
failed to attain their GED, a Public Defender would be required to                                                              
represent them at a parole revocation hearing. MR. STARK affirmed                                                               
this is true.                                                                                                                   
CHAIRMAN TAYLOR asked if there was further testimony on CSSB
1(JUD). There was none.                                                                                                         
Number 330                                                                                                                      
SENATOR DONLEY moved CSSB 1(JUD) with individual recommendations                                                                
and the accompanying fiscal notes. Without objection, CSSB 1(JUD)                                                               
moved from committee.                                                                                                           
CHAIRMAN TAYLOR explained there was further work to be done on SB
96 and the bill would be up for consideration at the next meeting.                                                              
With nothing further to come before the committee, CHAIRMAN TAYLOR                                                              
adjourned  the meeting at 3:00 p.m.                                                                                             

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