03/23/2004 03:40 PM Senate STA
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= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
March 23, 2004
3:40 p.m.
TAPE (S) 04-20-21
MEMBERS PRESENT
Senator Gary Stevens, Chair
Senator John Cowdery, Vice Chair
Senator Bert Stedman
Senator Lyman Hoffman
Senator Gretchen Guess via teleconference
MEMBERS ABSENT
COMMITTEE CALENDAR
SENATE BILL NO. 224
"An Act relating to lowering the legal level of intoxication for
operating a motor vehicle, aircraft, or watercraft to .02
percent or the equivalent for persons under 21 years of age;
relating to implied consent for purposes of determining
consumption of alcohol; and providing for an effective date."
HEARD AND HELD
SENATE BILL NO. 354
"An Act relating to complaints filed with, and investigations,
hearings, and orders of, the State Commission for Human Rights;
making conforming amendments; and providing for an effective
date."
HEARD AND HELD
SENATE BILL NO. 246
"An Act relating to the commission of an offense or a juvenile
delinquency act involving the victim's race, sex, color, creed,
physical or mental disability, sexual orientation, ancestry, or
national origin; relating to sentencing, informal adjustment,
and adjudication for those offenses and acts; relating to a
diversity tolerance program for certain juvenile delinquency
acts; relating to a civil cause of action for certain acts
involving discriminatory harassment; and providing for an
effective date."
MOVED SB 246 OUT OF COMMITTEE
SENATE BILL NO. 356
"An Act relating to qualifications of voters, voter
registration, voter residence, precinct boundary modification,
recognized political parties, voters unaffiliated with political
parties, early voting, absentee voting, ballot counting, voting
by mail, initiative, referendum, recall, and definitions; and
providing for an effective date."
BILL POSTPONED
PREVIOUS COMMITTEE ACTION
BILL: SB 224
SHORT TITLE: MINORS DRIVING AFTER CONSUMING ALCOHOL
SPONSOR(s): SENATOR(s) COWDERY
05/14/03 (S) READ THE FIRST TIME - REFERRALS
05/14/03 (S) TRA, STA
05/17/03 (S) TRA AT 11:00 AM BUTROVICH 205
05/17/03 (S) Heard & Held
05/17/03 (S) MINUTE(TRA)
02/24/04 (H) TRA AT 1:30 PM CAPITOL 17
02/24/04 (S) Moved Out of Committee
02/24/04 (S) MINUTE(TRA)
02/25/04 (S) TRA RPT 2DP 2NR
02/25/04 (S) DP: COWDERY, WAGONER; NR: THERRIAULT,
02/25/04 (S) LINCOLN
02/25/04 (S) FIN REFERRAL ADDED AFTER STA
03/23/04 (S) STA AT 3:30 PM BELTZ 211
BILL: SB 354
SHORT TITLE: HUMAN RIGHTS COMMISSION PROCEDURES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/27/04 (S) READ THE FIRST TIME - REFERRALS
02/27/04 (S) STA, JUD
03/23/04 (S) STA AT 3:30 PM BELTZ 211
BILL: SB 246
SHORT TITLE: HATE CRIMES/DISCRIMINATION/TOLERANCE PROG
SPONSOR(s): SENATOR(s) LINCOLN
01/12/04 (S) PREFILE RELEASED 1/2/04
01/12/04 (S) READ THE FIRST TIME - REFERRALS
01/12/04 (S) STA, JUD
03/23/04 (S) STA AT 3:30 PM BELTZ 211
WITNESS REGISTER
Crystal Lowndes
Staff to Senator John Cowdery, sponsor
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 224 for the sponsor
Jeffrey Johnston
No address provided
POSITION STATEMENT: Testified on SB 224
Cindy Cashen
Executive Director, MADD Juneau
211 4th Street, Suite 314
Juneau, AK 99801
POSITION STATEMENT: Testified in support of SB 224
Lieutenant Al Storer
Alaska State Troopers
Department of Public Safety
PO Box 111200
Juneau, AK 99811-1200
POSITION STATEMENT: Testified on SB 224
Patty Ware
Division Director of Juvenile Justice
Department of Health &
Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Testified on SB 224
Barbara Brink
Alaska Public Defender Agency
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Had reservations about parts of SB 224
Jan DeYoung
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Clarified aspects of SB 354
Paula Haley
Executive Director, Human Rights Commission
Office of the Governor
800 A St Ste 204
Anchorage, AK 99501-3669
POSITION STATEMENT: Testified on SB 354
Mike Lieberman
No address provided
POSITION STATEMENT: Testified on SB 246
Nick Kotavich
Tlingit Haida Leadership Council
Juneau, AK 99801
POSITION STATEMENT: Testified in support of SB 246
Natalie Landreth
Staff Attorney
Native American Rights Fund
POSITION STATEMENT: Supports SB 246
Don Bremmer
Tlingit Elder
Juneau, AK 99801
POSITION STATEMENT: Supports SB 246
Denise Morris
Alaska Native Justice Center
121 W. Fireweed Lane, Ste 240
Anchorage, AK 99503
POSITION STATEMENT: Supports SB 246
Celeste Hodge
Municipality of Anchorage
4501 South Bragaw
Anchorage, Alaska 99508
POSITION STATEMENT: Supports SB 246
A. W. Fullenwider
No address provided
POSITION STATEMENT: Supports SB 246
ACTION NARRATIVE
TAPE 04-20, SIDE A
CHAIR GARY STEVENS called the Senate State Affairs Standing
Committee meeting to order at 3:30 p.m. Present were Senators
Cowdery, Stedman, and Chair Gary Stevens. Senator Guess
participated via teleconference and Senator Hoffman arrived
shortly.
SB 224-MINORS DRIVING AFTER CONSUMING ALCOHOL
CHAIR GARY STEVENS announced SB 224 to be up for consideration.
SENATOR JOHN COWDERY motioned to adopt committee substitute (CS)
\S version for SB 224. There being no objection, it was so
ordered.
CRYSTAL LOWNDES, staff to Senator John Cowdery, bill sponsor,
explained that the CS for SB 224 is based on the Texas model for
zero tolerance of underage drinking and driving. The sponsor is
worried about this becoming a larger problem and believes that
if the consequences aren't stiff enough, underage DUIs will
continue to escalate.
CHAIR GARY STEVENS asked Ms. Lowndes to explain how the CS
changes the most recent version of the bill.
MS. LOWNDES explained that it is currently an infraction for a
minor to operate a vehicle after consuming alcohol and the CS
makes the offense a class B misdemeanor, which is a criminal
offense.
SENATOR COWDERY asked her to explain how teens sometimes view
the issue.
MS. LOWNDES told members that it's not uncommon for teens that
have been stopped for underage drinking and driving to shift the
blame to someone else.
SENATOR GRETCHEN GUESS asked how this change would stand up in
court and what the process would be for determining that a minor
is operating a vehicle after consuming alcohol.
MS. LOWNDES said that a .02 blood alcohol concentration (BAC)
level is on the books now and the legislation doesn't change
that.
SENATOR GUESS asked if .02 is currently in statute.
MS. LOWNDES said yes.
SENATOR GUESS asked for the definition of vehicle.
MS. LOWNDES didn't think there was a definition in the statute.
SENATOR GUESS suggested clarifying the issue because there would
be a problem if this were to become law.
SENATOR COWDERY noted that Ms. Lowndes had spoken with the
Commissioner of Public Safety.
MS. LOWNDES added that Commissioner Tandeske gave her the
impression that this wouldn't change how things are done. She
stated:
It won't change the process of what they go through
when they're pulled over on the side of the road and
they're cited -they're released to their parent's
custody.... The Commissioner has also led me to
believe that there are laws currently in place,
specifically AS 04.16.050, it's the minor consuming,
possession, and consumption law. Section D of that law
states that a third offense is a class B misdemeanor,
which is the same as we're trying to pass here. So
along with that goes all the same penalties that are
in place in this CS. And those are already on the
books.
CHAIR GARY STEVENS summarized that the first arrest wouldn't
result in jail time, but a future arrest could bring a prison
term.
MS. LOWNDES added: "We wanted to keep the penalty for first time
offenders as close to what they are now because if they're a
first time offender you don't need to worry about them repeat
offending. Only 20 percent of the people that are cited with
MOVACs (minor operating a vehicle after consuming) are repeat
offenders. That's an estimate that I was given from MADD."
CHAIR GARY STEVENS asked if that means that 80 percent of those
stopped the first time aren't arrested again.
MS. LOWNDES said that's correct.
SENATOR COWDERY asked what information she got from the
Department of Motor Vehicles (DMV).
MS. LOWNDES told him that about 350 minors had their licenses
revoked for some reason in the past year.
SENATOR COWDERY asked about repeat offenses.
MS. LOWNDES didn't believe the state tracked the number of
licenses that were revoked two or more times.
SENATOR STEDMAN noted that the BAC level for adults is .08 then
asked for confirmation that this proposal was asking for a .02
BAC level.
MS. LOWNDES said the current intoxication level for a minor is
.08. In the original form, the bill lowered the level to .02 for
anyone less than 21 years of age. They have since changed the
bill to deal with a completely different statute so the BAC
level would remain at .08.
SENATOR COWDERY clarified, "This is not that you're driving
under the influence. I'm trying to stop our youths from drinking
and driving any amount."
SENATOR STEDMAN said he understood that, but he got a little
confused in the testimony. He asked if the bill would reduce the
current .08 BAC level to .02 for minors.
MS. LOWNDES nodded.
SENATOR STEDMAN reviewed the fiscal note and said it looks as
though 400 to 600 additional cases are anticipated with the more
stringent requirements.
MS. LOWNDES said those fiscal notes are based on the original
bill, but she would get new fiscal notes now that the CS was
adopted.
SENATOR STEDMAN opined they would be similar. because the same
.02 percentage is used.
MS. LOWNDES said, "We're not convicting them of a DUI at .02.
We're simply taking a law that's already in place and making it
a misdemeanor rather than an infraction."
SENATOR STEDMAN asked if there would be two levels.
MS. LOWNDES said that's correct.
SENATOR STEDMAN referred to page 3, line 13 of the CS and said
he didn't have any concerns about the concept, but he didn't
want to impose undue penalties on youths which would adversely
affect them later on. He suggested that license revocation and
other behavior modification was preferable to making them
criminals.
MS. LOWNDES pointed out that, under current law, the license is
revoked, the youth may be given community service, and a fine
may be assessed. She added, "It doesn't seem to be keeping
anyone from thinking twice about it so this merely makes it so
that repeat offenders, somebody that's coming in on their third
may not get a jail sentence, but somebody who's coming in on
their fourth, fifth, sixth - it's up to the judge...but we want
to have something there."
SENATOR STEDMAN asked how they decided on a .02 level.
MS. LOWNDES said this is an effort to make youths realize that
driving with any amount of alcohol in their system is against
the law.
SENATOR STEDMAN agreed with the direction, but he wanted to make
sure that youthful indiscretions weren't unnecessarily
penalized.
SENATOR GUESS noted that the definition of minor isn't in the
bill and asked if the intent is to include the ages of 14 to 21.
MS. LOWNDES said that's correct.
SENATOR GUESS thought it was interesting that minors weren't
defined as those less than 21 years of age. She then asked if
the definition of "consumed any quantity of alcohol" might be in
regulation because she couldn't find it in statute. "I'm
confused also between a .08 and .02." she said, because it's not
in statute.
CHAIR GARY STEVENS said a trooper was on the off net and could
respond if Ms. Lowndes didn't recall.
MS. LOWNDES said she would like that.
SENATOR STEDMAN continued to express reservations about the
long-term impact the bill might have on young people.
SENATOR COWDERY said they were simply trying to curtail drinking
at a young age and added that a lot is left to the judge's
discretion.
CHAIR GARY STEVENS commented that Senator Guess's question about
age is important and asked for verification that a 13 year old
may not operate motor vehicles under any condition.
MS. LOWNDES said she wasn't sure.
CHAIR GARY STEVENS said they could ask the troopers.
SENATOR STEDMAN stated: "For those folks that weren't in the
Senate Finance Committee last Monday, the Governor came in and
had some opening remarks and one of the remarks he made was the
amount of money that the State of Alaska pays concerning alcohol
abuse relative to schools. It's a large amount so it's duly
noted that it's a problem within the state - substance abuse and
alcohol in particular."
JEFFERY JOHNSON testified via teleconference to express support
for raising the offense to a class B misdemeanor. He reported
that he had nine DWIs and didn't do any jail time until the
fifth time. He said that if he'd been sent to jail sooner, he
might have faced the music and sought help for his alcoholism
sooner.
SENATOR COWDERY asked how much time he spent in jail and when he
took responsibility for his actions.
JEFFERY JOHNSON said he spent eight years, nine months and some
days in jail and began to take responsibility when he was
charged with a felony after his ninth DWI.
CINDY CASHEN, Executive Director of MADD Juneau, stated that she
was representing the four MADD Alaska chapters in support of the
CS for SB 224. "Driving is a privilege not a right. A person,
regardless of age, who continues to drink and drive should have
serious consequences, which would serve as a deterrent for
future drunk driving." It's repeat offenders who are responsible
for one-third of all DUI arrests and this bill deals with
habitual offenders, she said.
She reported that Fairbanks averages 40 drunken driving arrests
per month for those who are under 21 years of age. Between July
2001 and July 2002 there were 1,028 DUI arrests meaning that
about 480 of those were teenagers. Reading from DOT statistics
she said that of the 4,918 DUIs in Alaska in 2001, 3,107 were
first time offenders. There were over 1,000 second time
offenders and more than 450 third time offenders. "We have a
significant number of repeat drunk drivers and we have a
significant number of them that are teenagers." This is part of
a solution and judges would appreciate that the bill simplifies
matters.
SENATOR GUESS asked for clarification regarding no prison time
between .02 and .08.
MS. CASHEN said she's foggy on that point and Annie Carpeneti
would be the one to ask.
CHAIR GARY STEVENS asked Lieutenant Storer if it's true that a
13 year old can't legally operate a motor vehicle under any
circumstance.
LIEUTENANT AL STORER, Alaska State Trooper, stated that they
could drive on private property, but not on any other property.
CHAIR GARY STEVENS commented that, in that case, the bill
concerns youths 14 to 21 years of age.
LIEUTENANT STORER said that's correct, but that's not to say
that an officer wouldn't have contact with someone who is not
yet 14 and driving.
SENATOR GUESS asked if .02 is in regulation or statute because
she couldn't find it.
LIEUTENANT STORER said he honestly didn't know where the .02
came from.
PATTY WARE, Division Director for Juvenile Justice, Department
of Health and Social Services, stated that she was working from
\version Q so she was adjusting her testimony based on what she
was hearing.
She noted that much of the testimony was mixing apples and
oranges. "We have a set of DUI statutes that address drinking
and driving when the BAC is .08 or higher - for both juveniles
and adults," she said.
SB 224 isn't about DUI statutes, she emphasized. The reference
to .02 BAC is confusing, because it's not in existing statute or
the \S version committee substitute.
TAPE 04- 20, SIDE B
4:25 pm
CHAIR GARY STEVENS acknowledged the point.
MS. WARE said that current statutes regarding MOVACs don't
require any level of impairment. The department is supportive of
any proposal promoting a graduated sanction approach to this
serious concern, but they have significant concern about raising
the classification to a class B misdemeanor and the imposition
of jail time for a minor operating a vehicle after consuming
alcohol.
She pointed out that there are already provisions in statute to
send a DUI offender to jail. Furthermore, she said:
We in our own juvenile facilities have juveniles
report to secure juvenile facilities on a DUI charge.
That can and does already happen. The concern that we
have with respect to jail time with respect to this
particular statute is that MOVACs are in fact, a
status offense meaning that it's an offense based on
virtue of your age. We don't have similar statutes for
adults.
There are federal requirements in terms of the federal
Juvenile Justice and Delinquency Prevention Act that
put us in a bind in terms of any kind of incarceration
for status offenses. The administration has imposed
two specific bills, HB 487 and SB 340, which are
moving through the bodies as we speak, in terms of
helping us as a department, essentially beef up our
compliance with the JJDP Act and so this would, in
essence, make that more difficult.
With respect to other possible options, the other
thing I would say is that I'm not real clear that the
existing statute is broken. We all agree that we
should stiffen the penalties and increase them if in
fact offenders are coming back and repeating that same
offense. But I'm a little bit confused by this. I
don't know if we've got anybody on from DMV, but we
got data from the Division of Motor Vehicles and in
fiscal year 2003 there were 387 juveniles picked up
under the MOVAC statutes. In terms of the re-offense
rate it's fairly low - seven percent. Ninety three
percent of those kids were first time offenders and
did not come back.
Would we like it to be higher than ninety three
percent? Yes. Does that mean that we should make the
repeat offense a [class] B misdemeanor? Changing the
sentencing structure in Alaska statutes is
complicated. It has, a lot of times, unintended
ramifications and consequences. I would propose to
this committee that we think very seriously before we
do that.
Again, other options are to keep it a violation, to
start with mandatory minimums both for the first time
and subsequent offenses.
SENATOR COWDERY asked if she had any information on how often
offenders re-offend.
MS. WARE said very few went beyond a second offense, but DMV
could articulate that better than she.
SENATOR COWDERY said his question was whether they were second,
third, fourth, or fifth time offenders and then reflected on Mr.
Johnson's testimony.
MS. WARE warned that, "We need to be very mindful, again, at the
difference between adults and juveniles - of the requirements
that we have to address juveniles in a different manner than we
work with adults. That doesn't mean that that sometimes doesn't
include periods of incarceration. As I said, under existing DUI
statutes, we are allowed to put juveniles in jails when they
commit those offenses. But this particular approach is, in fact,
a status offense and that, as I said, poses some additional
problems. I would also submit to the committee that in terms of
repeat offenders, we need to be focused, not just on holding
them accountable, which is a critical piece, but we also need to
be focused on what we need to do to make sure they get whatever
assistance and/or screening and/or treatment so that they don't
come back to us. It's a complex issue and I think that sometimes
we might be tempted to try to solve that through means that are
too simple."
SENATOR GUESS asked her to explain how the bill might impact
compliance with the JJPD Act and therefore federal funds.
MS. WARE said they aren't allowed to put status offenders in
either juvenile or adult jails. Status offenses are based on age
and are anything that doesn't apply to adults.
SENATOR GUESS repeated there's no ability to impose jail time
for offenses that are based on age.
MS. WARE noted that there are some obscure exceptions.
SENATOR GUESS said she just wanted to clarify that point.
SENATOR COWDERY announced that he had to leave and thanked the
Chair for hearing his bill.
CHAIR GARY STEVENS stated that there were several more people to
speak to the bill.
BARBARA BRINK, Director of the Alaska Public Defender Agency,
testified via teleconference to say she wanted to explain how
the bill might affect her agency. She noted that she was working
from the \I version rather than the \S version. She continued:
As I understand it, the bill is attempting to create a
new offense for minors. That is, minors having
consumed any alcohol operating a motor vehicle. This
currently is in our statute books as an offense, but
it is listed at what is called the infraction level.
A person who is convicted or found guilty of that
offense cannot currently be sentenced to jail time. As
I understand the current CS, that is to change and
this crime is to become a class B misdemeanor offense.
And that frankly Mr. Chairman has a huge impact on my
agency.
If a person is charged with an infraction, they are
not entitled to the free assistance of counsel if they
are indigent. However, if a person is charged with a
class B misdemeanor, they are entitled to the full
assistance of counsel and, frankly, to the right to
have a jury trial. So I think these are some of the
unintended consequences that are going to flow from
this bill.
I prepared a fiscal note for the original bill based
on the figures that the DMV gave all of us. And based
on the figures they gave us, we were approximating
that we would need the services of one additional
attorney in the Anchorage area since most of our minor
consuming and DWI cases involving minors have been in
Anchorage and Palmer.
I was asked whether my fiscal analysis would change
now that this crime went down to a class B misdemeanor
from the original bill, which had it as a class A
misdemeanor, and my answer, frankly, is no. There
isn't a definable quantity of less work involved in
representing somebody whether it's a class A
misdemeanor or a class B misdemeanor. The full panoply
of work experiences that we need to do in order to
provide the effective assistance of counsel would
still be required if it was a class B misdemeanor. And
frankly, it would still be required even if a person
was not authorized to receive jail time until it was
their second, third, or fourth offense.
As you might recall, the Legislature recently tried to
create a similar type of scheme involving minor
consuming cases. In the minor consuming cases the
child would initially get treatment and community work
service. It wasn't until their third offense that it
would be called a class B misdemeanor and they were
actually eligible for jail time. But this was
litigated before the Alaska Court of Appeals and the
court agreed that that makes it a class B misdemeanor.
If you can go to jail based on a conviction for an
earlier offense, even for those earlier offenses -
even if you can't get jail on those offenses you are
entitled to have representation and to have a jury
trial.
Frankly, the impact to the Public Defender Agency on
that change in the minor consuming statute was
enormous. Back in FY01, our agency represented a total
of 58 children charged with minor consuming. Last year
we represented 892 children on minor consuming
charges. So this has the potential of being a very
large change in the way we process these cases, and a
very large change in the way we defend these cases,
and a very large change in the punishment we impose. I
guess what we have to decide, as a matter of policy,
is if the change in punishment is worth all those
other costs that it is going to take.
I must agree we should remember that we are not
talking about a drunk driving bill. What we are
talking about is a very low presumption that alcohol
has been consumed. And as Patty Ware testified,
certainly the minors we represent now who have above a
.08 in their blood, they go to jail. They go to a
secure youth facility. They serve the same kind of
jail time that adults do.
Though we certainly already are tough on those kids
who are driving under the influence, the question is
how tough do we want to be on kids who have just
consumed any minor amount of alcohol, no matter how
small. I would have to say that my sense is that
unless we are prepared to pay for the huge increases
in prosecution defense and incarceration of these
children, that perhaps we should keep it at the level
that it currently is.
KERRY HENNINGS with the Department of Motor Vehicles stated that
she was available for questions.
CHAIR GARY STEVENS said he was sorry that Senator Cowdery had to
leave, but several questions were raised and it appeared that
the bill needed further work. He asked Ms. Lowndes to work with
the Department of Juvenile Justice and Senator Guess to satisfy
some of the issues that were raised.
MS. LOWNDES said she would be happy to do so.
CHAIR GARY STEVENS announced that it wasn't his intention to
slow the bill, rather to develop a reasonable bill that they
could all support. SB 224 was held in committee.
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES
CHAIR GARY STEVENS announced SB 354 to be up for consideration
and called on Ms. DeYoung.
4:40 pm
JAN DEYOUNG, Assistant Attorney General, Department of Law, said
she would provide a walk through on SB 354, which affects the
procedures of the Alaska State Commission for Human Rights. It
would affect the way cases are brought to hearing, how
procedures are applied at the commission hearings, and it would
expand the discretionary authority of the executive director in
determining which cases to bring to hearing as well as clarify
the commission's remedial authority if a human rights law
violation is found. She continued:
A key part of this bill is the expanded discretion of
the executive director to choose among the complaints
to take to hearings. Several years ago the Alaska
Supreme Court issued a decision in a case called
Department of Fish and Game versus Andre Meyer. And
the impact of that case was to require commission
staff to pursue to a hearing every complaint that the
commission, in investigation, found was supported by
substantial evidence. The effect of this ruling was to
prohibit the commission from exercising discretion in
allocating its resources to the most strong or
deserving cases.
The bill would give the executive director the power
to choose the cases to take to hearing and to dismiss
inappropriate other cases in a procedure we call an
administrative dismissal.
Section 1 would provide the complainant the authority
or the ability to withdraw complaints at any time
before the conclusion of the investigation and
settlement or conciliation procedures at the
commission. This authority is limited after an
accusation would be issued and the accusation would be
the initiation of the formal procedures going forward
to hearing.
Section 2 would add a statute of limitations to the
commission's laws. They currently have in regulation a
180 day time period after the commission of an
unlawful practice for the subject of the practice to
bring a complaint to the commission. The bill would
move that into the statute.
Section 3 addresses the investigation and conciliation
parts of the commission law and it makes some
housekeeping amendments to law to require certain
kinds of paperwork if the case is resolved at the
conciliation stage. It also makes it clear that the
commission staff have the power in that conciliation
or settlement phase of the case to compromise a claim
for damages. It's not necessary that it conciliate at
full damages or full relief for the complainant.
Section 4 of the bill is the section that sets out in
detail the expanded powers of the executive director
to choose the complaints that the staff will take to
hearing before the commission.
By expanding the discretion, the director will be able
to take such factors into account as the strength of
the evidence, the strength of an employers affirmative
defenses, the significance of the alleged violation,
the history of the complaints against the employer,
the level of cooperation of the complainant, and to
account which cases to go forward on.
The executive director would be able to
administratively dismiss the cases that don't meet
this test.
To ensure that the administrative dismissal doesn't
affect the complainant's rights to pursue other
remedies that are often available in these cases, it's
a dismissal without prejudice. Basically, the ability
to obtain the free assistance of an attorney at the
commission's office to go forward is somewhat limited,
but if that process is not available, it's not going
to limit the complainant's ability to go and get
outside counsel to pursue the same complaint in court
or in other administrative agencies, which have
remedies available.
Section 5 provides that this discretion rests
exclusively with the executive director. It's not an
issue that can be appealed to the commissioners.
Section 5 also makes a number of changes to procedures
if the case is referred for hearing. Most importantly,
it applies the Administrative Procedures Act
procedures to the commission, which provides for a
whole host of procedures that are used in many other
administrative hearing agencies in the state. It
requires the executive director to issue an accusation
after decision is made to go to hearing and it
restricts changes to that accusation upon a showing of
good cause.
Any change that adds a new charge of unlawful
discrimination must be supported by an investigator's
finding of substantial evidence. Such an amendment
would have to go back to the conciliation phase to
allow the opportunity for the employer to consider an
address to charge before it goes to a formal hearing.
This conciliation opportunity is very beneficial for
the large institutional employers because they may not
have - the individuals making decisions about the case
may not have first hand information of what actually
happened in the work place and it's a good opportunity
to review with the commission staff or whatever the
evidence and charges are and provides an opportunity
for settlement.
It also establishes the burden of proof and the burden
of proof is the standard preponderance of evidence. It
would apply both to the prima facie case and to
defenses.
Another change that it would be making would be to
allow a process similar to the motion for summary
judgment that is used in the courts so that a petition
for summary decision could be made to the commission
for those cases where there are no disputes of facts
and it's not necessary to go forward to a formal
hearing. The goal of this change would be to increase
efficiency.
Section 6 of the bill addresses the remedial powers of
the commission. It provides the commission with
authority to issue a remedy after the summary
procedure that I just described. Currently this
remedial authority follows a hearing so this would be
expanding that.
It clarifies the authority of the commission that
punitive damages and non-economic damages are not
among the remedies that may be awarded.
It also provides some specific changes to the awards
that can be ordered in employment cases and lays out,
specifically, the remedies that are available. In
addition to the common remedies that are already named
in the statute such as hiring, reinstatement, or
grading an employee with or without back pay. The bill
adds the remedy of payment of front pay, but it limits
the payment to a period of two years. It also limits
front pay awards to special circumstances. In other
words, if returning the employee to work would be
inappropriate for a number of reasons, either the
discrimination has harmed the employee so the employee
cannot work or the relationship has deteriorated so
return to the work is just not feasible.
The remedial provisions also would add a section
requiring mitigation, which means that for any damages
awarded for earnings, there must be an offset for
either actual earnings or earnings that could have
been earned if the employee made a reasonable and
diligent effort to obtain comparable employment.
Other changes to the bill are to require that if the
commission awards interest on an award, the legal
rates should be the rate that's applied - the same
rate that applies to the courts.
There are various other conforming amendments that
appear in the bill [Section 7-15].
CHAIR GARY STEVENS summarized saying that at the present time
the commission must investigate every complaint that is lodged,
regardless of merit. This bill would let the director's staff
make the decision on which cases to follow through on and which
were without foundation.
MS. DEYOUNG clarified that each complaint filed would have a
staff investigator investigate to see whether it was supported
by substantial evidence. If the investigator finds substantial
evidence, the next step would be the conciliation phase. At the
end of that phase the question would come up for the complaints
that haven't fallen out through no finding of substantial
evidence or the conclusion of conciliation for the executive
director to exercise discretion to go forward to the formal
hearing. The investigation would precede the decision.
CHAIR GARY STEVENS asked how many cases are dealt with and the
number that aren't carried beyond the conciliation phase.
MS. DEYOUNG did not have the information.
CHAIR GARY STEVENS pressed her for an estimate.
MS. DEYOUNG repeated that she didn't know.
CHAIR GARY STEVENS said, "Well, I understand what you're saying,
but why would we do this if there's likely to be no impact?"
MS. DEYOUNG said the court says there isn't any prosecutorial or
charging discretion. As resources become more limited this
discretionary use of the state's prosecutorial resources will
become more important.
PAULA HALEY, Executive Director of the Alaska State Commission
for Human Rights, stated that she didn't have data to answer the
exact question, but it would be a fairly small percentage of
cases that have a substantial evidence finding. There are a lot
of ways to close cases early on through mediation, withdrawal to
go to court, administrative dismissals, or predetermination
settlements.
It's likely that substantial evidence findings vary from 11
percent to the high teens depending on the year. During the
conciliation phase she estimates that about 50 percent of the
cases do conciliate. She continued to explain:
So we are talking about a fairly small percentage of
cases wherein under the court decision that was
referred to, we may be compelled to pursue the case to
public hearing.... The commissioners who met in Juneau
in March unanimously supported that particular
provision of the bill because they felt it important
as a matter of public policy, for the commission to be
able to take the most important cases, which clearly
have merit and important public policy concerns
forward. And maybe not the other cases which, as was
described by Ms. DeYoung, may be just on the boarder.
CHAIR GARY STEVENS wasn't sure he understood correctly and asked
what percent of cases are fully investigated.
MS. HALEY said she didn't have the data, but could provide it
later. Last year 81 percent of the voluntary mediation cases
were settled. "That can have a huge impact. Those cases are not
investigated. Subsequent to that, individuals may seek private
attorneys. One year maybe five percent would choose to go to
court because there are different remedies available. It varies
considerably from year to year," she said.
CHAIR GARY STEVENS said he appreciates that she couldn't answer
the question right then, but it's a fair question if they are
asking for the changes to how they do business. He wanted data
to back up the assertion that this would, "help contain costs
and ensure that the procedures are equitable to local
complainants and persons..." He asked her to follow up and get
the information to the committee.
MS. HALEY said, "I guess I would just say that we have to look
at those cases individually so it's very difficult for me to say
go back to the past year and say looking at this many cases, how
many under this new standard would we not have pursued because
under the current standard, we must pursue all of them. So I
think it's a bit of a difficult statistic if you actually want
to know the number of cases failing conciliation in any given
year that we would not pursue." She asked if that is really the
information he was requesting from the agency.
CHAIR GARY STEVENS said he didn't need an exact number, but
asking for an estimate is a fair request. "If you can't provide
it you can't provide it, but if you are asking us to make this
change, I think it's quite right that we ask what the impact is
going to be."
MS. HALEY said she was happy to provide that, but she wanted him
to understand that the commission didn't ask for the
legislation; it was introduced by the Governor's Office. There
are certainly positive aspects to the bill and they were working
closely with the Department of Law, but they weren't seeking the
legislation.
CHAIR GARY STEVENS said he understood. He then noted that
Senator Hoffman had joined the committee.
He asked Ms. DeYoung whether she was prepared to speak to the
fiscal note.
MS. DEYOUNG said she didn't know the status of the fiscal note.
She introduced David Jones from the Department of Law who was
also present and available for questions.
CHAIR GARY STEVENS told her the fiscal note says there wouldn't
be a fiscal impact on the Alaska Human Rights Commission and he
questioned that when the Governor's letter says the bill would
help contain costs.
He recognized Mr. Jones and asked Ms. Haley whether she had any
further testimony.
MS. HALEY responded to the fiscal note saying they worked with
the Office of the Governor to prepare the note and don't see
that there would be a negative fiscal impact. "There are aspects
of this bill that the commissioners unanimously support and some
concerns they have, but we are trying to continue our dialog
with the Department of Law to remedy some of the concerns," she
said.
SENATOR GUESS asked which sections they currently support.
MS. HALEY replied they support much of the bill. In particular
they support section 4, which would no longer require a hearing
in every case where substantial evidence is found. Cases with
clear merit or important public policy concerns would go
forward.
They are particularly concerned about the limits on the type of
relief that the commission can award. The front pay period
limitation, the standard that would require a complainant to
make both reasonable and diligent effort, the restriction for
amending complaints for good cause shown are the key points of
difference. They are talking with the Department of Law about
the limitations regarding remedial measures.
SENATOR GUESS asked if she and the commission were comfortable
with the executive director being able to dismiss a complaint
they judge isn't a benefit to the complainant, that wouldn't
represent the best use of commission resources, or would not
serve the best public interest. She thought the scope was rather
large.
MS. HALEY replied they are comfortable with that. It's in
keeping with what a number of the federal civil rights agencies
have been able to do for years. "Recognize that we are here for
the important opportunity to remedy an individual's experience
with unlawful discrimination," she said. Unlike the private
court system proceedings, they are here to support the public
policy against discrimination. They think it's important to have
the discretion and she didn't think there would be a significant
number of cases they wouldn't move on.
CHAIR GARY STEVENS asked if she was referring to page 4 line 18
relating to back and front pay when she said she was not
comfortable with the relief section.
MS. HALEY said it is primarily the limitation on front pay to
two years. The front pay remedy is used infrequently, but it can
be important.
CHAIR GARY STEVENS asked for a definition of front pay.
MS. DEYOUNG explained that back pay is the actual damage the
individual suffered when they didn't earn their pay up to the
time that the decision is made. Front pay looks to or predicts
the future. Usually the individual will be restored to
employment, receive the promotion or go to work at another
position in which case front pay would not be appropriate. Front
pay is a rare remedy, she said.
CHAIR GARY STEVENS announced that there were still questions
that needed to be addressed and he would hold SB 354 in
committee.
SB 246-HATE CRIMES/DISCRIMINATION/TOLERANCE PROG
CHAIR GARY STEVENS announced SB 246 to be up for consideration.
He recognized Senator Lincoln.
SENATOR GEORGIANNA LINCOLN, sponsor, said she would give an
overview rather than reading the sponsor statement. She stated:
Over the years this committee and others certainly
have read and heard news stories about the hate crimes
that have been committed throughout our state. The
most recent one was November 2003 regarding a
paintball attack on a young woman in Anchorage. There
are many more hate bias motivated crimes that take
place that go unreported.
Anchorage reported 67 bias hate motivated incidents
with only 17 arrests between 1998 and 2002 when they
began keeping records of hate motivated incidents.
Aggravated assaults against Alaska Natives were the
highest reported crime during that time. Juneau
Douglas High School is currently reviewing recent
racial incidents that have occurred within the school.
A hate crime is any criminal offense committed against
a person or property, which is motivated in whole or
in part by the offenders' biases against race,
religion, ethnic, national origin group, or sexual
orientation.
SB 264 was drafted according to model legislation by
the Anti Defamation League that will be speaking from
Washington D.C. Currently 46 states and the District
of Columbia have enacted laws similar to the Anti
Defamation League model.
TAPE 04-21, SIDE B
5:15 pm
The current penalty enhancement statute does not apply
to anyone found guilty of a misdemeanor or most first
time felony offenders. Those crimes are presently
excluded from enhancement and that's really a critical
part of the bill. Those crimes are now included in
this bill. As an example, a person committing a class
B misdemeanor would be elevated to face a class A
misdemeanor charge if their actions are determined to
be motivated by prejudice bias or hate. If the crime
committed is a class A misdemeanor, it would be
elevated to a class c felony and so on.
In the case of the paintball attack in 2001, which was
videotaped, one young man was charged with seven
counts of a class A misdemeanor assault. Had this bill
been enacted, that individual would have been charged
with a class C felony. It's important to note that the
majority of hate crimes reported in Alaska are
assault, intimidation, and harassment and would
therefore be misdemeanors. Thus the majority of hate
crimes are totally outside the scope of aggravating
factors already in law.
Why is there a whole new crime of motivation? It
serves merely as a sentence enhancement and
enhancements are the safest, most constitutional hate
crime laws that we've got.
This bill also adds gender to its hate crime
legislation. The inclusion of gender is important
because it sends a message that gender based crimes
also will not be tolerated. Legislators throughout the
country have realized that it is difficult to
distinguish the race based and religion based hate
crimes from gender-based crimes.
What sets the hate crimes apart from other acts of
violence is the psychological damage that they leave
behind. The American Psychological Association
determined that victims of hate crimes suffer the
symptoms of posttraumatic stress disorder and that
there are social and economic ramifications to this
type of crime as well.
Of all racial groups in Alaska, Alaska Natives suffer
the highest rate of victimization. We really have to
educate those around us, those that we work with, our
young people, that we must condemn those crimes
against humanity.
If there's a way that we can prevent hatred, prevent
bias because of different races and because of
different religions then we ought to do that.
CHAIR GARY STEVENS apologized for the lateness of the hour and
noted that he and Senator Stedman had a meeting to attend in
just ten minutes. There were a number of people who wanted to
testify, but there wasn't time to hear from everyone. The bill
would be heard in the Judiciary Committee next and everyone that
wasn't able to testify would have an opportunity to speak at
that time.
SENATOR BERT STEDMAN remarked that this is a society wide
problem. He noted that the analysis on hate crimes between 1998
to 2002 shows there were 15 incidents with Blacks, 15 incidents
with Alaska Natives 3 concerning Whites, two Islamic, and three
Jewish.
MIKE LEBERMAN, Washington Counsel for the Anti Defamation
League, testified via teleconference in support of SB 246. Hate
crime statutes are very important and they compliment bias
education work. It's best to prevent these crimes before they're
committed but once they do occur, the law shapes attitudes and
to have a broad inclusive statute in Alaska would be important.
This would add sexual orientation, which is important and for
the first time the important qualifier, "actual or perceived"
would be put into Alaska law.
These statutes are unquestionably constitutional and were
ratified by the United States Supreme Court in 1993. He couldn't
speak to the sentencing scheme because different states have
different penalty structures. However, they do support the
concept and approach wholeheartedly.
NICK KOTAVICH, Tlingit Haida Youth Leadership Team
representative, spoke in support of SB 246. He is the leader of
Undoing Racism, which is comprised of the JDHS Student Council
and Tlingit Haida Youth Leadership Team. He said:
This bill, if pushed, will send a message to those who
have harassed Natives to the point of physical
violence that it will no longer be tolerated.
A boy at my school continually harassed me to the
point of physical violence because I was Native. After
beating me up, he did it to at least three other
Natives. If this bill is passed, you as Senators will
be imposing consequences that will prevent these
racial behaviors from continuing and make our state a
safer place for all youths.
NATALIE LANDRITH, staff attorney with the Native American Rights
Fund in Anchorage, spoke via teleconference in strong support of
SB 246. She said she would focus on three specific legal aspects
of the bill.
· WHY A SPECIAL LAW FOR HATE CRIMES: Each hate crime has many
victims and the aim is to terrorize a victim simply because
they are a member of a group. The result is that each
member of the group is a victim. The U.S. Department of
Justice's policy guide to hate crimes characterizes them as
a virus that quickly spreads feelings of terror and
loathing across an entire community. The psychological
impact on that group is far, wide, and lasting. They send a
powerful message to the group that they aren't wanted or
welcome.
· HOW BIG IS THIS PROBLEM: They don't know. Eighty-five
percent of the jurisdictions across the country don't
report any hate crime activity so Alaska is a small
minority that has a measurable hate crime problem. They do
know that Natives are the most likely to be affected by
hate crimes.
· DON'T HATE CRIME LAWS CONFLICT WITH FREE SPEECH: That has
been covered in previous testimony, but she wanted to add
that SB 246 does not conflict. It fits squarely within the
floor and ceiling set by the U.S. Supreme Court.
SB 246 would send a message that Alaska isn't willing to
tolerate the victimization of Natives and others. "It sends a
message to the targets of hate crimes that they are welcome and
the law will protect them. It expresses a collective belief that
Alaska is stronger when we protect all of our citizens."
DON BREMMER thanked the committee for putting him on the roster
considering the lateness of the hour but he said, it's really
the lateness of getting this kind of legislation passed that the
committee should be discussing. At some point, Natives will get
tired of waiting patiently for such legislation. He made the
point that this bill addresses the end result of what minorities
are now facing at Juneau Douglas High School and have been
facing for generations.
MR BREMMER gave members copies of his written testimony and a
copy may be found in the bill file.
BARBARA BRINK stated that she would reserve her comments until
the Judiciary Committee heard the bill.
JOSH FINK said he too would reserve his comments.
CHAIR GARY STEVENS apologized for the time constraints.
DENISE MORRIS, President of the Alaska Native Justice Center
(ANJC), stated that ANJC, through the board of directors
supports passage of SB 246. She drew attention to the fact that
as a member of the bipartisan State of Alaska Commission on
Tolerance, which was created in part as a result of the
Anchorage paint ball incident, one of the recommendations was
the passage of hate crime legislation.
Although people don't like to think about or don't know that
hate crimes occur, they do and the psychological impact on the
victims is substantial. A number of the victims of the paint
ball attack were severely traumatized when they had to give
their victim impact statements. In both the Poindexter and the
Hunter hate crime serial rapist cases in Anchorage, all the
identified victims were Alaska Native women. In fact, Alaska
Native women are 4.5 times more likely to be a homicide victim
than any other rape across the United States.
"The bill reflects our values and signals that hate crimes
motivated are especially tragic. SB 264 alone cannot eliminate
bias and hate. We cannot legislate the hearts of people, but we
should hold them accountable for their actions, especially when
those actions are motivated by prejudice, bias and hatred." It
is time for this legislation, she said.
CHAIR GARY STEVENS asked her to send her written testimony.
Celeste Hodge, Deputy Director and Community Outreach Liaison,
testified via teleconference on behalf of the Municipality of
Anchorage in support of SB 246.
She said she was president of the NAACP for over a decade and in
that capacity, she worked endlessly to combat racism. Even so,
hate crimes continue to plague the nation and are on the
increase.
She described SB 246 as important legislation and a necessary
tool to help fight the continuing problem of hate crimes against
people because of their race, religion, national origin, gender,
disability or sexual orientation. It signals that crimes
motivated by hate are especially reprehensible because they are
not merely crimes against an individual, but rather crimes
against the entire community.
I would urge passage of SB 246 as written, she said.
CHAIR GARY STEVENS asked her to send her written testimony to
the committee.
A. W. FULLENWIDER, standing committee member of the Anchorage
Equal Rights Commission, spoke as a private citizen in support
of SB 246. Hate crimes strike fear in people who have done
nothing wrong, but are members of an identifiable group. It is
the government's responsibility to ensure equal protection for
all, she asserted.
CHAIR GARY STEVENS thanked Senator Lincoln for presenting the
bill and asked if she had concluding remarks.
SENATOR LINCOLN said she was comfortable with the testimony that
was given.
CHAIR GARY STEVENS asked for a motion.
SENATOR BERT STEDMAN motioned to pass SB 246 from committee with
individual recommendations and the attached fiscal note.
There being no objection, it was so ordered.
CHAIR GARY STEVENS adjourned the meeting at 5:45 pm.
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