Legislature(1999 - 2000)
03/29/2000 01:54 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
March 29, 2000
1:54 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Dave Donley
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
Senator Rick Halford, Vice-Chairman
COMMITTEE CALENDAR
SENATE BILL NO. 294
"An Act relating to the possession of concealed handguns and to
concealed handgun permits."
-HEARD AND HELD
SENATE JOINT RESOLUTION NO. 15
Proposing amendments to the Constitution of the State of Alaska
relating to the appointment and confirmation of supreme court
justices and superior court judges and to approval or rejection of
justices and judges during certain general elections.
-HEARD AND HELD
SENATE BILL NO. 233
"An Act relating to priorities, claims, and liens for payment for
certain medical services provided to medical assistance recipients;
and providing for an effective date."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 294 - No previous action to report.
SJR 15 - No previous action to report.
SB 233 - See HESS minutes dated 2/16/00.
WITNESS REGISTER
Mr. Jim Pound
Staff to Senator Taylor
State Capitol Building
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 294
Mr. Victor Gunn
1711 Glacier Highway
Juneau, Alaska 99801
POSITION STATEMENT: Supports SB 294
Mr. Mike Pauley
Staff to Senator Leman
State Capitol Building
Juneau, Alaska 99801
POSITION STATEMENT: Testified on SJR 15
Mr. Jon Sherwood
Department of Health and Social Services
Division of Medical Assistance
PO Box 110601
Juneau, Alaska 99811-0601
POSITION STATEMENT: Testified on SB 233
Mr. Tom Boutin
Box 35116
Juneau, Alaska 99811
POSITION STATEMENT: Supports on SB 294
Mr. Brian Judy
National Rifle Association
Address not furnished
Sacramento, California
POSITION STATEMENT: Supports SB 294
Ms. Janie Wineinger
National Rifle Association
Address not furnished
Wasilla, Alaska
POSITION STATEMENT: Supports SB 294
Ms. Lauree Hugonin
130 Seward, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: Opposed to SB 294
Mr. Elzie Isley
Address not furnished
Ketchikan, Alaska 99901
POSITION STATEMENT: Supports SB 294
Lieutenant David Ray Hudson
Department of Public Safety
Alaska State Troopers
5700 East Tudor Road
Anchorage, Alaska 99501
POSITION STATEMENT: Supports SB 294
Mr. Duane Udland
4501 South Bragaw
Anchorage, Alaska 99508
POSITION STATEMENT: Supports SB 294
Mr. Pat Johnson
54540 East End Road
Homer, Alaska 99603
POSITION STATEMENT: Supports SB 294
Ms. Stephanie Cole
Alaska Court System
303 K Street
Anchorage, Alaska 99501
POSITION STATEMENT: Opposes SJR 15
Mr. Bill Cotton
Alaska Judicial Council
1029 West 3rd, Suite 201
Anchorage, Alaska 99501
POSITION STATEMENT: Opposes SJR 15
Justice Jay Rabinowitz
PO Box 22528
Juneau, Alaska 99802
POSITION STATEMENT: Testified on SJR 15
Mr. Les Gara
1242 West 10th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Opposes SJR 15
Mr. David Bundy
911 West 8th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Opposes SJR 15
ACTION NARRATIVE
TAPE 00-17, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:54 p.m. Present were SENATOR TORGERSON, SENATOR HALFORD
AND CHAIRMAN TAYLOR. The first order of business to come before
the committee was SB 294.
SB 294-CONCEALED HANDGUN PERMIT AMENDMENTS
MR. JIM POUND, staff to Chairman Taylor, made the following
comments:
Alaska's concealed carry law has been one of the most successful
programs in the United States. That success is based, in part, on
the original intent of the legislation to allow only knowledgeable,
law-abiding citizens to obtain state permits to carry concealed
handguns. Although the program has been successful, there are
several recurring problems with the implementation and management
of the program.
CSSB 294 proposes statutory changes to improve and streamline the
process to obtain and renew a concealed handgun permit. Applicants
will no longer be required to have a sworn application; permit
holders will be allowed to submit their renewal applications 60
days prior to expiration, allowing more time to complete the
renewal process before the expiration date; a new photograph will
be required every seven years, instead of every five years as
required now and additional thumb prints will no longer be required
during the renewal process.
The bill also makes changes to some of the training and education
statutes, streamlining the process and making reciprocity with
other states easier. An applicant will be required to provide
evidence of completion of a handgun or firearms safety course, but
it will eliminate the more subjective requirement by eliminating
the specific statutory definition of "competence," which is causing
problems with reciprocity in other states. Alaska State Troopers
will be authorized by statute to help teach handgun courses, which
may generate additional revenue.
CSSB 294 makes the statute apply equally to all citizens statewide
and clarifies the standards for recognition of permits from other
states.
SENATOR DONLEY moved to adopt the proposed committee substitute for
SB 294, work draft 1-LS1543\G, Luckhaupt, dated 3/24/00. There
being no objection, CSSB 294 was adopted as the working draft.
MR. VICTOR GUNN, speaking on his own behalf as a retired deputy
chief of police, said he endorses all of the changes encompassed in
CSSB 294. There is pending federal legislation that will allow law
enforcement officers to carry concealed handguns out of their
jurisdiction, it also allows qualified retired law enforcement
officers the opportunity to carry concealed handguns without a
permit. Mr. Gunn suggested the committee incorporate some of this
language into a conceptual amendment for CSSB 294.
Number 423
SENATOR DONLEY said he does not support allowing retired law
enforcement officers the opportunity to carry a concealed handgun
without a permit, but he does not have a problem with active law
enforcement officers carrying concealed handguns.
MR. GUNN responded that retired police officers have had a
tremendous amount of firearm and classroom experience on the use of
deadly force, and while on the job they are required to qualify
annually, at a minimum.
CHAIRMAN TAYLOR moved the conceptual amendment to allow existing
law enforcement officers to carry concealed handguns. There being
no objection, the conceptual amendment was adopted.
CHAIRMAN TAYLOR also expressed his concern about retired police
officers not having background checks before being given a permit.
CHAIRMAN TAYLOR announced he would like to adopt the committee
substitutes for SJR 15 and SB 233 before committee members had to
leave for other meetings, so CSSB 294 was set aside until later in
the meeting.
SJR 15-CONST. AM: APPOINTMENT OF JUDGES
MR. MIKE PAULEY, staff aid to Senator Leman, stated there have been
several legislative proposals over the last several years to reform
Alaska's judiciary, and while they have varied in the particulars,
all of the reform proposals have stemmed from the common premise
that the Alaska judicial system is broken. The problem is that
there are judges who are not interpreting the law, but actually
writing the law. They are examining the laws of the constitution
not on the basis of original intent or long standing legal
tradition but based on personal bias. Many Alaskans have taken
comfort in the fact that erroneous decisions can be overridden
through the process of a constitutional amendment. However, that
process was significantly undermined in the Bess v Ulmer decision
in which the court prevented Alaskans from voting on a
constitutional amendment and edited the language of another.
MR. PAULEY said the amendment before the committee proposes modest
changes to the judicial selection process. It expands the pool of
talent from which the governor can make appointments to fill
judicial vacancies. It will require legislative confirmation of
judicial nominees, and it will provide for more frequent retention
elections.
MR. PAULEY commented that SJR 15 takes a small step towards
restoring a system of checks and balances among the three branches
of government. The need for this is reflected in a comment by the
twelfth chief justice of the U.S. Supreme Court, Harlan Fiske
Stone, who lived from 1872 to 1946. Justice Stone observed, "While
unconstitutional exercise of power by the executive or legislative
branches of the government is subject to judicial restraint, the
only check on our own exercise of power is own sense of self
restraint."
CHAIRMAN TAYLOR commented that the CS only speaks to retention
elections and not an expansion of the pool from which Mr. Pauley is
speaking.
Number 823
MR. PAULEY clarified he was speaking to the original bill because
the committee had not adopted the CS.
SENATOR DONLEY moved to adopt CSSJR 15, version 1-LS0596\G,
Luckhaupt, dated 3/17/00, having the supreme court subject to
retention elections every six years and the superior court subject
to retention elections every four years. There being no objection,
CSSJR 15am was adopted.
SB 233-MEDICAL ASSISTANCE:LIENS & CLAIMS
SENATOR TORGERSON moved to adopt CSSB 233(JUD), 1-GS2058\D,
Lauterbach, dated 3/28/00. There being no objection, CSSB 233(JUD)
was adopted.
Number 927
MR. JOHN SHERWOOD, Department of Health and Social Services (DHSS),
stated this bill will make two improvements to the medical
assistance statute. It will extend the length of time for
providers who have claims for services to Medicaid recipients--from
six months to one year. The statute will also allow, if a good
cause is found, for filing after the deadline to pay the full
amount of the claim instead of 50% of the claim. The bill will
also improve DHSS's ability to recover against third parties where
medical care has been paid for a Medicaid recipient, and then the
Medicaid recipient engages in litigation against the insurance
company or similar defendant. SB 233 gives DHSS the right to put
a lien against these settlements.
CHAIRMAN TAYLOR noted that now that the committee substitutes have
been adopted and some committee members have left for other
meetings, he alone will hear testimony for the three bills before
the committee.
Number 1066
SB 294-CONCEALED HANDGUN PERMIT AMENDMENTS
MR. TOM BOUTIN, speaking for himself, stated that this is an
excellent program. Wherever concealed carry has been reviewed, it
has been found to lower the crime rate, and Alaska's program has
worked at least as well as any other state. Mr. Boutin stated he
supports SB 294.
Number 1133
MR. BRIAN JUDY, Alaska State Liaison for the National Rifle
Association (NRA), stated he is speaking on behalf of the more than
20,000 members of the Alaska NRA. Mr. Judy made the following
comments:
The NRA agrees with all of the changes in CSSB 294 and likes the
fact that more out-of-state permits will be recognized in Alaska.
A permit holder from another state who is 21 years of age and
legally able to own a handgun and who has passed a finger print
based background check and who has completed a handgun or firearm
safety course will qualify.
The NRA believes the municipal opt-out provision is
unconstitutional and should be deleted.
CHAIRMAN TAYLOR asked if he is suggesting the committee add
language to the bill in the form of an amendment.
MR. JUDY responded no, the language in the current CS takes away
from municipalities the ability to put on the ballot and opt-out of
the concealed weapon permit law, which is consistent with the state
constitution. This is a provision that was virtually unused--only
one community has attempted to opt-out.
MR. JUDY noted that the NRA supports deleting the competency
requirement.
Number 1420
SENATOR DONLEY asked how long the CCW permits are good for now.
MR. JUDY responded they are good for five years under existing law.
MS. JANIE WINEIGER, field representative for the NRA, commented she
is an instructor for the NRA and has had many calls concerning some
of the needed changes. Alaska residents want to know what the law
is and how it applies and they want to know what agreement Alaska
has with other states. As an instructor she needs clear, concise
information to pass on to permit holders in state and out of state.
States that grant reciprocity need to be listed, and the permits
and licensing department needs to update the web site accordingly.
The demonstration of competency with caliber and action types is
not needed--live fire is always part of the course curriculum. The
issuance of permits has been critically slow and the process needs
to be streamlined so people can receive their permits in a timely
manner. Ms. Wineiger supports CSSB 294.
Number 1570
MS. LAUREE HUGONIN, Director of the Alaska Network on Domestic
Violence and Sexual Assault, stated she is glad she does not often
have to come before the committee in opposition to a bill. The
Network is opposed to the changes in CSSB 294, especially the seven
year time limit for the photo--a persons appearance can change
within a matter of months, let alone seven years. The Network
does not want the demonstration of competency with specific action
type and caliber removed from the permit process, and they feel it
is important to give communities the opportunity to opt-out--people
should be able to decide how they want their community to be.
Number 1681
MR. ELZIE ISLEY, representing himself, stated he thinks SB 294 is
a wonderful bill.
Number 1709
LIEUTENANT DAVID HUDSON, Department of Public Safety (DPS), stated
DPS appreciates what the committee has done to help benefit the
program. Lieutenant Hudson suggests that "at least as strict"
should be removed completely from the statute. Language can be
added that says a person holding a valid permit to carry a
concealed handgun from another state and with a signed statement
from an authorized representative of that state saying they will
accept an Alaska concealed handgun permit, that Alaska will
reciprocate by taking that state's permit.
LIEUTENANT HUDSON said that rather than change the competency
requirement and a couple of issues concerning misdemeanors, if the
reciprocal agreement is signed at the level of permit managers,
Alaskan's could be allowed to carry firearms with their concealed
handgun permit in other states.
Lieutenant Hudson said he supports changing the renewal process
allowing applicants to file for a permit renewal up to 60 days
after the expiration of their permit. He also thinks that
eliminating the thumbprint on the renewal is an excellent idea.
LIEUTENANT HUDSON stated he is confused about the photograph issue.
The CS indicates that if a person has had a permit for five years,
when applying for a renewal they can provide a photograph that was
taken two years before they applied for their initial permit. The
whole idea of a photograph is to allow for the change in a persons
appearance.
LIEUTENANT HUDSON said that changing the law from perjury to
unsworn falsification fits in with the Title 28 vehicle laws. Not
needing a notarized signature will save people money and make the
process more convenient.
Number 1982
CHAIRMAN TAYLOR asked what is required now for a drivers license
photograph.
LIEUTENANT HUDSON responded a photograph is good for a maximum of
ten years by allowing a sticker to put on the back of the license
in lieu of updating the photograph.
MR. DUANE UDLAND, representing the Alaska Association of Chiefs of
Police, said the Association has a problem with some of the
language in the bill. On page 4, section 6, it appears that a
permit can no longer be revoked for false information, and the
Association feels that losing a permit should be an option.
Another problem is on page 7, section 12(a)(2), "crimes against a
person" is the only misdemeanor that counts--burglaries and thefts
should be considered for screening with the possible outcome of a
denied permit.
CHAIRMAN TAYLOR noted that some of Mr. Udlands concerns have been
addressed in CSSB 294.
MR. PAT JOHNSON, a member of the NRA and a concealed carry
instructor in Homer, said, overall, he thinks CSSB 294 is a good
bill. He likes Lieutenant Hudson's suggestion for reciprocity as
it is a continuing problem. He said that 95% of his students do
not need competency testing because students do a lot of dry firing
during a course, and he will not sign off on a certificate if he
does not like someone's attitude or if they do not have the ability
to fire a gun safely.
SJR 15-CONST. AM: APPOINTMENT OF JUDGES
MS. STEPHANIE COLE, Administrative Director for the Alaska Court
System, said the retention system that is currently in place in
Alaska is often cited as a national model--a model that balances
judicial accountability against judicial independence preserving a
judge's ability to make decisions impartially against the public's
very important right to hold judges accountable. Judicial
accountability is a concern to the legislature and also to the
court. When talking about judicial accountability there are three
types of accountability--political, decisional and behavioral.
Political accountability is what is accomplished through a
retention election, where the public can either approve or remove
a judge. Decisional accountability is related to the issue of
whether a judge, in a particular case, is correct or incorrect--
this type of accountability usually comes through the appellate
process. Behavioral accountability is involved when dealing with
judicial misconduct--primarily this is accomplished through the
judicial discipline system. Shortening the retention period, that
is proposed in the CS, creates a situation where the line between
political accountability and decisional accountability start to
blur, much to the detriment of the justice system. The period
between judicial retention elections in Alaska is very middle of
the road, they are in the middle of where most merit selections
are. If the retention periods are shortened there will be a
situation where judges are under increased pressure to rule in
accord with the current political or public atmosphere. The whole
system of government is set up to avoid this from happening. An
important obligation of a judge is to preserve and protect the
rights of the minority against which the will of the majority
should never be able to prevail. By shortening retention periods,
it is more likely that political campaigns will be waged against
individual judges because of an unpopular decision.
Tape 00-17, Side B
MS. COLE said that deciding high profile cases is a difficult thing
for judges to do at any time but it is especially difficult when a
judge is facing an eminent retention election. The court feels it
would be a backward step to increase the frequency of retention
elections. More frequent campaigns against judges up for election
is a predictable effect, and as campaigns are mounted against
judges it can be expected that judges can and will mount counter
campaigns. Judicial fund raising and campaigning is becoming a
national issue in this country and it brings in the issue of a
judges neutrality. Only a few cases become controversial, and
judges need to be evaluated at regular paced intervals on how they
are handling all of their cases not just the highly visible cases.
MS. COLE commented that aside from judicial independence concerns,
shortening the period between retention elections will have the
effect of de-qualifying the qualified applicants seeking judicial
positions. It will be harder to hold onto qualified people because
their job security is less certain with more frequent retention
elections.
Ms. Cole read a quote by Edward Madiera, Chairman for the ABA's
Commission on Separation of Powers and Judicial Independence:
"Judicial independence is not for the protection of judges, but for
the protection of the public." The judicial system feels that
protecting the structural integrity of the system is paramount, and
this resolution should not move forward.
Number 2242
MR. BILL COTTON, Director for the Judicial Council, stated that the
Judicial Council is an independent agency in the judicial branch of
government. They participate in the selection of a judge and the
evaluation of a judge who is up for retention. After this process,
they make their recommendations and information known to the
public. The Judicial Council's job is to try to assure as much
excellence in the judicial branch and the judiciary as specifically
as it can. This involves balancing judicial accountability and
judicial independence. The Alaska Judicial Council does a more
thorough evaluation of judges and makes more information public
than any other state in the country. Alaska is a model for other
states. The Judicial Council conducts surveys of police officers,
attorneys, jurists, child protection workers, etc. This oversight
tends to keep judges more responsive to the electorate. One of the
basic principles this country was founded on is judicial
independence--citizens constitutional rights need to be protected
even if the powers that be would like a constitutional amendment
forgotten. The Council opposes shortening the retention term
because it believes the balance of judicial accountability will be
upset. It will be harder to get applicants, and it is critical to
get quality applicants. By decreasing the stability of the job,
there will be less incentive for quality private practitioners to
apply for these positions. Costs will be increased in terms of the
state budget, and putting more judges on the ballot will decrease
the focus that the council and the electorate will bring against
individual judges. Superior court judges are up once every six
years and the judicial council does a preliminary evaluation two
years before that. There is also an attorney and peace officer
survey done twice every six years.
Number 2062
JUSTICE JAY RABINOWITZ commented that what the constitutional
framers of the Alaska constitution intended has been identified and
highlighted by his two colleagues. In his view, the Alaska
constitution is a brilliant compromise between the federal system,
the elected system and the merit system, and the system is not
broken. Alaska's judicial system has been corruption free in terms
of the judges performance of his or her judicial duty, this is a
tribute to the Judicial Council's screening and in the care they
take in the selection process. Now that the CS is in place, Judge
Stewart feels many of his remarks may be redundant, but he does
feel the system has worked well.
JUSTICE RABINOWITZ commented that talented lawyers without
political power and old family connections have been attracted to
Alaska's judicial system. This is a philosophy of the west, if a
person has talent they can apply for and obtain a judicial
position--an individual can control their destiny to a large
extent. This is the brilliance of Alaska's founding fathers, a
compromise between an elected system and merit retention. The
electoral electorate gets more information from the performance of
judges than any other political entity in the country. An educated
electorate is what is wanted and that is what Alaska is getting.
JUSTICE RABINOWITZ noted there is a movement to truncate the
retention period but initially a person in a judicial position has
to run within three years, causing a speedy evaluation and analysis
of the judicial officers performance. The stress on judges is
warranted because it is a trade off between merit selection and
accountability. He congratulated the committee on adopting the CS
and encouraged the legislature to keep the system as it is.
Number 1739
MR. LES GARA, an attorney in private practice in Anchorage,
commented that he echoes what Judge Rabinowitz had to say, and
before the legislature decides to disrupt the compromise that the
constitutional convention made, he urges the committee to look at
what the drafters of the Alaska constitution debated and why they
decided to adopt the system they did. Mr. Gara quoted Mr. Ed Davis
who was a delegate of the constitutional convention in 1955, "All
of us here want an independent judiciary, a judiciary that will not
be swayed by public will at any particular moment. A judiciary
that will not be subject to any political pressure. We've taken
the best means devised yet, to appoint and select qualified judges
and to keep judges free from outside political pressures and to get
rid of judges who are not able to properly do their job." The
constitutional convention looked at all of the competing proposals
of the time and they reached a compromise that has worked very
well.
Mr. Gara is happy the committee decided to drop the other
provisions of SJR 15, but the remaining provisions also increase
the amount of public pressure on the judiciary beyond what the
delegates in 1955 agreed to and thought was appropriate.
Mr. Gara addressed the statement made by Mr. Pauley of Senator
Lemans office that, "what we have here is a system that is broken,
that has judges bringing in their political biases and their
personal biases--deciding cases on their personal biases." This is
not what happens. One of decisions that spurred the bill prior to
SJR 15 was a decision by Judge Michalski in Anchorage that lent
some support to the idea that maybe homosexual marriage was legal
under Alaska law. Judge Michalski decided the case based upon what
he believed the law was, he did not decide the case based on his
personal biases, he based the case on what he thought the law
required.
MR. GARA said when a political issue is being debated, there should
be a politically biased decision--the legislature debates politics.
In court a case should not be decided by a judge who bases the case
on how the decision will look in the newspaper the next day.
Judges need to consider the law and all of the facts, but by
increasing the number of retention elections judges will be
encouraged to issue sound bite decisions.
Number 1477
MR. DAVID BUNDY, attorney and member of the Board of Governors for
the Alaska Bar Association, stated the legislature should adopt the
resolution that is currently proposed. There is no reason to
shorten retention terms for members of the judiciary. The system
has worked well and the impetus to change it is "wrongly headed."
It is the nature of the advisory process that there will always be
unhappy litigants and members of the public who object to
decisions. This does not say that judges are not doing their job,
it says that judges are doing their job because they are deciding
difficult issues on which people have strong feelings. It is the
duty of the judicial department to say what the law is. Subjecting
judges to elections in which they will have to engage in fund
raising is undesirable in the extreme because the only people who
will contribute money to judicial candidates are lawyers. Judges
need to be independent of organized interest groups and organized
political groups.
There being no further business to come before the committee,
CHAIRMAN TAYLOR adjourned the meeting at 3:11 p.m.
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