Legislature(1999 - 2000)
03/17/1999 01:45 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 Conduct 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 serve. MS. MIKLOS stated she is a proud, long time resident of Alaska who has traveled extensively in state and appreciates the state's diversity. 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 themselves. 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 agreed. 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 disagreed. 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 sure. 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 confirmation. CHAIRMAN TAYLOR announced SB 99 would be the next order of business. 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 citizens." 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 uncowed. 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 plan. 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 purposes. 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 Department. 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 inmates. 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 conviction. 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.