Legislature(1997 - 1998)
02/05/1997 01:38 PM Senate JUD
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* first hearing in first committee of referral
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SENATE JUDICIARY COMMITTEE February 5, 1997 1:38 p.m. MEMBERS PRESENT Senator Robin Taylor, Chair Senator Drue Pearce, Vice-chair Senator Mike Miller Senator Sean Parnell Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR SENATE JOINT RESOLUTION NO. 3 Proposing an amendment to the Constitution of the State of Alaska limiting the rights of prisoners to those required under the Constitution of the United States. HEARD AND HELD CONFIRMATION HEARING - Barbara Brink, Public Defender SENATE BILL NO. 39 "An Act relating to hazardous chemicals, hazardous materials, and hazardous waste." MOVED CSSB 39(JUD) OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION SJR 3 - No previous Senate committee action to report. SB 39 - See Senate Judiciary minutes dated 2/3/97. WITNESS REGISTER Senator Dave Donley Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of SJR 3 Margo Knuth Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Commented on SJR 3 Barbara Brink Public Defender Agency Department of Administration 900 W 5th Ave., Ste 200 Anchorage, AK 99501-2090 POSITION STATEMENT: Annette Kreitzer Legislative Aide Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Testified for the sponsor of SB 39 ACTION NARRATIVE TAPE 97-5, SIDE A Number 00 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:38 p.m.. Senators Taylor, Miller, Parnell and Ellis were present. The first order of business was SJR 3. SJR 3 PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS SENATOR DAVE DONLEY , sponsor of SJR 3, explained the legislation adds a provision to the Alaska Constitution adopting the prisoners' rights standard contained in the U.S. Constitution as the appropriate standard to use in Alaska. Current Alaska standards are based on the Cleary consent decree, which is based on state and federal constitutional law, but does not identify which elements are from each. Lack of identification makes litigation difficult. Because the state and federal constitutions differ, the state courts may adopt different standards than those based on federal case law. SJR 3 adopts a single federal standard for dealing with prisoners' rights in Alaska. Number 036 SENATOR ELLIS asked if the federal corrections system is based on the principle of incarceration, while the state system is based on the goal of rehabilitation to further enhance public safety after prisoners are released. He questioned whether SJR 3 would nullify the goal of rehabilitation as a prime objective of Alaska's penal system and whether passage of SJR 3 would overturn the Cleary decree SENATOR DONLEY explained the Alaska Constitution, as amended in 1994, establishes five goals for prison administration: public protection, rehabilitation of the offender, victims' rights, restitution to victims, and community condemnation. Those goals will remain the constitutional guides for prison administration in Alaska, but the issue of cruel and unusual punishment will fall under federal guidelines. Cell size and access to certain facilities are examples of issues of cruel and unusual punishment that would be determined by federal guidelines. Senator Donley did not believe those issues have conflicting goals. Number 075 SENATOR ELLIS asked how passage of SJR 3 would affect the question of the constitutionality of a death penalty in Alaska. SENATOR DONLEY replied, in his opinion, it would have been difficult to argue the constitutionality of a death penalty in Alaska prior to 1994 because the constitution provided only two goals of the prison system: reformation and public protection. One would have to argue the death penalty was necessary for public protection which would be difficult since Alaska provides the option of absolute, life- time incarceration. The addition of the standard of community condemnation in 1994 has opened the door for a death penalty a little more. Because the death penalty has not been in existence since the Alaska Constitution was ratified, no litigation regarding this question has occurred in Alaska, so this area of law remains unexplored and court rulings remain difficult to predict. Number 114 SENATOR PARNELL requested a comparison of prisoner restrictions based on state and federal constitutions. SENATOR DONLEY replied the Division of Legal Services is unable to provide a breakdown because the settlement presents a total condition analysis and specifically states it is pursuant to both constitutions. The Courts have never identified which conditions are required under federal or state law. As long as the potential for a dual system exists, the court will not definitively discriminate between the two. A whole body of federal cases defining certain standards exists, which influence, but are not definitive, over state law. The delineation is very confusing and frustrating. He offered to provide Senator Parnell with a list of those federal cases that deal with prisoners' rights. SENATOR PARNELL requested the list be included in committee packets and asked whether any other state has adopted similar legislation. SENATOR DONLEY was not aware of any. Number 155 SENATOR ELLIS requested SJR 3 be held in committee for further consideration. CHAIRMAN TAYLOR agreed, and noted his belief that SJR 3 is innovative and provides the state the opportunity to revisit the entire Cleary question. SENATOR DONLEY remarked the Cleary settlement is unusual in that i contains no less than four separate provisions disallowing revisitation. A U.S. Supreme Court decision, however, permits states who have negotiated such settlements to renegotiate if a substantial change in conditions occurs. SJR 3 represents the type of condition change required for renegotiation. The Attorney General has not pursued the Legislature's request to revisit the Cleary settlement because no substantive change in conditions has occurred. Number 189 CHAIRMAN TAYLOR discussed the prison overcrowding problem and the court order entered by Judge Hunt. The cost may be as high as $3.5 million per year. Statistics for the month of January show every penal institution in the state full beyond maximum occupancy, therefore Alaska is still in contempt of the court order. He questioned whether passage of SJR 3 and use of the federal standard, to determine cell size and occupancy, would eliminate the overcrowding problem. SENATOR DONLEY commented the federal standard for multi-prisoner unit prohibitions is very different from the standards set in the Cleary settlement, which discourages more than two prisoners per unit. Most private institutions use the federal guidelines. Years of federal case law have been, and can be, used as a frame of reference for federal constitutional requirements; the State of Alaska does not have cases to use to determine what the state consitution requires. Number 231 MARGO KNUTH , Assistant Attorney General, encouraged the committee to hear from the Department of Law about the possible impact of SJR 3 on the Cleary settlement, and from the Department of Corrections about the criteria used to determine overcrowded conditions in state prisons. She is confident the state could not do better using the federal standards to determine overcrowding. The number of prisoners per cell is only one of a number of factors determining prisoner overcrowding. Alaska prisons were designed to house a much lower population than they currently house. The most serious problem is the physical limitations of existing facilities. Prison expansion will need to be addressed by this Legislature. CHAIRMAN TAYLOR thanked Ms. Knuth for her comments. CONFIRMATION HEARING: PUBLIC DEFENDER BARBARA BRINK , acting director of the Public Defender Agency, spoke to the committee about her job, the agency, and her desire to continue in the role of public defender. She has been practicing law in the Public Defender Agency for 15 years, has handled felony, misdemeanor, and appeals cases and all stages of cases from investigation to trials, appeals, sentencing, and post conviction relief. She has represented a variety of clients in a variety of locations, and seen issues from a variety of angles. She has traveled to all public defender offices except the new office in Dillingham. She feels experienced in all phases of the agency's operations and is familiar with its needs. Eight years ago she was appointed as deputy director and began working on the administrative aspects of the agency including personnel and legislative matters. She has worked with the Departments of Law, Corrections, Health and Social Services, and the Court System to draft legislation to benefit all Alaskans. She believes Alaska, as a state, can be judged by how its less fortunate citizens are represented and treated. The Public Defender Agency represents the poor and indigent, often mentally or physically disabled, undereducated, and minority clients. She gets to communicate that side of clients others do not get to see to others in the system so they can appreciate the whole person when making decisions about that individual. The Public Defender Agency is constantly asked to do more with less. Since 1988, its caseload has increased almost 45 percent, while its budget has increased less than 15 percent. She sees the areas needing improvement as: consolidating some state services, eliminating duplicated efforts, and joining staff efforts. She has proposed a capital project in the Public Defenders Agency budget to obtain legal technology for rural offices so that staff can complete legal research more quickly and efficiently. Number 337 SENATOR MILLER asked Ms. Brink to update the committee on the issue of determining client eligibility to ensure that those receiving services cannot afford private counsel. MS. BRINK answered the Court System determines eligibility and assigns cases to the Public Defender Agency. A 1994 Legislative Budget and Audit report identified problems in this area, regarding lack of standardization of eligibility criteria. The Court System believes flexible guidelines are necessary to accommodate the differences in access to legal services around the state, as well as different lifestyles. A court system committee has been studying the issue to prepare new standards of indigency. Additionally, the Legislature passed a bill last session which eliminates the Public Defender Agency's ability to self appoint. In the past, a person being investigated or suspected of a crime would occasionally seek advice from the agency. The ability to represent those clients has been eliminated by statute. Number 368 SENATOR PARNELL asked Ms. Brink to address concerns presented to the committee by Mr. Holmes. MS. BRINK noted Mr. Holmes provided her with a copy of his letter to the committee. She and Mr. Holmes were engaged in an ongoing philosophical debate about what was best for the client. Mr. Holmes' philosophy was basically that of anarchy: he thought he was serving his clients best by being non- cooperative, asserting every right whether valid or invalid, asserting every claim, whether frivolous or non-frivolous, and backing up the system. She disagrees with that approach and believes it is important for a lawyer, in any case, to represent an individual and ascertain his/her priorities, and to represent that client to the best of one's ability. If, in the big picture, that helps the system, so be it, if not, the client's needs and concerns should be the priority. Mr. Holmes' letter demonstrates a different approach to take to the practice of law in the criminal justice system, one she does not subscribe to. She believes his concerns are sincere; his number one concern in all cases is good representation for the citizens of Alaska. Number 391 CHAIRMAN TAYLOR appreciated Ms. Brink's candor and attitude. He often felt the Public Defender Agency, and others, misuse clients by plugging up the system, or routinely disqualifying particular judges in all public defender cases. There being no further testimony or discussion about Ms. Brink's appointment, SENATOR MILLER made a motion to move the committee report out of committee with individual recommendations. There being no objection, the motion carried. SB 39 HAZARDOUS CHEMICALS, MATERIALS, AND WASTE SENATOR PARNELL moved to adopt the draft committee substitute for SB 39 (0-LS0214\B) as CSSB 39(JUD). There being no objection, the motion carried. ANNETTE KREITZER, staff to Senator Leman, sponsor of SB 39, explained four technical changes made in the committee substitute. In response to two concerns raised during the previous hearing, she clarified the purpose of SB 39 is to ensure that businesses required to report hazardous substances, chemicals and waste can do so as simply as possible. The requirement to report consumer commodities of a hzardous material in a quantity of more than 1,000 pounds was aimed at large stores such as K-Mart and COSTCO. Local fire departments know what materials are in those stores, therefore an additional placard is unnecessary. The definition of "hazardous chemical" on page 4 lines 16-17, is taken from the OSHA definition (29 C.F.R. 1910.1200(c). The exceptions, listed on lines 18-30, are derived from 40 C.F.R. 370.2 (Emergency Planning and Community Right-to-Know Act). SB 39 makes no changes to existing federal law, it further codifies it. SENATOR PARNELL asked Ms. Kreitzer to respond to the concern about the compressed gas requirement that was raised during the previous hearing. MS. KREITZER explained this issue was discussed in the Senate Resources Committee at length last session. SB 39 removes two provisions from statute that are not required by federal law. Those provisions read: Page 4, lines 15-16: (2) [A CONSUMER COMMODITY OF A HAZARDOUS MATERIAL IN A QUANTITY OF MORE THAN 1,000 POUNDS] and lines 24-25: (7) [COMPRESSED GASSES EQUAL TO OR MORE THAN 200 CUBIC FEET AT STANDARD TEMPERATURE AND PRESSURE]. She noted the goal of SB 39 is to require one reporting form that will satisfy the reporting requirements for the Municipality of Anchorage, the Emergency Response Commission, and the federal requirements for MSDS sheets. SENATOR PARNELL asked if the reporting requirement for compressed gasses is still mandated by the Municipality of Anchorage. MS. KREITZER stated it is, and added this discussion began with SB 33, which was enacted several years ago. The discussions have been ongoing, with the goal of streamlining reporting requirements so that an electronic format can be used. There being no further testimony or discussion, SENATOR MILLER moved CSSB 39(JUD) out of committee with individual recommendations. There being no objection to the motion, it was so ordered. CHAIRMAN TAYLOR adjourned the meeting at 2:10 p.m.
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