Legislature(1995 - 1996)
04/29/1995 02:30 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 29, 1995
2:35 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
Senator Mike Miller
MEMBERS ABSENT
Senator Al Adams
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE CONCURRENT RESOLUTION NO. 19
Establishing the Blue Ribbon Commission on Gaming and Gambling and
relating to commission recommendations regarding gaming and
gambling in the state.
SENATE BILL NO. 172
"An Act eliminating 'monte carlo' nights as an authorized form of
charitable gaming; and providing for an effective date."
CS FOR HOUSE BILL NO. 219(FIN)
"An Act relating to medical care for prisoners; and authorizing
special medical parole for severely medically disabled or
quadriplegic prisoners."
SENATE BILL NO. 154
"An Act relating to an aggravating factor at sentencing."
CS FOR HOUSE BILL NO. 234(JUD)
"An Act relating to administrative adjudication under the
Administrative Procedure Act."
SENATE BILL NO. 167
"An Act relating to day fines in certain criminal cases and release
of employment information for use in the collection of criminal
judgments."
CS FOR HOUSE BILL NO. 13(STA)
"An Act requiring persons filing for nomination for, or campaigning
for election for, state elective office, persons authorized to make
or incur political campaign expenditures before formally filing for
nomination to state elective office, and groups acting on behalf of
any of these, to file certain election campaign finance disclosure
reports."
CS FOR HOUSE BILL NO. 42 (STA) am
"An Act relating to absentee voting, to electronic transmission of
absentee ballot applications, and to delivery of ballots to
absentee ballot applicants by electronic transmission, and enacting
a definition of the term 'state election' for purposes of absentee
voting."
CS FOR SENATE BILL NO. 95(L&C)
"An Act relating to automobile liability insurance for uninsured or
underinsured motor vehicles; and providing for an effective date."
PREVIOUS SENATE COMMITTEE ACTION
HB 39 - See Health, Education & Social Services minutes dated
3/6/95.
HB 74 - See State Affairs minutes dated 3/28/95.
HB 13 - See State Affairs minutes dated 4/25/95.
SB 167 - No previous Senate action.
HB 42 - See State Affairs minutes dated 3/28/95.
See Judiciary minutes dated 4/22/95 and 4/24/95.
SB 154 - No previous Senate action.
SB 95 - See Labor and Commerce minutes dated 2/28/95, 3/21/95, and
3/28/95.
See Judiciary minutes dated 4/12/95, 4/19/95 and 4/24/95.
WITNESS REGISTER
Representative Gene Therriault
Alaska State Legislature
Juneau, Alaska 99811-1182
POSITION STATEMENT: Sponsor of HB 39
Matt Anderson
Emergency Medical Services Section
Dept. of Health and Social Services
P.O. Box 110616
Juneau, Alaska 99811-0616
POSITION STATEMENT: Testified in support of HB 39
Patty Swenson
Legislative Aide
Alaska State Capitol
Juneau, Alaska 99811-1182
POSITION STATEMENT: Testified for sponsor of HB 74
Margot Knuth
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified in support of SB 154
Julie Jensen-Zarr
POSITION STATEMENT: Testified in support of HB 74
Bruce Botelho
Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
POSITION STATEMENT: Testified in support of SCR 19
Denny Dewitt
Legislative Aide
Alaska State Capitol
Juneau, Alaska 99811-1182
POSITION STATEMENT: Testified for sponsor of HB 219
Jayne Andreen
Council on Domestic Violence and Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Testified in Support of SB 154
Theresa Williams
Assistant Attorney General
Department of Law
1031 W. 4th Ave., Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Testified in support of CSHB 234(JUD)
Chris Christensen
Judicial Counsel
Alaska Court System
303 K St.
Anchorage, AK 99501-2084
POSITION STATEMENT: Testified in support of SB 167
Jeff Logan
Legislative Aide
Alaska State Capitol
Juneau, Alaska 99811-1182
POSITION STATEMENT: Testified for sponsor of HB 13
Tom Anderson
Legislative Aide
Alaska State Capitol
Juneau, Alaska 99811-1182
POSITION STATEMENT: Testified for sponsor of HB 42
ACTION NARRATIVE
TAPE 95-27, SIDE A
Number 001
SB 172 ELIMINATE MONTE CARLO NIGHTS
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:35 p.m. The first order of business was SB 172.
[The following is a verbatim transcript.]
SENATOR TAYLOR: Next one up is SB 172, "An Act eliminating monte
carlo nights," at the request of whom, Senator Miller?
SENATOR MILLER: This was put in by the request - I'm not sure, but
it was one that we had been working with the Administration on ...
this particular area regarding some problems that we could be
having with the Indian Gaming Act... we had been working with the
Administration on.
SENATOR TAYLOR: Is there anybody here who wishes to testify on SB
172? The basic purpose of this bill is to eliminate, from state
law, the right of any person to conduct a monte carlo night for
charitable gaming purposes, or any other purpose for that matter.
Is there anybody who wishes to testify on this legislation?
Senator Miller, in your opinion, does this, in fact, eliminate
monte carlo night, to the best you can tell?
SENATOR MILLER: To the best I can tell, it does.
[End of verbatim transcript.]
SENATOR MILLER specified Section 3 prohibits the activity.
SENATOR TAYLOR stated it is his understanding that under current
gambling legislation passed by Congress, Indian tribes are
authorized to conduct gambling operations on their lands, if such
gambling forms are authorized by state law. Conversely, if state
law prohibits such gaming, that activity cannot be conducted on
Indian land. Even though money is not exchanged in monte carlo
night activities, those types of activities must be prohibited if
similar activities are to be prohibited on Indian trust lands.
According to the Attorney General, to prevent the expansion of
gambling activities into the casino form, the state must terminate
the right of any charity to hold monte carlo nights.
SENATOR TAYLOR commented the Senate majority has worked closely
with the Administration on this legislation. The Administration is
negotiating in good faith with the Klawock Native Council regarding
the development of a casino-type gambling operation on a parcel of
land in Klawock. Several other groups within the state are
petitioning the Secretary of Interior for that privilege. SB 172
would eliminate the opportunity to develop a casino-type
establishment, however bingo, lotteries and pull tabs would still
be permitted. That is the reason the legislation is on a fast
track through the Senate.
Number 156
SENATOR GREEN moved SB 172 out of committee with individual
recommendations. There being no objection, the motion carried.
HB 39 AUTHORITY TO PRONOUNCE DEATH
REPRESENTATIVE GENE THERRIAULT, sponsor of HB 39, gave the
following testimony. HB 39 is the reintroduction of legislation
that died in the Senate Rules committee last year due to lack of
time. The measure grants the authority to intensive care
paramedics, physicians assistants, and EMTs to pronounce death in
certain circumstances. Due to the rural nature of Alaska, many
volunteer care providers respond to emergency situations where
death may occur but are out of contact with a consulting physician.
Once CPR is started, the provider cannot stop until the victim is
in a location where a physician can pronounce death. Situations
occur in which the provider knows the victim cannot be
resuscitated, yet must continue futile CPR, which can be traumatic
to the victim's relatives, and to the provider. He has worked
extensively with state agencies that oversee EMT services to draft
concise language. Section 2 adds a new section to the statute to
specify when the authority is granted and the procedure and
information necessary to pronounce death.
Number 209
SENATOR TAYLOR questioned the definition of "properly administered
resuscitation" on page 4, and wondered whether the 30 minute CPR
requirement could create provider liability when the victim is not
hypothermic.
REP. THERRIAULT repeated under current law, once a provider begins
to administer CPR, CPR cannot be stopped until a physician
pronounces death. The 30 minute limit was arbitrarily chosen, but
grants the authority to pronounce death after 30 minutes.
Number 230
SENATOR TAYLOR clarified the 30 minute limit should be considered
to be a reasonable standard; not an absolute standard. He expressed
concern that by specifying a 30 minute time limit, the risk of
someone enforcing it in an illogical situation increases. He
discussed a situation in Wrangell in which a car accident victim
was killed instantly, and fortunately the paramedics were able to
contact a physician shortly after arriving on the scene. However,
if the physician was unable to be contacted, it would have been
useless to administer CPR for 30 minutes. He also expressed
concern about the ability to pronounce death. He recounted a
second situation in which a pilot was pronounced brain dead by the
Ketchikan General Hospital but after receiving treatment at
Harborview Medical Center in Seattle, is almost fully recovered.
Number 270
SENATOR GREEN asked whether any individual administering CPR is
still unable to stop administering CPR until a replacement is
available. REP. THERRIAULT was unsure how current law applies to
private individuals.
Number 284
MATT ANDERSON, Training Coordinator for the Emergency Medical
Services Section of the DHSS, testified in support of HB 39. The
bill is medically appropriate, was crafted considering current
medical techniques and standards, and will be easy to implement.
Many of the issues raised by committee members can be adequately
addressed by the training program. He noted the conditions
required for a person to be pronounced dead on page 3 are listed as
"or." He explained the 30 minute time limit for patients who fail
to respond to proper resuscitation efforts follows standard medical
procedure. Currently, lay rescuers trained in CPR are advised to
do so until: the situation becomes too hazardous; they are
physically exhausted; or until new rescuers relieve them.
Number 315
SENATOR GREEN moved CSHB 39(JUD) from committee with individual
recommendations. There being no objection, the motion carried.
Number 318
HB 74 ASSAULT BY ADULTS ON CHILDREN
PATTY SWENSON, legislative aide to Representative Bunde, sponsor of
HB 74, gave the following testimony. The impetus for HB 74 was an
attack on a 14 year old newspaper boy by three drunk, 20-year old
men who ran over the boy with his own snowmachine. The men were
charged with a misdemeanor, and are likely to receive unsupervised
probation as their punishment. HB 74 changes the offense of
assault by a person over 18 on a minor between the ages of 10 and
16 to a class C felony. The minor must receive physical injury
requiring medical treatment. The standard of "knowingly" is used,
which calls for a higher mental state, and provides a defense for
persons who reasonably believed their victim was 16 years of age or
older.
SENATOR TAYLOR asked why the attackers were not prosecuted to the
fullest extent possible under existing law.
Number 360
MARGOT KNUTH, Assistant Attorney General, replied the physical
injury was the result of a punch, not the snowmobile, therefore the
crime was considered assault in the fourth degree. The physical
injury must be serious, or a dangerous instrument must be used, to
be considered more than a misdemeanor.
Number 368
SENATOR TAYLOR asked if under HB 74, the same assault would be
classified as a class C felony, only because the bill specifies the
age differential. He questioned if the attack was on a 16 year
old, the same misdemeanor classification would apply.
MS. KNUTH repeated the crime is classified a misdemeanor assault if
serious physical harm is not caused, and if a dangerous instrument
is not used.
JULIE JENSEN-ZARR testified in support of HB 74 via teleconference
from Anchorage. HB 74 has received widespread community support
and over 1500 petition signatures from Palmer to Homer because of
the assault on a South Anchorage boy. [The remainder of Ms.
Jensen-Zarr's testimony was indiscernible due to poor
transmission.]
SENATOR GREEN moved CSHB 74 out of committee with individual
recommendations. There being no objection, the motion carried.
Number 410
SCR 19 BLUE RIBBON COMMISSION ON GAMING
[The following is a verbatim transcript.]
MR. BOTELHO: Thank you Mr. Chairman. My name for the record is
Bruce Botelho, Attorney General for the state. I apologize, Mr.
Chairman, for not being here when the matter was first called. The
resolution would establish a Blue Ribbon Gaming Commission between
now and the 15th of January, 1996, the 1996 legislative session, to
study the future of gambling and gaming in the state. It has been
precipitated by a variety of developments in the state, to note
three or four of those activities, one has been the push toward
cruise ship gambling; second and independent, but certainly tied to
it, the interest in undertaking casino gambling through the Indian
Gaming Regulatory Act and the request by the Klawock Community
Association to negotiate a compact under the federal law here in
Alaska and the fact that they would be entitled to play any game
which is otherwise authorized in the state. We also have seen
legislation proposed to allow certain forms of gambling on the
state ferries, we had various lottery bills in the past, the
legislature has been asked to deal with such activities as
paramutuel betting. All of these make clear, and certainly the
national picture makes clear, that one of the major policy issues
facing legislatures around the country, and our state in
particular, is the future of gambling and gaming in the state.
Mr. Chairman, the Administration supports this resolution, and
would urge its speedy adoption.
SENATOR TAYLOR: Any questions by the committee? Senator Green...
SENATOR GREEN: I just have... do resolutions require an effective
date, since we are appointing a committee?
SENATOR TAYLOR: It will become effective upon passage.
SENATOR GREEN: It's an automatic?
SENATOR TAYLOR: Yes.
SENATOR GREEN: It does not require...
SENATOR TAYLOR: It's just a resolution anyhow, which is like an
intent of the Senate or an intent of the legislature.
SENATOR GREEN: O.K., it's just that it has a closure date and I
just wondered if it had..., if it is automatically in place if it
passed.
SENATOR TAYLOR: I don't have any further questions either. Thank
you very much for taking your time to come down.
MR. BOTELHO: Thank you Mr. Chairman.
SENATOR TAYLOR: I just wanted you to know that the Judiciary
Committee in the Senate is not a bad place to visit.
MR. BOTELHO: Every once in awhile, Mr. Chairman. Thank you.
SENATOR GREEN: Would you like a motion for SCR 19?
SENATOR TAYLOR: Yes, let there be a motion.
SENATOR GREEN: SCR 19, I move that it be out of committee with
individual recommendations.
SENATOR TAYLOR: SCR 19 has been moved from committee with
individual recommendations. Are there any objections? There being
no objections, it moves from committee.
[End of verbatim transcript.]
HB 219 PAROLE OF TERMINALLY ILL PRISONERS
Denny Dewitt, legislative aide to Representative Mulder, sponsor of
HB 219, gave the following testimony. HB 219 allows a special
medical parole for inmates who are either quadripalegics or
bedridden with a terminal condition. It also allows the Department
of Corrections to establish a billing mechanism for medical
services within prisons to help control medical services, similar
to a deductible in a traditional health insurance policy. It will
allow the department to place itself secondary to other kinds of
coverages that might be available for prisoners. This provision is
particularly important in "soft bed" situations where an individual
might be working and have access to health insurance, or are
incarcerated for misdemeanors and maintain their health insurance
during that time period.
Number 469
SENATOR TAYLOR noted that during testimony in a House committee, it
was disclosed that over $340,000 was spent on a prisoner who was
terminally ill with AIDS in the last few months of that prisoner's
life. MR. DEWITT replied the amount was $540,000.
SENATOR TAYLOR asked if HB 219 would help alleviate the state from
the liability of providing for medical treatment for terminally ill
prisoners. MR. DEWITT explained the bill will put prisoners on
special medical parole, which will enable them to become eligible
for medicaid. The quality of care will improve for these
individuals in settings other than prisons, since prisons are not
designed to provide that type of care.
Number 489
SENATOR TAYLOR noted there is a zero fiscal note. MR. DEWITT
predicted the bill will save money over the long term.
SB 154 AGGRAVATING FACTORS AT SENTENCING
MS. KNUTH testified on behalf of the Department of Law in support
of SB 154. The bill was recommended by the Sentencing Commission
and fixes an oversight. Currently, previous convictions for sexual
assault are considered as aggravators when sentencing sexual
assault or sexual abuse perpetrators, however previous sexual abuse
convictions are not considered. SB 154 allows previous sexual
abuse convictions to be considered as aggravators when sentencing
repeat offenders. She was unaware of any opposition to SB 154.
Number 515
SENATOR TAYLOR commented it is sad that the court system is so
strictly regulated in what can and cannot be applied when
sentencing a repeat offender.
JAYNE ANDREEN, Council on Domestic Violence and Sexual Assault,
testified in support of SB 154. The CDVSA believes it is very
important when dealing with offenders with a high recidivism rate
that the court be able to review their full criminal history when
making sentencing decisions.
SENATOR GREEN moved SB 154 out of committee with individual
recommendations. There being no objections, the motion carried.
HB 234 ADMINISTRATIVE ADJUDICATIONS
TERESA WILLIAMS, Assistant Attorney General, testified on behalf of
the Office of the Governor. CSHB 234(JUD) makes minor, but
important changes in the Administrative Procedures Act. It
clarifies the law, saves money, and speeds the process. The
Administrative Procedures Act contains some archaic language that
causes delays and often results in frivolous litigation. She was
unaware of any opposition to the bill. The bill is expected to
reduce hearing costs to both the state and involved parties. CSHB
234(JUD) will allow routine telephonic participation, changes the
reimbursement rate for witnesses, expressly authorizes the agency
to allow discovery and how it will take place, and codifies
existing court law regarding burden of proof and standard of proof.
The bill also clarifies the time period for requesting
reconsideration.
Number 560
SENATOR TAYLOR asked about witness fees and other fees not included
in the bill, and expressed concern that the petitioner might be
burdened to such an extent that people are discouraged from
petitioning for redress. MS. WILLIAMS replied the telephonic
participation provision will eliminate the need to have witnesses
travel and help reduce costs.
SENATOR TAYLOR questioned the impact of the changes made in the
bill upon the selection of forum, and who would choose what venue
the matter should be tried within. MS. WILLIAMS explained the bill
does not really change the selection. The old language refers to
Senate districts that no longer exist; the most comparable
districts are the judicial districts. SENATOR TAYLOR clarified the
bill makes no substantive changes, only clean up changes. He added
that discretion should allow for some adjustment of location of
hearing if more appropriate for all parties.
SB 167 DAY FINES & INFO FOR COLLECTING FINES
CHRIS CHRISTENSEN, general counsel to the Alaska Court System,
explained last year the legislature passed legislation authorizing
courts to impose day fines for certain misdemeanor offenses. A day
fine is based on the person's annual income. In the course of
implementing this law, certain problems became apparent. Some of
the problems can be rectified by simple amendments to the original
law, however other problems are more fundamental. SB 167 addresses
the more technical difficulties, not the fundamental problems.
TAPE 95-27, SIDE B
MR. CHRISTENSEN replied SB 167 contains technical changes to the
law to make it more workable, however the law still contains
fundamental problems. The legislature's intent in passing the law
was to decrease the number of misdemeanor offenders serving jail
time, and to increase fine collection rates. Two problems have
occurred. First, the day fines law excludes most of the
misdemeanor offenses for which people now serve jail time. About
90 percent of the people sent to jail serve time for six offenses:
DWI; refusal to take a breath test; driving with a suspended
license; driving with a revoked license; misdemeanor assault; and
violation of a domestic violence restraining order. All six of
those crimes are specifically excluded from the day fines law, and
it is unlikely that jail sentences for those crimes will be
eliminated by the legislature.
SENATOR TAYLOR questioned the benefit to modifying some of the
mandatory sentences to provide for electronic monitoring, coupled
with a day fine, as opposed to serving jail time.
MR. CHRISTENSEN felt there were underlying problems with the
concept that would take some time to work through. He discussed a
second problem with the current law. Judges are unlikely to order
the payment of a day fine if the judge does not believe the person
will pay the day fine. In reviewing the state's collection
practices, the day fines committee discovered that current fine
collection rates are extremely low and believes the program will
not be widely used until the Department of Law receives additional
collection tools. The federal court system is studying the
possibility of preventing a person from renewing a state license
until criminal fines are paid.
Number 560
MR. CHRISTENSEN discussed a third fundamental problem pertains to
the fine amounts that result from the day fines formula. The
legislature directed that class A misdemeanors be subject to up to
365 day units, a day unit being one day of a person's salary. When
trying to determine a reasonable fine, the committee decreased the
amount to 45 day units, yet even at that level some fines are
extreme.
The fourth area of concern, described by MR. CHRISTENSEN, is about
fish and game misdemeanor offenses. The day fines committee
excluded those offenses from its report to prevent the imposition
of another layer of complexity to the existing problems. The
sentencing structure for fish and game offenses is unclear, and
contains many different penalty provisions, and many offense
definitions overlap. The day fines committee recommended that the
legislature appoint a special committee or interagency group to
assess and restructure fish and game penalty provisions and
definitions of offenses.
SENATOR TAYLOR agreed the legislature needs to make a policy
decision on the fundamental issues raised. He asked Mr.
Christensen if he believed the bill would be of significant benefit
to the court system, even though it is only technical in nature, in
light of the late session date.
Number 512
MR. CHRISTENSEN believed if the technical changes are made, the
Supreme Court would send the issue back to the day fines committee
to see if implementation is possible.
SENATOR TAYLOR announced he would hold the bill in committee to
give members further opportunity for review. He added it could be
moved out of committee quickly, if necessary.
SENATOR GREEN asked if the sliding fee scale was a common approach
to fine assessment. MR. CHRISTENSEN answered it is a common
approach in Europe, and a few American jurisdictions have started
to use it. He explained the theory is that large fines can be as
much of a deterrent to criminal behavior as the threat of a very
short jail sentence. Traditionally fines are imposed without
regard to a person's income, and are generally low. This approach
looks to a person's income to supposedly provide equity in the
system.
Number 486
HB 13 CAMPAIGN FILINGS & DISCLOSURES
JEFF LOGAN, legislative aide to Rep. Green, testified on HB 13. HB
13 requires those candidates seeking access to the general election
ballot, but whose names will not appear on the primary election
ballot, to file campaign disclosure reports during the primary
reporting cycle. Currently these candidates are not required to
file campaign disclosure reports until the 30 day pre-general
report. Therefore the candidates that make it on the general
election ballot are not required to disclose to the public who is
contributing money to their campaigns until October. The bill is
supported by the APOC and has a zero fiscal note.
SENATOR TAYLOR asked if it would be possible for a primary
candidate to dodge this requirement by having another person
solicit and collect money for him/her.
MR. LOGAN was unsure, but remarked HB 13 covers groups, as well as
individuals, therefore to receive campaign contributions, a letter
of intent would have to be filed.
SENATOR GREEN moved HB 13 from committee with individual
recommendations. There being no objections, the motion carried.
Number 464
HB 42 ABSENTEE VOTING & USE OF FAX
TOM ANDERSON, legislative aide to Representative Martin, stated the
bill was held in committee at the request of Senator Ellis to
review the question of the potential for fraud.
SENATOR TAYLOR asked if Senator Ellis had received the information
he requested. MR. ANDERSON believed Senator Ellis' staff had
discussed the matter with the Division of Election. MR. ANDERSON
explained the Division of Elections has procedures and policies in
place designed to prevent fraud.
SENATOR TAYLOR noted he had a discussion with an individual who was
concerned that by allowing others to waive their right to ballot
privacy, his right to ballot privacy could also be eliminated. He
illustrated his point by recounting the Roosevelt election results
from the town of Douglas. All but two residents voted for
Roosevelt, and other voters spent considerable time trying to
influence the two voters to change their votes. He noted Senator
Adams concern about the lack of privacy in small villages.
Number 414
MR. ANDERSON explained the individual faxes the ballot; only one
person on the receiving end would see the ballot, therefore he did
not feel that concern was valid.
SENATOR GREEN asked Senator Taylor if he was assuming that fax
results would show up differently in the total. SENATOR TAYLOR
thought that could happen in a very small, town such as Meyers
Chuck.
SENATOR MILLER commented the faxed ballots would be tallied with
the other ballots from the precinct, and not separately.
MR. ANDERSON clarified a person voting by electronic transmission
must apply four days in advance. He added eight states have this
function and there have been no problems.
SENATOR GREEN moved CSHB 42 (STA)am with individual
recommendations. There being no objections, the motion carried.
SENATOR TAYLOR adjourned the meeting at 3:40 p.m.
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