02/22/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB39 | |
| SB95 | |
| SB104 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 39 | TELECONFERENCED | |
| *+ | SB 95 | TELECONFERENCED | |
| *+ | SB 104 | TELECONFERENCED | |
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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