Legislature(2005 - 2006)BELTZ 211

02/22/2005 03:30 PM STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 39 BALLOT PROPOSITIONS AND TITLES TELECONFERENCED
Heard & Held
*+ SB 95 COLLECTION OF DNA/USE OF FORCE TELECONFERENCED
Heard & Held
*+ SB 104 PERMANENT FUND DIVIDEND FRAUD TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
            SENATE STATE AFFAIRS STANDING COMMITTEE                                                                           
                       February 22, 2005                                                                                        
                           3:47 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Gene Therriault, Chair                                                                                                  
Senator Thomas Wagoner, Vice Chair                                                                                              
Senator Charlie Huggins                                                                                                         
Senator Bettye Davis                                                                                                            
Senator Kim Elton                                                                                                               
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 39                                                                                                              
"An Act relating to ballot titles and propositions; and                                                                         
providing for an effective date."                                                                                               
                                                                                                                                
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 95                                                                                                              
"An Act relating to the collection of, and the use of reasonable                                                                
force to collect, a deoxyribonucleic acid sample from persons                                                                   
convicted of or adjudicated delinquent for certain crimes."                                                                     
                                                                                                                                
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 104                                                                                                             
"An Act relating  to the crime of  misrepresenting permanent fund                                                               
dividend eligibility; requiring the  establishment of a permanent                                                               
fund  dividend  fraud investigation  unit  in  the Department  of                                                               
Revenue; and providing for an effective date."                                                                                  
                                                                                                                                
     HEARD AND HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB  39                                                                                                                  
SHORT TITLE: BALLOT PROPOSITIONS AND TITLES                                                                                     
SPONSOR(s): SENATOR(s) ELTON                                                                                                    
                                                                                                                                
01/11/05       (S)       PREFILE RELEASED 1/07/05                                                                               
01/11/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/11/05       (S)       STA, JUD                                                                                               
02/22/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
                                                                                                                                
BILL: SB  95                                                                                                                  
SHORT TITLE: COLLECTION OF DNA/USE OF FORCE                                                                                     
SPONSOR(s): SENATOR(s) BUNDE                                                                                                    
                                                                                                                                
02/07/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/07/05       (S)       STA, JUD                                                                                               
02/22/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
                                                                                                                                
BILL: SB 104                                                                                                                  
SHORT TITLE: PERMANENT FUND DIVIDEND FRAUD                                                                                      
SPONSOR(s): SENATOR(s) SEEKINS                                                                                                  
                                                                                                                                
02/14/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/14/05       (S)       STA, JUD                                                                                               
02/22/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Jessie Kiehl                                                                                                                    
Staff to Senator Kim Elton                                                                                                      
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Answered questions on SB 39                                                                              
                                                                                                                                
Jeff Feldman                                                                                                                    
No address provided                                                                                                             
POSITION STATEMENT:  Testified in support of SB 39                                                                            
                                                                                                                                
Joe Geldhof, Attorney                                                                                                           
Juneau, AK 99801                                                                                                                
POSITION STATEMENT:  Testified in support of SB 39                                                                            
                                                                                                                                
Annette Kreitzer                                                                                                                
Chief of Staff                                                                                                                  
Office of Lieutenant Governor Loren Leman                                                                                       
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Testified in opposition to SB 39                                                                         
                                                                                                                                
Senator Con Bunde                                                                                                               
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  prime sponsor SB 95                                                                                      
Lauren Wickersham                                                                                                               
Staff to Senator Bunde                                                                                                          
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Answered questions on SB 95                                                                              
                                                                                                                                
Investigator Giffer                                                                                                             
Alaska State Trooper,                                                                                                           
Department of Public Safety                                                                                                     
PO Box 111200                                                                                                                   
Juneau, AK  99811-1200                                                                                                          
POSITION STATEMENT:  Testified in support of SB 95                                                                            
                                                                                                                                
Dean Guaneli                                                                                                                    
Chief Assistant Attorney General                                                                                                
Criminal Division                                                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Testified on SB 95                                                                                       
                                                                                                                                
PORTIA PARKER                                                                                                                   
Deputy Commissioner                                                                                                             
Department of Corrections                                                                                                       
431 N. Franklin, Suite 400                                                                                                      
Juneau, AK 99801                                                                                                                
POSITION STATEMENT:  Testified in support of SB 95                                                                            
                                                                                                                                
SCOTT CAULDER                                                                                                                   
No address provided                                                                                                             
POSITION STATEMENT:  Expressed concerns about SB 95                                                                           
                                                                                                                                
BRIAN HOVE                                                                                                                      
Staff to Senator Ralph Seekins                                                                                                  
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Introduced SB 104                                                                                        
                                                                                                                                
SHARON BARTON, Director                                                                                                         
Permanent Fund Dividend Division                                                                                                
Department of Revenue                                                                                                           
PO Box 110400                                                                                                                   
Juneau, AK  99811-0400                                                                                                          
POSITION STATEMENT:  Answered questions on SB 104                                                                             
                                                                                                                                
CRIS POAG                                                                                                                       
Assistant Attorney General                                                                                                      
Civil Division                                                                                                                  
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Testified on SB 104                                                                                      
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR GENE  THERRIAULT called the  Senate State  Affairs Standing                                                             
Committee  meeting to  order  at 3:47:44  PM.  He announced  that                                                             
three bills were up for consideration  and that he did not intend                                                               
to take final action on any of the measures that day.                                                                           
                                                                                                                                
                                                                                                                                
             SB  39-BALLOT PROPOSITIONS AND TITLES                                                                          
                                                                                                                                
CHAIR THERRIAULT announced SB 39,  sponsored by Senator Elton, to                                                               
be  the first  order of  business. He  noted the  blank committee                                                               
substitute  (CS) and  asked the  sponsor which  version he  would                                                               
speak to.                                                                                                                       
                                                                                                                                
SENATOR KIM ELTON,  prime sponsor, replied he would  speak to the                                                               
blank CS  and motioned to adopt  \F version SB 39  as the working                                                               
document. There being no objection, it was so ordered.                                                                          
                                                                                                                                
3:49:32 PM                                                                                                                    
                                                                                                                                
Last year,  he explained, more  time was spent talking  about the                                                               
specific language  describing a  few ballot initiatives  than was                                                               
spent on the underlying policy. SB  39 is an effort to get beyond                                                               
that  and de-politicize  the process  through the  creation of  a                                                               
five member advisory panel.                                                                                                     
                                                                                                                                
The  lieutenant  governor would  appoint  two  proponents of  the                                                               
initiative  or  referenda  and   two  opponents.  The  lieutenant                                                               
governor would  also appoint  a fifth and  neutral member  from a                                                               
slate  that was  prepared by  the  Chief Justice  of the  Supreme                                                               
Court.  With  help  from state  attorneys,  the  committee  would                                                               
prepare the impartial ballot title  and proposition. In addition,                                                               
timelines  would  be  established  so  that  deadlines  that  are                                                               
inherent in any initiative process don't become an issue                                                                        
                                                                                                                                
The  constitution  is clear  that  the  lieutenant governor  will                                                               
prepare the  ballot language so  nothing in  SB 39 forces  him or                                                               
her to  use the  language the panel  develops. It  does, however,                                                               
provide  that if  different  language  is used  he  or she  would                                                               
outline why  the language  is different in  the pamphlet  that is                                                               
sent to all Alaska voters.                                                                                                      
                                                                                                                                
He stressed  that the genesis  of the  bill goes back  beyond the                                                               
previous  election to  when he  was the  chief policy  advisor to                                                               
former  Lieutenant Governor  Terry Miller  more than  two decades                                                               
ago.                                                                                                                            
                                                                                                                                
     I  can tell  you that  the most  difficult issues  that                                                                    
     were dealt with in  that lieutenant governor's office -                                                                    
     and  I suspect  in  each of  the subsequent  lieutenant                                                                    
     governor's office -  is how you do  the ballot language                                                                    
     because the  automatic assumption of voters  is that if                                                                    
     the ballot language is coming  from an elected official                                                                    
     who  is elected  on  a partisan  basis -  automatically                                                                    
     people have  filters that go up.  Especially the people                                                                    
     who  may be  behind the  initiatives -  and it  is very                                                                    
     difficult to get  beyond this. This is a  way, I think,                                                                    
     that  helps lieutenant  governors  because  it can  de-                                                                    
     politicize that ballot language issue.                                                                                     
                                                                                                                                
CHAIR THERRIAULT noted that the  court likes to maintain a bright                                                               
line so  he was  curious whether any  discussion had  taken place                                                               
regarding  the court  participating in  what could  be the  swing                                                               
vote on language it might ultimately pass judgment on.                                                                          
                                                                                                                                
SENATOR ELTON replied  he hadn't had any direct  contact, but the                                                               
model is used  in other instances such as  the Legislative Ethics                                                               
Committee.  Certainly  the  court   wouldn't  want  to  select  a                                                               
proponent or an opponent, but he  thought the court would want to                                                               
avoid  "any  suggestion of  bias  that  would  kick the  work  on                                                               
drafting ballot language into their system."                                                                                    
                                                                                                                                
CHAIR THERRIAULT referenced the  Legislative Ethics Committee and                                                               
said the court has made it clear  that it wouldn't act as a super                                                               
parliamentarian  and interject  itself  into the  operation of  a                                                               
separate branch  of government. A  better example,  he suggested,                                                               
would be re-districting.  Those plans always end up  in the court                                                               
system, he said.                                                                                                                
                                                                                                                                
SENATOR ELTON replied  it's a close and  interesting question and                                                               
he thought the  court would see it as a  balance. If suggesting a                                                               
slate  of   potential  advisory  panel  candidates   reduces  the                                                               
possibility  of the  court  ending up  with  the ballot  language                                                               
issue in  their laps, the  court would probably view  that effort                                                               
as a savings of time and litigation costs.                                                                                      
                                                                                                                                
He said  he wanted  to correct  a part  of the  sponsor statement                                                               
related to  cost of printing  last year. Media  reports indicated                                                               
the cost  of ballot  printing was about  $300,000, but  the costs                                                               
were actually in the neighborhood of $240,000 to $245,000.                                                                      
                                                                                                                                
SENATOR  THOMAS WAGONER  said he  understood the  intent, but  it                                                               
comes down to the fact  that the lieutenant governor could ignore                                                               
statute and proceed with his or her own language anyway.                                                                        
                                                                                                                                
SENATOR  ELTON  agreed  the   constitution,  which  grants  final                                                               
authority to  the lieutenant  governor, trumps  statute. However,                                                               
SB 39  sets up  a process  to create ballot  language and  in the                                                               
future  he suspects  lieutenant governors  will be  thankful that                                                               
the  process is  not seen  through a  partisan filter.  There's a                                                               
strong possibility  that the lieutenant  governor will  trump the                                                               
language developed  by the  advisory panel at  some point  in the                                                               
future, but that probably won't happen often.                                                                                   
                                                                                                                                
3:58:36 PM                                                                                                                    
                                                                                                                                
SENATOR CHARLIE  HUGGINS asked if  it means a  separate committee                                                               
for each initiative.                                                                                                            
                                                                                                                                
SENATOR  ELTON  replied there  would  be  potential for  multiple                                                               
committees.                                                                                                                     
                                                                                                                                
SENATOR  HUGGINS  suggested  this   could  be  an  administrative                                                               
nightmare  and  that he's  sure  that  Lieutenant Governor  Leman                                                               
learned a great  deal during this last  election cycle. Sometimes                                                               
corrective action  is more  evil than  what transpired,  he said,                                                               
and any time the court becomes involved it opens Pandora's box.                                                                 
                                                                                                                                
SENATOR ELTON said his brief  response is that there is certainly                                                               
an  associated learning  curve and  most elected  officials learn                                                               
from  experience.   More  than  likely  the   present  Lieutenant                                                               
Governor Leman is  more sensitive to the issues than  he may have                                                               
been two years ago, but  future lieutenant governors will also be                                                               
faced with a learning curve.                                                                                                    
                                                                                                                                
"The  worst thing  that could  possibly happen  is for  arguments                                                               
about ballot  language to get  into the judicial system.  That, I                                                               
think,  is  a  bigger  problem than  having  a  judicial  officer                                                               
appoint  one  of  five  people  to  try  and  prevent  that."  It                                                               
shouldn't  be   viewed  as  constraining  the   behavior  of  the                                                               
lieutenant governor because the  constitution doesn't allow that,                                                               
but this approach  to ballot language can  constrain the behavior                                                               
of  initiative sponsors.  It  would make  it  more difficult  for                                                               
initiative  sponsors  to  go  to court  and  argue  about  ballot                                                               
language  that  was  approved  by  a  non-partisan  and  balanced                                                               
committee.                                                                                                                      
                                                                                                                                
SENATOR  HUGGINS  commented   he  isn't  warm  to   the  idea  of                                                               
committees looking after the lieutenant governor.                                                                               
                                                                                                                                
CHAIR THERRIAULT read page 2, lines  5,6, and 7 and said it means                                                               
the lieutenant governor  may choose to make  adjustments that are                                                               
allowed  by the  statute.  It doesn't  mean that  he  or she  may                                                               
ignore the  statute. He noted  the language appears on  that page                                                               
as part of AS  15.45.180 then at the top of page 3  as part of AS                                                               
15.45.410 and  on the bottom of  page 3 as part  of AS 15.50.010.                                                               
He  questioned why  the  language is  repeated  in statute  three                                                               
times.                                                                                                                          
                                                                                                                                
4:03:12 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON  replied he believes it  was an effort to  make the                                                               
different components  of the election  statutes reflect  the same                                                               
notion. He asked his staff to confirm that.                                                                                     
                                                                                                                                
JESSE KIEHL,  staff to Senator  Elton, elaborated  explaining the                                                               
first  reference  amends  the initiative  laws,  the  second  the                                                               
referendum  laws  and the  third  reference  amends the  laws  on                                                               
constitutional amendments.                                                                                                      
                                                                                                                                
4:05:12 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked whether he had anything else to add.                                                                     
                                                                                                                                
MR. KIEHL replied Senator Elton  addressed all the primary points                                                               
but a  point to  emphasize further is  clear and  early deadlines                                                               
for work done on ballot  titles and propositions. "While the bill                                                               
is intended  to reduce the  likelihood of lawsuits,  certainly if                                                               
something should ... go to court,  there is adequate time for the                                                               
courts to address the question."                                                                                                
                                                                                                                                
CHAIR THERRIAULT asked about the suggested date changes.                                                                        
                                                                                                                                
SENATOR ELTON  said he would  ask Mr.  Keihl to explain  that and                                                               
members could  reference the document  on deadlines found  in the                                                               
packets.                                                                                                                        
                                                                                                                                
MR.  KIEHL explained  the original  version of  the bill  created                                                               
deadlines that counted backward 70  and 80 days from Election Day                                                               
to give the  Division of Elections time to print  ballots even if                                                               
there  were a  court  challenge. During  review  they found  that                                                               
existing statute  for constitutional amendments says  that within                                                               
30 days  after a  legislative session  in which  a constitutional                                                               
amendment is  proposed ends,  or 30  days after  a constitutional                                                               
convention  in   which  an  amendment   is  proposed   ends,  the                                                               
lieutenant  governor must  prepare the  title. The  CS says,  "30                                                               
days after the legislature last had  a crack at it, the committee                                                               
must meet and do its work and the lieutenant governor approve."                                                                 
                                                                                                                                
The timeframe  for referenda is  shorter so the timeline  for the                                                               
ballot title must be shortened  to get everything to the Division                                                               
of  Elections in  time to  print the  ballot. That  limit is  not                                                               
later than 21 days after the  date the petition is filed. Instead                                                               
of the 10-day timeframe the  lieutenant governor is given to make                                                               
any   necessary  changes   for  initiatives   and  constitutional                                                               
amendments,  the   lieutenant  governor  is  given   5  days  for                                                               
referenda. The reasoning  is that when referenda can  be voted on                                                               
in the  same year that the  signature is filed, the  timeframe is                                                               
tight.                                                                                                                          
                                                                                                                                
4:09:55 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT noted a number of people wanted to testify.                                                                    
                                                                                                                                
SENATOR ELTON mentioned the two zero fiscal notes.                                                                              
                                                                                                                                
CHAIR THERRIAULT acknowledged the fiscal  notes and called on Mr.                                                               
Feldman from an off net site.                                                                                                   
                                                                                                                                
4:11:17 PM                                                                                                                    
                                                                                                                                
JEFF  FELDMAN  advised  he  was part  of  the  recent  litigation                                                               
involving the  ballot language and when  he first heard of  SB 39                                                               
he  wasn't  sure whether  it  was  a  good  fix to  the  problem.                                                               
Ultimately  he   came  to  view   the  measure   as  non-partisan                                                               
legislation.                                                                                                                    
                                                                                                                                
He made  the point that  this is a  recurring issue in  the state                                                               
and that  a number of  lieutenant governors have  been defendants                                                               
in  lawsuits  brought because  of  action  they may  have  taken.                                                               
Certainly, Lieutenant  Governor Leman's  situation last  year was                                                               
not unique  and most  lieutenant governors  have had  to struggle                                                               
with this issue.                                                                                                                
                                                                                                                                
He  suggested two  issues were  worth  consideration. First,  the                                                               
present  system  is expensive  and  isn't  limited to  reprinting                                                               
costs.  Litigation expenses  are likely  to  be in  the high  six                                                               
figures.  The  second point  is  that  the current  system  makes                                                               
everyone associated with the process look bad.                                                                                  
                                                                                                                                
Referencing the  comment made  about not  wanting a  committee to                                                               
make  decisions  about  ballot  language, he  said  that  is  the                                                               
current  system.  The  lieutenant governor  doesn't  appoint  the                                                               
committee;  "ultimately five  people wearing  black robes  got to                                                               
decide what the language had to be."                                                                                            
                                                                                                                                
Although committees  don't move as  fast as the  individual, they                                                               
do move  more efficiently and  less expensively than  the process                                                               
used last  year, he  asserted. This process  would also  give any                                                               
lieutenant governor  help and  guidance and  make it  more likely                                                               
that language that is settled  upon would be impartial, accurate,                                                               
and the  product of both sides  of an issue. Currently,  once the                                                               
lieutenant governor  decides on  the language, proponents  of the                                                               
initiative have  no opportunity for  review ahead of time  and no                                                               
opportunity  to communicate  with the  lieutenant governor  as to                                                               
whether they like  or don't like it. This suggested  fix is worth                                                               
serious consideration, he concluded.                                                                                            
                                                                                                                                
SENATOR WAGONER noted that legislation  passed last year relating                                                               
to the initiative  process should slow the  number of initiatives                                                               
going to ballot, but he didn't  think this measure would keep the                                                               
initiative process out of the  court system. "When you've got two                                                               
sides arguing the issue, I think  you're going to end in court 90                                                               
percent of the time anyway," he remarked.                                                                                       
                                                                                                                                
4:18:44 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked Joe Geldhof to come forward.                                                                             
                                                                                                                                
JOE GELDHOF,  Juneau attorney, said  he was testifying  on behalf                                                               
of himself and  that he does have some  initiative experience. He                                                               
urged members to  develop a CS because there  are some meaningful                                                               
points that  would be  useful to the  lieutenant governor  in the                                                               
initiative process.                                                                                                             
                                                                                                                                
He  found Lieutenant  Governor Leman's  office  to be  completely                                                               
professional  when   he  dealt  with   it  on  the   cruise  ship                                                               
initiative. Nonetheless, providing  both proponents and opponents                                                               
an  opportunity  to  preview  the language  to  be  selected,  as                                                               
proposed  in  SB  39,  could give  the  lieutenant  governor  the                                                               
ability to  receive feedback quickly and  to gain a feel  for how                                                               
the  language  might  be  received. Otherwise  you  end  up  with                                                               
language  that comes  through the  lieutenant governor's  office,                                                               
but  frequently  from the  attorney  general's  office and  "It's                                                               
often cobbled together in a  hasty fashion without full regard to                                                               
what's really going on."                                                                                                        
                                                                                                                                
Finally,  he urged  members to  consider a  CS that  has a  short                                                               
review process so an opponent  and a proponent vet the lieutenant                                                               
governor  and the  attorney general  summary before  the booklets                                                               
are  printed and  released to  the public.  That might  avoid the                                                               
temptation  to  litigate after  the  booklets  are collected  and                                                               
provide opportunity for a better end product.                                                                                   
                                                                                                                                
4:22:38 PM                                                                                                                    
                                                                                                                                
SENATOR HUGGINS asserted  that unfortunately, "ballot initiatives                                                               
all  too  often  are  hyperizing and  polarizing  by  their  very                                                               
nature."                                                                                                                        
                                                                                                                                
MR.  GELDHOFF replied  he really  isn't a  fan of  the initiative                                                               
process and  he views  initiatives as  the result  of legislative                                                               
gridlock.                                                                                                                       
                                                                                                                                
SENATOR   HUGGINS  suggested   this  could   result  in   greater                                                               
protraction.                                                                                                                    
                                                                                                                                
MR.  GELDHOF replied  it could  happen  that way  but, "give  the                                                               
lieutenant governor  at least a  limited chance to have  a little                                                               
input  from the  people out  there hammering  on it....  give the                                                               
lieutenant governor  a shot  of what's right  and wrong  with the                                                               
language."                                                                                                                      
                                                                                                                                
4:25:40 PM                                                                                                                    
                                                                                                                                
CHAIR  THERRIAULT agreed  that  in the  past  people have  gotten                                                               
thousands   of  signatures   on  language   to  laws   that  were                                                               
structurally  flawed.  Sometimes  the  petitioners  knew  it  was                                                               
flawed and  suggested they would fix  it after the fact.  He said                                                               
it seems as though the argument  is centered more on the language                                                               
that describes  the law  than the language  that is  proposed for                                                               
the  statute  books.  When  you  look  at  the  proposed  summary                                                               
statement that isn't the law itself, he said.                                                                                   
                                                                                                                                
MR.  GELDHOFF agreed  then said  that  the public  really has  an                                                               
amazing capacity to know what's  going on. The Legislature has an                                                               
obligation  to make  it as  clear as  possible and  then let  the                                                               
public do what they're going to  do. "Let people like Mr. Feldman                                                               
come up with a better work product."                                                                                            
                                                                                                                                
CHAIR  THERRIAULT said  he was  thinking about  the property  tax                                                               
issue from three  or four years ago. The proposed  law was flawed                                                               
and didn't work.  You could argue about the  summary statement on                                                               
the  booklet  and  you  could  argue about  the  summary  on  the                                                               
ballots,  but the  process doesn't  provide  for a  check on  the                                                               
proposed law itself to make sure it works.                                                                                      
                                                                                                                                
MR. GELDHOFF  replied initiatives  are just the  direct enactment                                                               
of legislation so  the same standards should be used  that you as                                                               
the presiding officer of a committee would consider.                                                                            
                                                                                                                                
CHAIR  THERRIAULT  said they  don't  always  get  it right  as  a                                                               
committee,  but they  have the  committee process,  Department of                                                               
Law  attorneys,  legislative  attorneys,  Majority  members,  and                                                               
Minority  members. Each  provides a  set  of eyes  coming from  a                                                               
different perspective and looking  for mistakes. By contrast what                                                               
is  approved for  initiatives has  frequently been  reviewed from                                                               
just one perspective and the summary may not be accurate.                                                                       
                                                                                                                                
4:29:55 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON said perhaps the  committee should consider a CS to                                                               
include the  summary language for  petitions. With regard  to the                                                               
property tax initiative,  he said it wasn't an issue  of what was                                                               
said on  the summary or what  would have appeared on  the ballot,                                                               
but it could have become an  issue because there was a structural                                                               
flaw  to the  law they  were  proposing. A  committee could  have                                                               
addressed the issue  by saying, "This doesn't do what  it says it                                                               
does."                                                                                                                          
                                                                                                                                
CHAIR THERRIAULT asked Annette Kreitzer to come forward.                                                                        
                                                                                                                                
ANNITTE KREITZER,  chief of staff  for Lieutenant  Governor Loren                                                               
Leman,  said she  would speak  in generalities  since she  hadn't                                                               
seen the sponsor statement or the proposed CS.                                                                                  
                                                                                                                                
She said  she distributed pages from  Lieutenant Governor Leman's                                                               
web site  titled "Understanding Initiatives" because  it includes                                                               
timelines of action on initiatives. Furthermore:                                                                                
                                                                                                                                
     Lieutenant  Governor  Leman   believes  the  initiative                                                                    
     process  is an  important  part  of Alaska's  political                                                                    
     system.  It allows  Alaskans direct  access to  writing                                                                    
     and approving  certain laws  without going  through the                                                                    
     legislative process.                                                                                                       
                                                                                                                                
     SB 39 isn't necessary.  Any lieutenant governor walks a                                                                    
     fine line  between proponents of an  initiative and the                                                                    
     opponents.  As   far  as  my  experience   goes,  we've                                                                    
     received  comments  on  both   sides  of  almost  every                                                                    
     initiative.  The lieutenant  governor takes  input from                                                                    
     many including the Department of  Law. We don't operate                                                                    
     in a vacuum.                                                                                                               
                                                                                                                                
     Under SB  39, the lieutenant governor  still can change                                                                    
     the committee's recommendation and  I'm sure, as others                                                                    
     have said  before me, that  that's in the  bill because                                                                    
     to   do  otherwise   would  likely   render  the   bill                                                                    
     unconstitutional.                                                                                                          
                                                                                                                                
MS.  KREITZER  took  issue  with  Mr.  Feldman's  statement  that                                                               
opponents and proponents  do not have an  opportunity to comment.                                                               
The  initiative he  was referencing  came at  the same  time that                                                               
legislation  was being  passed so  Lieutenant Governor  Leman was                                                               
very involved. When  he was asked about that  legislation he said                                                               
it was  substantially similar to  the proposed  initiative. Three                                                               
days  prior to  printing the  special advance  ballots the  court                                                               
ruled that the initiative would have to go on the ballot.                                                                       
                                                                                                                                
In terms of  timing she made the point that  if you're vulnerable                                                               
to  a lawsuit  at any  point  you wouldn't  be able  to meet  the                                                               
timelines set forth in  the bill. "The bias is in  the eye of the                                                               
beholder. Proponents  don't think  we're doing enough  to advance                                                               
their initiative and opponents don't  think we're doing enough to                                                               
outline perceived flaws in an initiative."                                                                                      
                                                                                                                                
Current  law allows  judicial review  and  judicial review  would                                                               
also  be   available  under  SB  39.   The  proposed  five-member                                                               
committee wouldn't  have fewer biases than  an elected lieutenant                                                               
governor and an appointed attorney general, she concluded.                                                                      
                                                                                                                                
4:34:52 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT  referenced the  fiscal notes and  asked Senator                                                               
Elton who would  pay the committee expenses as far  as travel and                                                               
per diem.                                                                                                                       
                                                                                                                                
SENATOR ELTON  replied he anticipates  some travel  costs because                                                               
it's likely  that the committee  would have to  meet face-to-face                                                               
at least initially. He suggested  that little investment up front                                                               
would save a lot of money later on.                                                                                             
                                                                                                                                
CHAIR  THERRIAULT noted  the fiscal  notes from  the Division  of                                                               
Elections and  the Department  of Law and  asked if  he envisions                                                               
that  the   expenses  would  be   covered  from   the  lieutenant                                                               
governor's budget.                                                                                                              
                                                                                                                                
SENATOR  ELTON  replied  it  could happen  that  way.  During  an                                                               
election cycle a  lot of the lieutenant governor's  staff time is                                                               
used on  issues such  as ballot  language, temporary  hiring, and                                                               
voter pamphlet contracting. He anticipates  that it would be part                                                               
of the biannual cycle for budgeting for elections.                                                                              
                                                                                                                                
CHAIR THERRIAULT questioned  whether they would have  to plan for                                                               
additional costs.                                                                                                               
                                                                                                                                
SENATOR  ELTON  replied  expenses   would  probably  be  slightly                                                               
higher. Expenses  would depend on  the number of  initiatives and                                                               
perhaps the volatility of some  of the initiatives. In conclusion                                                               
he  emphasized  that  it  will  be  easy  to  identify  costs  to                                                               
accomplish SB 39 but impossible to identify the accrued savings.                                                                
                                                                                                                                
There was no further testimony or questions.                                                                                    
                                                                                                                                
CHAIR THERRIAULT announced he would hold SB 39 in committee.                                                                    
                                                                                                                                
4:38:14 PM                                                                                                                    
                                                                                                                                
             SB  95-COLLECTION OF DNA/USE OF FORCE                                                                          
                                                                                                                                
SENATOR  GENE   THERRIAULT  announced   SB  95   to  be   up  for                                                               
consideration. He asked Senator Bunde to introduce the bill.                                                                    
                                                                                                                                
4:38:24 PM                                                                                                                    
                                                                                                                                
SENATOR CON BUNDE, prime sponsor,  explained that he had the bill                                                               
drafted as  a result of  a conversation with the  commissioner of                                                               
the Department of  Public Safety. He learned that  people who are                                                               
required to  submit to  DNA testing may  refuse to  cooperate and                                                               
the authorities may not force  compliance. Convicted people often                                                               
have quite a  resume of another crimes, he said,  so matching DNA                                                               
can  help solve  other unsolved  crimes. It's  logical, he  said,                                                               
that the state should be able  to use reasonable force to collect                                                               
a  DNA  sample  if  the   convicted  individual  decides  not  to                                                               
cooperate.  The  procedure isn't  invasive  it's  simply using  a                                                               
cotton swab on the cheek.                                                                                                       
                                                                                                                                
SB 95 is  an attempt to clear the backlog  of unsolved crimes and                                                               
perhaps  discourage   some  people  from   committing  additional                                                               
crimes.                                                                                                                         
                                                                                                                                
CHAIR  THERRIAULT asked  Senator  Bunde to  discuss  some of  the                                                               
backup material provided in the packets.                                                                                        
                                                                                                                                
SENATOR  BUNDE referenced  the letter  from the  Anchorage Police                                                               
Department  supporting SB  95  then said  the  other material  is                                                               
general background and information  on the effectiveness of using                                                               
DNA.                                                                                                                            
                                                                                                                                
CHAIR  THERRIAULT  remarked   the  language  "forced  collection"                                                               
sounds harsher  than a cotton swab  on the cheek. He  asked which                                                               
other states have implemented DNA collection laws.                                                                              
                                                                                                                                
LAUREN WICKERSHAM, staff  to Senator Bunde, said  she didn't know                                                               
which  states  use  reasonable  force  to  collect  DNA  but  the                                                               
database technology is new and growing quickly.                                                                                 
                                                                                                                                
CHAIR  THERRIAULT  said  his  staff   found  that  the  State  of                                                               
Washington uses  similar legislation  and he was  curious whether                                                               
the   sponsor  worked   with  the   drafters  to   develop  model                                                               
legislation.                                                                                                                    
                                                                                                                                
4:43:54 PM                                                                                                                    
                                                                                                                                
SENATOR BUNDE  emphasized this  is a  relatively new  concern and                                                               
some  in   law  enforcement  were  surprised   that  a  convicted                                                               
individual  could refuse  to  cooperate. The  crime  lab and  the                                                               
Department of Public Safety did provide input, he said.                                                                         
                                                                                                                                
CHAIR THERRIAULT  asked whether this  would apply only  to people                                                               
who were incarcerated and not be retroactive.                                                                                   
                                                                                                                                
SENATOR BUNDE replied he didn't intend it to be retroactive.                                                                    
                                                                                                                                
MS. WICKERSHAM added the bill  doesn't address whom; it addresses                                                               
how to collect for those who refuse.                                                                                            
                                                                                                                                
SENATOR CHARLIE  HUGGINS suggested  the sponsor narrow  the scope                                                               
of who may collect a DNA sample.                                                                                                
                                                                                                                                
SENATOR BUNDE replied  the bill was purposefully  drafted to cast                                                               
a broad net.                                                                                                                    
                                                                                                                                
SENATOR  KIN  ELTON  questioned whether  the  state  might  incur                                                               
liability or obligation once they  have collected the DNA sample.                                                               
Once the  DNA is  collected does  it go into  a databank  that is                                                               
secure and inviolate, he asked.                                                                                                 
                                                                                                                                
SENATOR  BUNDE replied  his  understanding is  that  DNA is  only                                                               
collected for  identification purposes and testing  for extensive                                                               
genetic   markers  wouldn't   occur.  He   assured  members   the                                                               
information is kept secure.                                                                                                     
                                                                                                                                
SENATOR  ELTON  asked  what happens  to  samples  collected  from                                                               
juvenile offenders.                                                                                                             
                                                                                                                                
SENATOR BUNDE replied  his staff confirmed that  privacy would be                                                               
maintained.                                                                                                                     
                                                                                                                                
4:49:48 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON said he assumed  that most felonies were prosecuted                                                               
by  the  state and  he  wondered  which municipalities  prosecute                                                               
felonies.                                                                                                                       
                                                                                                                                
SENATOR BUNDE  replied none come  to mind,  but it is  in keeping                                                               
with the casts a wide net theory.                                                                                               
                                                                                                                                
CHAIR THERRIAULT asked Mr. Giffer to give his testimony.                                                                        
                                                                                                                                
MR.  GIFFER,   Alaska  State  Trooper  investigator,   spoke  via                                                               
teleconference  to  say that  this  bill  would be  important  in                                                               
working old  cases. Taking  a swab is  very non-intrusive  and no                                                               
one should get hurt in the process.                                                                                             
                                                                                                                                
CHAIR THERRIAULT asked Dean Guaneli to give testimony.                                                                          
                                                                                                                                
4:54:33 PM                                                                                                                    
                                                                                                                                
DEAN  GUANELI, chief  assistant attorney  general, Department  of                                                               
Law, expressed  support for  the bill for  the reasons  stated by                                                               
Senator Bunde  and Investigator Gifford.  DNA testing  has proven                                                               
to be  most effective in  solving crimes, convicting  the guilty,                                                               
and clearing the innocent. SB 95  makes it clear that samples may                                                               
be  collected  from  municipal offenders  who  are  convicted  of                                                               
assault. The  clarification is good  because research  shows that                                                               
collecting  DNA  samples  from  misdemeanor  offenders  solves  a                                                               
number of serious offenses.                                                                                                     
                                                                                                                                
He emphasized  that collecting DNA  samples by means  of swabbing                                                               
the inside  of the  cheek isn't an  intrusive procedure  and that                                                               
whether  force is  used or  not is  entirely within  the person's                                                               
control. Most  people choose  to cooperate,  but some  people who                                                               
are under  state supervision  elect to buck  the system  at every                                                               
opportunity.  He  suggested that  most  of  those who  refuse  to                                                               
cooperate would change their mind  if they were informed that the                                                               
law authorizes force.                                                                                                           
                                                                                                                                
Technology is  advancing quickly  and smaller samples  are needed                                                               
to conduct  DNA testing.  In fact,  the oil  in a  fingerprint is                                                               
getting  to be  enough  to  run a  DNA  test,  he said.  However,                                                               
because prisoner litigation is and  will continue to be an issue,                                                               
he  suggested   that  an  appropriate  immunity   clause  against                                                               
prisoner lawsuits is needed.                                                                                                    
                                                                                                                                
SENATOR  KIM  ELTON said  he  assumes  that municipalities  often                                                               
prosecute misdemeanor assault crimes.                                                                                           
                                                                                                                                
MR. GUANELI said that is correct.                                                                                               
                                                                                                                                
SENATOR  ELTON  asked where  the  cutoff  point might  occur  and                                                               
questioned whether a  DNA sample might be  collected if neighbors                                                               
got into a scuffle.                                                                                                             
                                                                                                                                
5:01:00 PM                                                                                                                    
                                                                                                                                
MR.  GUANELI  replied current  law  requires  DNA samples  to  be                                                               
collected  from anyone  convicted of  a crime  against a  person.                                                               
Misdemeanor assault typically occurs  in domestic situations, but                                                               
it could  happen in  the situation  posited and  that would  be a                                                               
crime against a person.                                                                                                         
                                                                                                                                
SENATOR ELTON  asked for confirmation  that the intent is  not to                                                               
go to lower level crimes.                                                                                                       
                                                                                                                                
MR. GUANELI said  that is not the intent; the  intent is for more                                                               
inclusion. Under  current law misdemeanor assaults  prosecuted by                                                               
a municipality aren't covered so one  of the things SB 95 does is                                                               
include those and make the system totally comprehensive.                                                                        
                                                                                                                                
CHAIR THERRIAULT summarized  that the expansion is  the same type                                                               
of crime prosecuted by another jurisdiction.                                                                                    
                                                                                                                                
MR. GUANELI agreed.                                                                                                             
                                                                                                                                
CHAIR  THERRIAULT  asked  what  happens   to  DNA  data  that  is                                                               
collected from minors once they become adults.                                                                                  
                                                                                                                                
MR. GUANELI replied juvenile  fingerprint information is retained                                                               
in  juvenile justice  systems and  he thought  DNA identification                                                               
was retained as  well. They are simply  identification tools; the                                                               
DNA markers checked  in an identification system  are referred to                                                               
as "junk DNA"  in the scientific community and  provide no useful                                                               
information  other than  identification.  Many parts  of the  DNA                                                               
system  disclose nothing  other than  identity and  that's what's                                                               
saved and analyzed, he said.                                                                                                    
                                                                                                                                
SENATOR ELTON  made the  point that there's  nothing in  law that                                                               
precludes  the state  from  analyzing the  DNA  for markers  that                                                               
would relate to medical or other genetic conditions.                                                                            
                                                                                                                                
MR.  GUANELI replied  misuse of  DNA information  became a  crime                                                               
under previous legislation, but he'd  have to review the statutes                                                               
to determine  whether the  state is authorized  to run  tests for                                                               
information other than identification.                                                                                          
                                                                                                                                
CHAIR THERRIAULT asked  whether it was Senator  Olson's bill that                                                               
touched on penalties for improper  use and/or distribution of DNA                                                               
information.                                                                                                                    
                                                                                                                                
SENATOR ELTON  recalled insurance  companies and  other interests                                                               
were at issue.                                                                                                                  
                                                                                                                                
SENATOR BUNDE  pointed out  that SB 95  doesn't expand  the tests                                                               
for DNA it simply addresses collection.                                                                                         
                                                                                                                                
5:05:51 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT read  the following from the State  of Idaho and                                                               
asked whether Alaska has a similar requirement.                                                                                 
                                                                                                                                
     When the  state accepts an offender  from another state                                                                    
     under any  interstate compact, or any  other reciprocal                                                                    
     agreement with any county, state  or federal agency, or                                                                    
     any other provision of law  whether or not the offender                                                                    
     is confined  or released the acceptance  is conditional                                                                    
     on the  offender providing a DNA  sample and thumbprint                                                                    
     impression if the offender was  convicted of an offense                                                                    
     that would qualify as a crime described in Section 19.                                                                     
                                                                                                                                
MR. GUANELI explained that registered  sex offenders are required                                                               
to  give a  DNA sample  whether  they're convicted  in Alaska  or                                                               
elsewhere,  but  non   sex  offenders  who  come   in  under  the                                                               
interstate process aren't  required to do so. There  are two ways                                                               
to address  that, he said. Although  he'd have to check  with the                                                               
interstate supervision  process, his first suggestion  is for the                                                               
Department  of  Corrections  to adopt  an  administrative  policy                                                               
stating   they  won't   accept   a   prisoner  under   interstate                                                               
supervision without taking  a DNA sample. Another  way to address                                                               
the issue would be to enact  a statute to require collection. The                                                               
latter would require drafting changes, but it is a possibility.                                                                 
                                                                                                                                
CHAIR THERRIAULT asked Portia Parker to come forward.                                                                           
                                                                                                                                
5:08:15 PM                                                                                                                    
                                                                                                                                
PORTIA  PARKER, deputy  commissioner, Department  of Corrections,                                                               
thanked  Senator  Bunde  for   introducing  the  legislation  and                                                               
expressed   departmental   support   for  the   bill.   Generally                                                               
corrections  officials  don't   have  difficulty  collecting  DNA                                                               
samples from  offenders, but just  knowing that  reasonable force                                                               
could  be  used   would  be  very  helpful.   The  Department  of                                                               
Corrections also supports the bill as  a way to close other cases                                                               
using  DNA. This  is  a real  need for  law  enforcement and  for                                                               
victims and for public safety, she said.                                                                                        
                                                                                                                                
The  collection  process  and the  policies  and  procedures  the                                                               
Department  of Corrections  and the  Department of  Public Safety                                                               
established cooperatively  when DNA samples were  first collected                                                               
is  working fairly  well,  she  reported, but  "this  would be  a                                                               
definite  to   the  department   in  fulfilling   that  statutory                                                               
obligation."                                                                                                                    
                                                                                                                                
CHAIR  THERRIAULT asked  her to  address  the interstate  compact                                                               
issue.                                                                                                                          
                                                                                                                                
MS. PARKER  said she hadn't contacted  the compact administrator,                                                               
but she  thought the department  would support that if  it didn't                                                               
interfere with  the interstate compact  rules with  other states.                                                               
"Although if other  states are requiring that  of offenders going                                                               
into  their state,  we probably  won't have  a problem  requiring                                                               
that."  It certainly  wouldn't be  a problem  if the  requirement                                                               
were in statute, she said                                                                                                       
                                                                                                                                
5:10:56 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT  questioned why  the state would  swap prisoners                                                               
and asked  her to  elaborate on what  actually happens  under the                                                               
compact.                                                                                                                        
                                                                                                                                
MS. PARKER explained that this  involves a probationer or parolee                                                               
in another state  who wants to move to Alaska  and typically it's                                                               
an  Alaskan  who  wants  to return  home.  Likewise,  Alaska  has                                                               
offenders from  outside the  state who want  to return  home once                                                               
they are  out of prison and  on probation or parole.  A mechanism                                                               
is established  whereby every state participating  in the compact                                                               
must  abide  by compact  rules.  Although  there are  exceptions,                                                               
"They pretty much have  to take ours who want to  go there and we                                                               
have  to take  theirs who  want  to come  here so  there is  that                                                               
movement."  Generally  it's a  good  process,  she said,  because                                                               
they're going  where they  have family  support, or  a job,  or a                                                               
school opportunity.                                                                                                             
                                                                                                                                
CHAIR THERRIAULT asked  Senator Bunde whether he  would object to                                                               
including language to make it  clear that if a convicted offender                                                               
were  to come  to Alaska  from another  jurisdiction, they  would                                                               
have to abide by the same rules as people convicted in Alaska.                                                                  
                                                                                                                                
SENATOR BUNDE said he wouldn't object; it seems logical.                                                                        
                                                                                                                                
SENATOR THOMAS  WAGONER questioned  how many  people move  in and                                                               
out of the state under the compact.                                                                                             
                                                                                                                                
5:12:42 PM                                                                                                                    
                                                                                                                                
MS. PARKER replied  she could get the information,  but last year                                                               
roughly  the same  number left  the  state under  the compact  as                                                               
returned home.                                                                                                                  
                                                                                                                                
SENATOR  WAGONER asked  if  his assumption  is  correct that  the                                                               
receiving parole officer is responsible for oversight.                                                                          
                                                                                                                                
MS. PARKER replied that's the  case since the compact adopted new                                                               
rules in  August 2004.  Probation or  parole violations  here are                                                               
subject to  Alaska conditions and consequences.  The same applies                                                               
to  offenders  sent out  of  state;  they  must comply  with  the                                                               
conditions in the jurisdiction in which they reside.                                                                            
                                                                                                                                
CHAIR THERRIAULT referenced page 1,  lines 6 and 7 and questioned                                                               
whether we  currently collect blood  samples or just rely  on the                                                               
oral swab.                                                                                                                      
                                                                                                                                
MS.PARKER replied the oral swab is used.                                                                                        
                                                                                                                                
CHAIR  THERRIAULT  referenced  the suggested  language  "may  use                                                               
reasonable force to collect" and  questioned whether it should be                                                               
expanded to say,  "use such means as are  reasonably necessary to                                                               
collect".                                                                                                                       
                                                                                                                                
MS. PARKER responded the department had no opinion on that.                                                                     
                                                                                                                                
SCOTT CAULDER testified via  teleconference and expressed concern                                                               
with the applicability of the  bill because it appears to address                                                               
an overly broad  range of things. Another issue  is that although                                                               
the  bill  targets notorious  criminals,  anybody  else might  be                                                               
eligible. He questioned what might  be considered reasonable when                                                               
"reasonable  force"  may  be used.  This  would  be  particularly                                                               
important when you're talking about juveniles, he said.                                                                         
                                                                                                                                
What this  boils down to is  "The individual has the  choice, but                                                               
their  choice is  no choice  and  this is  our way  to get  those                                                               
people who  are bucking  the system." He  asked the  committee to                                                               
consider whether that foundation is a  good reason for a law even                                                               
though it might be a good tool in the toolbox.                                                                                  
                                                                                                                                
5:20:30 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked Mr. Guaneli  what standard the court would                                                               
allow  in  determining what  is  reasonable  and if  unreasonable                                                               
force were used, whether the sample would be invalid.                                                                           
                                                                                                                                
MR.  GUANELI said  his view  is that  if unreasonable  force were                                                               
used  both  the  state  and  the  officer  would  be  subject  to                                                               
liability, but  the sample wouldn't  be jeopardized. In  terms of                                                               
what is reasonable, it's the  same as with any negligence action.                                                               
The standard  would be what  a reasonable officer would  do under                                                               
the  circumstances and  an expert  would validate  the action  if                                                               
litigation  were involved.  "It's difficult  to envision  all the                                                               
circumstances that  would face an  officer who is dealing  with a                                                               
recalcitrant inmate so the word  reasonable was chosen. The whole                                                               
concept  of reasonableness  is  reflected  throughout the  Alaska                                                               
statutes - throughout our constitution."                                                                                        
                                                                                                                                
SENATOR ELTON  pointed out that  inserting the language  "in this                                                               
state"  in two  places is  a limiting  element and  that language                                                               
seems to  apply to  felonies under  AS 11 or  AS 28.35.  Then the                                                               
language, "or  a law or an  ordinance" is used. Because  the word                                                               
"or" is used, he wondered whether  "in this state" applies to the                                                               
state statutes but not to an ordinance or law elsewhere.                                                                        
                                                                                                                                
MR.  GUANELI  said  the  qualifier "in  this  state"  would  mean                                                               
Alaska, Alaska  statutes, or Alaska municipal  statutes. If there                                                               
were  going  to  be  a  provision  that  talks  about  interstate                                                               
probation  supervision, you'd  have  to  add a  number  6 to  the                                                               
classes of people from whom samples  would be taken, he said. The                                                               
bill  was  drafted  that  way   so  it  would  include  municipal                                                               
offences. Standard  language used  throughout the statutes  is "a                                                               
law or ordinance  with elements similar to a  crime". That raises                                                               
the question of whether people  coming to Alaska who have already                                                               
served  their time  would  have  to submit  a  sample. Using  the                                                               
language, "in  this state"  would exclude  those people  from the                                                               
reach of this statute, he said.                                                                                                 
                                                                                                                                
SENATOR ELTON  asked if  his reading is  that using  "or" doesn't                                                               
interrupt the predicate "in this state".                                                                                        
                                                                                                                                
MR. GUANELI said it doesn't interrupt.                                                                                          
                                                                                                                                
CHAIR THERRIAULT announced  they would work with  the sponsor and                                                               
look  at the  interstate compact  issue before  hearing the  bill                                                               
again.                                                                                                                          
                                                                                                                                
5:25:32 PM                                                                                                                    
                                                                                                                                
SENATOR  BUNDE summarized  that people  who are  investigated for                                                               
minor crimes frequently have a  substantial criminal record so he                                                               
would  argue  for  including the  broader  definition  of  crimes                                                               
against  people and  that collecting  a  DNA sample  is the  21st                                                               
century fingerprint.                                                                                                            
                                                                                                                                
SB 95 was held in committee.                                                                                                    
                                                                                                                                
5:26:29 PM                                                                                                                    
                                                                                                                                
                                                                                                                                
              SB 104-PERMANENT FUND DIVIDEND FRAUD                                                                          
                                                                                                                              
CHAIR   GENE  THERRIAULT   announced  SB   104  to   be  up   for                                                               
consideration and asked Mr. Hove to come forward.                                                                               
                                                                                                                                
5:27:03 PM                                                                                                                    
                                                                                                                                
BRIAN  HOVE,  staff to  Senator  Ralph  Seekins, paraphrased  the                                                               
sponsor statement.                                                                                                              
                                                                                                                                
     SB 104 seeks to  strengthen the Department of Revenue's                                                                    
     ability to  investigate fraud associated with  making a                                                                    
     false  application  for   a  permanent  fund  dividend.                                                                    
     Furthermore, submission of  a fraudulent permanent fund                                                                    
     dividend application would become a class C felony.                                                                        
                                                                                                                                
     In 2004  the Department of Revenue  (DOR) examined over                                                                    
     1,600 fraud tips and audited  over 1,700 permanent fund                                                                    
     dividend   (PFD)   applications  suspected   of   being                                                                    
     fraudulent. This resulted in  $1.4 million in denied or                                                                    
     assessed    dividends     (1,500    +    applications).                                                                    
     Furthermore, there  were three federal  indictments and                                                                    
     one conviction for crimes involving PFD fraud.                                                                             
                                                                                                                                
     The most common PFD  fraud offense involves persons who                                                                    
     forge the  signature of another on  the application (or                                                                    
     related  documents)  with  the intent  of  receiving  a                                                                    
     dividend  to   which  they   are  not   entitled.  It's                                                                    
     important  to note  that the  bill is  not intended  to                                                                    
     capture,  for example,  cases where  husbands or  wives                                                                    
     sign for  each other.  However, the provisions  of this                                                                    
     legislation would  apply in cases where  the individual                                                                    
     is attempting to steal from  another person or from the                                                                    
     state.                                                                                                                     
                                                                                                                                
     Current  law (AS  11.46.510)  describes three  separate                                                                    
     degrees of forgery - the  two most serious offenses are                                                                    
     punishable as class  B and C felonies,  but are limited                                                                    
     to   cases  involving   various   types  of   financial                                                                    
     instruments  such  as  currency, securities,  deeds  of                                                                    
     trust, etc.                                                                                                                
                                                                                                                                
     Forgery in  the third  degree covers instances  where a                                                                    
     person  intentionally  makes  a false  statement  on  a                                                                    
     written  instrument   (such  as  a   PFD  application).                                                                    
     However,  this  offense  is punishable  as  a  class  A                                                                    
     misdemeanor  only.  The  DOR proposal  to  elevate  PFD                                                                    
     fraud from a simple misdemeanor  to a class C felony is                                                                    
     expected  to provide  a  more  effective deterrent  for                                                                    
     this type of theft.                                                                                                        
                                                                                                                                
     Furthermore,  SB 104  aids  in  identifying and  curing                                                                    
     instances   of  permanent   fund   dividend  fraud   by                                                                    
     codifying in statute a  fraud investigation unit within                                                                    
     the Department  of Revenue. This  unit will  assist the                                                                    
     Department  of  Law   in  detecting  and  investigating                                                                    
     instances of PFD fraud.                                                                                                    
                                                                                                                                
5:29:28 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT referenced  the language on page 1,  line 7 that                                                               
says,  "circumstances  not  proscribed under  AS  11.56.225"  and                                                               
noted that  it's the new section  proposed in Section 2.  He then                                                               
asked  whether  his interpretation  was  correct  that Section  1                                                               
exempts misrepresenting the permanent  fund eligibility, but it's                                                               
put back  in through  a new  section of  statute written  to deal                                                               
with it specifically.                                                                                                           
                                                                                                                                
MR. HOVE suggested Sharon Barton answer the question.                                                                           
                                                                                                                                
5:30:26 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT read  language on page 2, lines 6  through 8 and                                                               
noted  that  it  points  back  to Section  1.  He  asked  for  an                                                               
explanation because it seems circular.                                                                                          
                                                                                                                                
SHARON BARTON,  director, Permanent Fund Dividend  Division, said                                                               
the  explanation should  come from  the  legislative drafter.  In                                                               
reading  it  she came  to  the  same  conclusion decided  it  was                                                               
written that way  to make it clear that  violations pertaining to                                                               
PFDs would be  dealt with under AS 11.56.225 and  others would be                                                               
dealt with under AS 11.56.210.                                                                                                  
                                                                                                                                
CHAIR THERRIAULT asked if that includes all other falsification.                                                                
                                                                                                                                
MS. BARTON said un-sworn falsification.                                                                                         
                                                                                                                                
CHAIR  THERRIAULT asked  if  this is  specific  and separate  for                                                               
PFDs.                                                                                                                           
                                                                                                                                
MS. BARTONS said that's correct.                                                                                                
                                                                                                                                
CHAIR THERRIAULT said  he didn't understand why  language on page                                                               
2, line 7 refers back to  AS 11.56.210 so his staff would consult                                                               
the drafters before final action was taken.                                                                                     
                                                                                                                                
MS. BARTON  referenced language on  page 2 and remarked  it could                                                               
be  stated   more  elegantly  by  simply   saying,  "violates  AS                                                               
11.56.210 and the statement is  in an application for a permanent                                                               
fund dividend".                                                                                                                 
                                                                                                                                
CHAIR THERRIAULT suggested the drafters  might not have wanted to                                                               
repeat the factors that go into  a AS 11.56.210 violation so they                                                               
refer to the criteria, but say  that prosecution would be under a                                                               
new section of law.                                                                                                             
                                                                                                                                
MS. BARTON said she also thought that was the intent.                                                                           
                                                                                                                                
MR. HOVE  said they wanted  to introduce  the bill that  day then                                                               
return with a committee substitute (CS) at a subsequent hearing.                                                                
                                                                                                                                
MS. BARTON pointed to Section 2,  paragraph (3), and said line 10                                                               
would read more  clearly if it said, "a public  employee with the                                                               
intent  to   mislead  that  public  employee   about  a  person's                                                               
eligibility" but it wouldn't change the intent of the statement.                                                                
                                                                                                                                
MR.  HOVE restated  his desire  to return  with a  CS or  several                                                               
amendments.                                                                                                                     
                                                                                                                                
5:34:39 PM                                                                                                                    
                                                                                                                                
SENATOR  ELTON commented  if this  bill passes  and PFD  fraud is                                                               
moved into AS  11, and SB 95 passes as  well, people convicted of                                                               
PFD fraud  would be required to  submit to a DNA  swab. He wasn't                                                               
commenting on  whether that would  be bad, but that's  what would                                                               
happen.                                                                                                                         
                                                                                                                                
CHAIR  THERRIAULT replied  "You had  the limiting  crimes against                                                               
the person in [SB 95]."                                                                                                         
                                                                                                                                
SENATOR ELTON  read, "any  crime covered  in AS  11 or  against a                                                               
person or a felony  under AS 11" so this would  be a felony under                                                               
AS 11.                                                                                                                          
                                                                                                                                
CHAIR THERRIAULT said he would look into that.                                                                                  
                                                                                                                                
5:35:35 PM                                                                                                                    
                                                                                                                                
CHAIR  THERRIAULT  asked  Mr.  Poag  whether  the  committee  had                                                               
discussed anything that he might want to clarify.                                                                               
                                                                                                                                
5:35:51 PM                                                                                                                    
                                                                                                                                
CRIS POAG,  civil division  Department of  Law, said  although he                                                               
isn't in  the criminal division  he helped Director  Barton draft                                                               
similar legislation. Definitely, he  said, paragraph (2) could be                                                               
cleared up  using the language  Director Barton suggested  and he                                                               
agreed  with  her recommendation  for  changing  the language  in                                                               
paragraph (3) as well.                                                                                                          
                                                                                                                                
He  suggested they  consult Mr.  Guaneli as  to whether  the bill                                                               
would trigger a requirement for  DNA testing. He didn't know what                                                               
triggers  the testing  requirement,  but if  the  trigger were  a                                                               
felony conviction then this bill  would trigger that requirement.                                                               
Furthermore, "If felonies  are the trigger, the  behavior that is                                                               
exhibited  in these  types of  offenses is  very consistent  with                                                               
other  felony  level  behavior." Misrepresenting  permanent  fund                                                               
eligibility  is very  similar to  other felony  offenses such  as                                                               
forgery, perjury, and theft in  the second degree. Therefore, you                                                               
don't have to  be concerned that this is treated  as a felony and                                                               
that a DNA sample would be required.                                                                                            
                                                                                                                                
PFD fraud  doesn't need to  be treated as  a felony, it  could be                                                               
treated as a misdemeanor, but  the Department of Revenue (DOR) is                                                               
very vulnerable to permanent fund  fraud because this crime isn't                                                               
reported.  It's left  entirely to  the  DOR to  determine who  is                                                               
fraudulently applying for and obtaining  PFDs, which makes them a                                                               
bit more vulnerable than the typical victim.                                                                                    
                                                                                                                                
The Department of  Revenue isn't the true victim  in these cases,                                                               
he  stressed, it's  all Alaskans;  every  PFD is  reduced by  the                                                               
number of  fraudulent applications  that are accepted  each year.                                                               
It's expensive  and time consuming  for the permanent  fund fraud                                                               
unit to  ferret out these  types of events, investigate  them and                                                               
pursue a prosecution.  That's why we think  it's appropriate, but                                                               
not  necessary  to  raise  this  to  a  felony  level  crime,  he                                                               
concluded.                                                                                                                      
                                                                                                                                
5:38:32 PM                                                                                                                    
                                                                                                                                
CHAIR  THERRIAULT  remarked  he  didn't  necessarily  agree  that                                                               
nobody reports PFD crimes because  1,600 fraud tips were reported                                                               
through the fraud tip line.                                                                                                     
                                                                                                                                
MR.  POAG  agreed the  fraud  tip  line  has  proven to  be  very                                                               
effective  and the  tips have  generally been  accurate. However,                                                               
absent  motive or  incentive finding  fraud is  a difficult  task                                                               
when  635,000 applications  come  in every  year. Raising  public                                                               
awareness and  pursuing the crime as  a felony may have  a strong                                                               
deterrent effect, he suggested.                                                                                                 
                                                                                                                                
CHAIR  THERRIAULT asked  whether  most of  the  people using  the                                                               
fraud  line were  acting as  good Samaritans  or were  most on  a                                                               
vendetta against their neighbor.                                                                                                
                                                                                                                                
MR. POAG said  it's his understanding the axe  to grind component                                                               
is often the catalyst but there are good Samaritans as well.                                                                    
                                                                                                                                
SENATOR BETTYE DAVIS  asked whether the fraud unit  has access to                                                               
federal records.                                                                                                                
                                                                                                                                
MR. POAG replied  they don't and he assumed she  was referring to                                                               
the National Crime  Information Center (NCIC). That,  he said, is                                                               
one  of   the  collateral  consequences  and   reasons  for  this                                                               
legislation.                                                                                                                    
                                                                                                                                
5:41:04 PM                                                                                                                    
                                                                                                                                
SENATOR DAVIS asked where that is referenced in the bill.                                                                       
                                                                                                                                
MR. POAG acknowledged  there is no reference.  The Permanent Fund                                                               
Division would have  to make an application to  the Department of                                                               
Public Safety and the application  would be forwarded to the NCIC                                                               
for review to determine whether  criminal justice agency work was                                                               
being conducted  for criminal purposes.  It's a  federal decision                                                               
rather than a state decision, he said.                                                                                          
                                                                                                                                
CHAIR  THERRIAULT  commented  he  remembers  overhearing  someone                                                               
announce that  "My husband  and I are  waiting for  our dividends                                                               
and  then we're  out  of  here [for  good]."  Wasn't that  person                                                               
committing fraud, he asked.                                                                                                     
                                                                                                                                
MR.  POAG  said  it  depends  on  whether  they  qualify  for  an                                                               
allowable absence, but it sounds  as though they didn't intend to                                                               
return  and  if  that  had  been  reported,  someone  would  have                                                               
followed up on the tip.                                                                                                         
                                                                                                                                
SENATOR  ELTON   said  he  would   like  to  receive   follow  up                                                               
information to show  a correlation because he  has always assumed                                                               
that a person who is disingenuous  on a FPD application isn't the                                                               
type to commit a violent crime where DNA evidence might be left.                                                                
                                                                                                                                
MR.  POAG  said he  would  find  out  what  triggers a  DNA  test                                                               
requirement.                                                                                                                    
                                                                                                                                
SENATOR ELTON said what he's  really interested in is finding out                                                               
whether there  is a correlation  between this kind of  felony and                                                               
felonies that are  crimes against a person  where law enforcement                                                               
may collect DNA evidence.                                                                                                       
                                                                                                                                
MR. POAG  clarified he was  referring to the  distinction between                                                               
crimes against persons and crimes against property.                                                                             
                                                                                                                                
SENATOR ELTON repeated he was interested in the data.                                                                           
                                                                                                                                
CHAIR THERRIAULT  asked Mr.  Poag to  provide the  information to                                                               
the committee and announced he would hold SB 104 in committee.                                                                  
                                                                                                                                
5:43:29 PM                                                                                                                    
                                                                                                                                
CHAIR  THERRIAULT  referenced  EO  104  and  announced  he  would                                                               
introduce legislation  under the  Senate State  Affairs Committee                                                               
to  deal  with  the  separation   of  the  Legislature  from  the                                                               
Administration as it relates to the TIC.                                                                                        
                                                                                                                                
There being no further business to come before the committee,                                                                   
Chair Therriault adjourned the meeting at 5:43:54 PM.                                                                         
                                                                                                                                

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