03/31/2022 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) | |
| HB187 | |
| SB188 | |
| HB123 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 187 | TELECONFERENCED | |
| *+ | SB 188 | TELECONFERENCED | |
| += | HB 123 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
March 31, 2022
3:33 p.m.
MEMBERS PRESENT
Senator Mike Shower, Chair
Senator Lora Reinbold, Vice Chair
Senator Mia Costello
Senator Roger Holland
MEMBERS ABSENT
Senator Scott Kawasaki
COMMITTEE CALENDAR
CONFIRMATION HEARING(S)
Military Appeals Commission
Tyler Harder - Eagle River
- CONFIRMATION ADVANCED
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 187(STA)
"An Act relating to the elimination or modification of state
agency publications that are outdated, duplicative, or excessive
or that could be improved or consolidated with other
publications or exclusively delivered electronically; and
providing for an effective date."
- MOVED CSHB 187(STA) OUT OF COMMITTEE
SENATE BILL NO. 188
"An Act relating to criminal law and procedure; relating to a
petition for a change of name for certain persons; relating to
procedures for bail; relating to consecutive sentencing for
violation of condition of release; relating to the duty to
register as a sex offender; amending Rules 6(r) and 47, Alaska
Rules of Criminal Procedure; amending Rule 12, Alaska
Delinquency Rules; amending Rule 84, Alaska Rules of Civil
Procedure; and providing for an effective date."
- HEARD & HELD
HOUSE BILL NO. 123
"An Act providing for state recognition of federally recognized
tribes; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 187
SHORT TITLE: STATE AGENCY PUBLICATIONS
SPONSOR(s): REPRESENTATIVE(s) KAUFMAN
04/22/21 (H) READ THE FIRST TIME - REFERRALS
04/22/21 (H) STA, FIN
04/29/21 (H) STA AT 3:00 PM GRUENBERG 120
04/29/21 (H) <Bill Hearing Canceled>
05/06/21 (H) STA AT 3:00 PM GRUENBERG 120
05/06/21 (H) Heard & Held
05/06/21 (H) MINUTE(STA)
05/11/21 (H) STA AT 3:00 PM GRUENBERG 120
05/11/21 (H) -- MEETING CANCELED --
05/13/21 (H) STA AT 3:00 PM GRUENBERG 120
05/13/21 (H) Heard & Held
05/13/21 (H) MINUTE(STA)
05/15/21 (H) STA AT 10:00 AM GRUENBERG 120
05/15/21 (H) Moved CSHB 187(STA) Out of Committee
05/15/21 (H) MINUTE(STA)
05/18/21 (H) STA RPT CS(STA) 5DP 1NR
05/18/21 (H) DP: STORY, VANCE, KAUFMAN, TARR,
KREISS-TOMKINS
05/18/21 (H) NR: CLAMAN
02/02/22 (H) FIN AT 1:30 PM ADAMS 519
02/02/22 (H) Heard & Held
02/02/22 (H) MINUTE(FIN)
02/10/22 (H) FIN AT 1:30 PM ADAMS 519
02/10/22 (H) Moved CSHB 187(STA) Out of Committee
02/10/22 (H) MINUTE(FIN)
02/11/22 (H) FIN RPT CS(STA) 6DP 5NR
02/11/22 (H) DP: LEBON, CARPENTER, THOMPSON,
JOHNSON, RASMUSSEN, FOSTER
02/11/22 (H) NR: ORTIZ, EDGMON, WOOL, JOSEPHSON,
MERRICK
02/17/22 (H) TRANSMITTED TO (S)
02/17/22 (H) VERSION: CSHB 187(STA)
02/22/22 (S) READ THE FIRST TIME - REFERRALS
02/22/22 (S) STA
03/10/22 (S) STA AT 3:30 PM BUTROVICH 205
03/10/22 (S) -- MEETING CANCELED --
03/17/22 (S) STA AT 3:30 PM BUTROVICH 205
03/17/22 (S) Heard & Held
03/17/22 (S) MINUTE(STA)
03/31/22 (S) STA AT 3:30 PM BUTROVICH 205
BILL: SB 188
SHORT TITLE: CRIM PROCEDURE; CHANGE OF NAME
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/15/22 (S) READ THE FIRST TIME - REFERRALS
02/15/22 (S) STA, JUD
03/31/22 (S) STA AT 3:30 PM BUTROVICH 205
BILL: HB 123
SHORT TITLE: STATE RECOGNITION OF TRIBES
SPONSOR(s): ZULKOSKY
03/03/21 (H) READ THE FIRST TIME - REFERRALS
03/03/21 (H) TRB, STA
03/30/21 (H) TRB AT 8:00 AM DAVIS 106
03/30/21 (H) Heard & Held
03/30/21 (H) MINUTE(TRB)
04/01/21 (H) TRB AT 8:00 AM DAVIS 106
04/01/21 (H) Moved HB 123 Out of Committee
04/01/21 (H) MINUTE(TRB)
04/05/21 (H) TRB RPT 3DP 1NR
04/05/21 (H) DP: FIELDS, TARR, ZULKOSKY
04/05/21 (H) NR: CRONK
04/17/21 (H) STA AT 3:00 PM GRUENBERG 120
04/17/21 (H) Heard & Held
04/17/21 (H) MINUTE(STA)
04/22/21 (H) STA AT 3:00 PM GRUENBERG 120
04/22/21 (H) Moved HB 123 Out of Committee
04/22/21 (H) MINUTE(STA)
04/26/21 (H) STA RPT 5DP 1NR
04/26/21 (H) DP: VANCE, CLAMAN, STORY, TARR, KREISS-
TOMKINS
04/26/21 (H) NR: KAUFMAN
05/19/21 (H) LIMIT ALL DEBATE TO 2 MIN EACH Y23 N16
E1
05/19/21 (H) MOTION TO TABLE UC
05/19/21 (H) TAKEN FROM TABLE UC
05/19/21 (H) TRANSMITTED TO (S)
05/19/21 (H) VERSION: HB 123
01/18/22 (S) READ THE FIRST TIME - REFERRALS
01/18/22 (S) STA, CRA
02/10/22 (S) STA AT 3:30 PM BUTROVICH 205
02/10/22 (S) Heard & Held
02/10/22 (S) MINUTE(STA)
02/15/22 (S) CRA REFERRAL REMOVED
02/15/22 (S) STA AT 3:30 PM BUTROVICH 205
02/15/22 (S) Heard & Held
02/15/22 (S) MINUTE(STA)
03/03/22 (S) STA AT 3:30 PM BUTROVICH 205
03/03/22 (S) <Bill Hearing Canceled>
03/10/22 (S) STA AT 3:30 PM BUTROVICH 205
03/10/22 (S) -- MEETING CANCELED --
03/17/22 (S) STA AT 3:30 PM BUTROVICH 205
03/17/22 (S) Heard & Held
03/17/22 (S) MINUTE(STA)
03/31/22 (S) STA AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
TYLER HARDER, JAG Alternate Appointee
Military Appeals Commission
Eagle River, Alaska
POSITION STATEMENT: Testified as appointee to the JAG Alternate
Seat for the Military Appeals Commission.
REPRESENTATIVE JAMES KAUFMAN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 187.
MATTHEW HARVEY, Staff
Representative James Kaufman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
187.
KACI SCHROEDER, Assistant Attorney General
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Introduced SB 188 on behalf of the
administration.
ANGIE KEMP, Director
Criminal Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on SB
188.
NANCY MEADE, General Counsel
Office of the Administrative Director
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Answered questions and provided information
during the hearing on SB 188.
SCOTT OGAN, Staff
Senator Mike Shower
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Offered his observations and recommendations
during the hearing on HB 123.
NICOLE BORROMEO, Executive Vice President and General Counsel
Alaska Federation of Natives (AFN)
Anchorage, Alaska
POSITION STATEMENT: Provided background information on federal
Indian law and discussed what HB 123 does and does not do.
JULIE KITKA, President
Alaska Federation of Natives
Anchorage, Alaska
POSITION STATEMENT: Stated support for HB 123 and Nicole
Borromeo's testimony.
BETTY JO MOORE, representing self
Anchorage, Alaska
POSITION STATEMENT: Stated support for HB 123 with Mr. Ogan's
recommendation.
ACTION NARRATIVE
3:33:47 PM
CHAIR MIKE SHOWER called the Senate State Affairs Standing
Committee meeting to order at 3:33 p.m. Present at the call to
order were Senators Holland, Reinbold, Costello, and Chair
Shower.
^CONFIRMATION HEARING(S)
CONFIRMATION HEARING(S)
Military Appeals Commission
3:34:20 PM
CHAIR SHOWER announced the consideration of Governor Appointees
to Boards and Commissions.
He asked Tyler Harder to tell the committee about his interest
in serving on the Military Appeals Commission.
3:34:42 PM
TYLER HARDER, JAG Alternate Appointee, Military Appeals
Commission, Eagle River, Alaska, stated that since June 2017, he
has served as the senior civilian legal advisor to the commander
of the Alaska Command (ALCOM) for the Alaskan NORAD Region
located at Joint Base Elmendorf Richardson (JBER). Prior to this
he served for 24 years as an Army judge advocate starting at
Fort Wainwright in 1991. His military career was focused on
military justice and the military criminal process, first as a
prosecutor or defense attorney at the trial level and then as a
supervisor and mentor to younger counsel. In 2014 he chose to
retire rather than accept the order that would send him outside
of Alaska.
MR. HARDER stated that his familiarity with the National Guard
structure stems from the time he spent working with a number of
state National Guards. Through that work he developed a great
respect for the state sovereignty under which the individual
state guards operate. In his current position he has had the
opportunity to work closely with the Alaska organized militia.
This includes the joint staff and the Air and Army National
Guards at various levels. He offered his belief that his
background and experience fit well with serving on the Military
Appeals Commission. If confirmed, he looks forward to serving.
3:38:42 PM
CHAIR SHOWER observed that his background and experience clearly
aligned with service on this commission. He said he asks all
appointees two generic questions. The first is whether he has
any skeletons in the closet that the committee should know about
now that might come out later.
MR. HARDER replied the answer is unequivocally no.
CHAIR SHOWER asked if he had identified any problem areas or a
priority that he would like to accomplish while serving on this
commission.
3:40:54 PM
MR. HARDER said given the events that gave rise to establishing
the [Alaska Code of Military Justice (ACMJ)], he wants to ensure
things are done correctly from the start to provide a good
foundation for the future. He said he looks forward to this
opportunity.
SENATOR HOLLAND asked if this would be his first term.
MR. HARDER answered yes.
SENATOR HOLLAND commented that this looks like a good fit.
3:42:30 PM
SENATOR REINBOLD asked him to talk about the article he wrote
about "Every Child Left Behind."
MR. HARDER replied that he had not been admitted to the Alaska
State Bar when he retired, so he was looking for things to do
other than practice law. The opportunity to teach Junior Reserve
Officers' Training Corps (JROTC) at Bartlett High School
presented itself and he did that for several years while he
worked to pass the state bar. He has enjoyed the work and
believes he helped a few students along the way.
MR. HARDER explained that when he was selected to attend the
Army War College in Carlisle, Pennsylvania, he had just returned
from Iraq and decided to use the opportunity to look into the
effect of multiple deployments on children when their fathers
and mothers are away from home for six months to a year at a
time, and what the military could do about that. There was
little focus on this at the time and the purpose of the article
was to bring attention to that aspect of deployments.
SENATOR REINBOLD also asked whether appeals stemming from the
Governor's COVID-19 mandates would be within the jurisdiction of
the Military Appeals Commission.
MR. HARDER asked if she was referring to the requirement for all
National Guardsmen on Title 10 status to receive the vaccine.
SENATOR REINBOLD answered yes.
MR. HARDER replied he didn't know for certain whether or not the
commission would deal with that matter, and he didn't know the
Guard's position. To the second question, he said he wasn't sure
what his position would be until he had all the information from
both sides. He shared that based on his personal belief, he
voluntarily received the vaccine long before it was required. He
said he does believe there are some constitutional issues
associated with a blanket requirement, particularly for civilian
employees in federal service, and that is working its way
through the courts. He noted that different case law applies to
the long-standing requirement for military members to be
vaccinated for certain things.
SENATOR REINBOLD offered her perspective which is to err on the
side of personal liberties and medical choices. She emphasized
that Alaska is an opt-in state; offered her perspective of the
data associated with the Covid-19 vaccine; and emphasized that
she will work with all military members who choose not to take
the vaccine.
3:53:43 PM
SENATOR COSTELLO asked for his perspective of the students at
Bartlett High School who were in JROTC and their readiness to
enter the military in the future. She also asked for an
explanation of what the Military Appeals Commission does.
MR. HARDER explained that the Military Appeals Commission
listens to the first appellate level of cases that are handled
through the National Guard's criminal adjudication process. He
didn't know the scope of the commission's jurisdiction, but he
did know that individual soldiers or airmen who disagree with a
decision have the opportunity for further appeal.
To the question about JROTC at Bartlett High School, he said he
particularly enjoyed the diversity and for the most part the
students acted like his own five kids did when they were treated
with respect but given firm boundaries. He acknowledged that it
was a challenge that many students came from low-income homes
that provided little structure which was an additional challenge
for teenagers.
CHAIR SHOWER echoed Senator Reinbold's sentiments about the
importance of taking care of service members and not losing them
needlessly. Finding no further comments or questions, he
solicited a motion.
3:59:39 PM
SENATOR REINBOLD stated that in accordance with AS 39.05.080,
the Senate State Affairs Standing Committee reviewed the
following and recommends the appointments be forwarded to a
joint session for consideration.
Military Appeals Commission
Tyler Harder, JAG Alternate - Eagle River
CHAIR SHOWER reminded members that signing the reports regarding
appointments to boards and commissions in no way reflects
individual members' approval or disapproval of the appointees;
the nominations are merely forwarded to the full legislature for
confirmation or rejection.
4:00:16 PM
CHAIR SHOWER opened public testimony on the appointment of Tyler
Harder to the Military Appeals Commission; finding none, he
closed public testimony.
4:00:34 PM
At ease
HB 187-STATE AGENCY PUBLICATIONS
4:01:55 PM
CHAIR SHOWER reconvened the meeting and announced the
consideration of CS FOR HOUSE BILL NO. 187(STA) "An Act relating
to the elimination or modification of state agency publications
that are outdated, duplicative, or excessive or that could be
improved or consolidated with other publications or exclusively
delivered electronically; and providing for an effective date."
He noted that the bill was heard previously, and the sponsor and
staff were at the table to answer questions.
4:02:41 PM
SENATOR HOLLAND asked why the committee substitute (CS) changed
the timing to submit the list of publications to every even
numbered year.
REPRESENTATIVE JAMES KAUFMAN, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 187, deferred the question to his staff,
Mathew Harvey.
4:03:18 PM
MATTHEW HARVEY, Staff, Representative James Kaufman, Alaska
State Legislature, Juneau, Alaska, explained that publishing
once every other year at the beginning of each new legislature
follows the same two-year cycle as legislation.
4:03:57 PM
CHAIR SHOWER opened public testimony on HB 187; finding none he
closed public testimony.
REPRESENTATIVE KAUFMAN thanked the committee for considering the
bill.
SENATOR REINBOLD commented on the long co-sponsor list.
4:04:51 PM
SENATOR REINBOLD moved to report HB 187, work order 32-LS0779\W,
from committee with individual recommendations and attached
fiscal note(s).
CHAIR SHOWER found no objection and CSHB 187(STA) was reported
from the Senate State Affairs Standing Committee.
4:05:16 PM
At ease
SB 188-CRIM PROCEDURE; CHANGE OF NAME
4:07:15 PM
CHAIR SHOWER reconvened the meeting and announced the
consideration of SENATE BILL NO. 188 "An Act relating to
criminal law and procedure; relating to a petition for a change
of name for certain persons; relating to procedures for bail;
relating to consecutive sentencing for violation of condition of
release; relating to the duty to register as a sex offender;
amending Rules 6(r) and 47, Alaska Rules of Criminal Procedure;
amending Rule 12, Alaska Delinquency Rules; amending Rule 84,
Alaska Rules of Civil Procedure; and providing for an effective
date."
CHAIR SHOWER listed the individuals available to answer
questions and asked Kaci Schroeder to introduce the bill.
4:08:41 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law, Juneau, Alaska, stated that SB 188 does four
things, and she would discuss them in the following order:
1) It deals with name changes for people involved in the
criminal justice system;
2) It amends the bail statutes;
3) It amends the role of the grand jury regarding presenting
hearsay at grand jury; and
4) It amends the Plain-Error Rule for cases that go on appeal.
MS. SCHROEDER explained that SB 188 requires people under the
jurisdiction of the Department of Corrections (DOC), to notify
that department and the Department of Public Safety if they are
required to register as a sex offender, and the Court System
when they want to change their name. Currently neither
department routinely receives this notice which makes it
difficult to track these people and difficult for victims to
track individuals as they move through the criminal justice
system. The bill asks people who are not charged with a crime
but want to change their name, to notify the Court System and
identify the case so the court knows the person is involved in
the criminal justice system. With this information and
notification, the court will evaluate the request to change a
name based on criteria that ensures the request is not made for
a fraudulent purpose or to evade law enforcement.
4:10:29 PM
MS. SCHROEDER explained that SB 188 changes the bail statutes in
the following ways:
• Defendants must give the prosecutor 48-hour notice when
seeking a bail review hearing so the prosecutor can
provide meaningful notice to victims who have a right to
participate in bail hearings.
• Judges are required to provide written findings for the
bail and conditions they order. This will provide a
written record, whereas the current process is to check a
box and give the order orally, which is more difficult to
track and may not be as clear as it would if it were in
writing.
• There is a rebuttable presumption that somebody who has
violated conditions of release in the past, poses a risk
to the victim or the community or that they won't appear.
In the law, a rebuttable presumption is a strong
suggestion from the legislature that something needs to
change. It is not a presumption of no release; it is just
that the person poses a risk and something needs to
happen to address that risk.
• Consecutive sentencing is addressed. When somebody
violates their conditions of release, that can trigger a
new criminal charge called violating conditions of
release. The current system creates the potential for a
revolving door of arrest, bail, release, violation of
conditions, and the cycle repeats. This is a drain on
resources and it jeopardizes public safety when someone
is unwilling to comply with conditions.
Sometimes the court will run the sentences concurrently
when there is an underlying crime as well as several
violations of conditions of release. SB 188 says that
when that happens, there must be some additional sanction
for each violation of conditions of release.
4:14:29 PM
MS. SCHROEDER said the third thing SB 188 does is allow
witnesses to summarize the testimony of other witnesses at grand
jury, which is the charging phase of the case. The current
process requires every witness to go to grand jury to offer
their own testimony and this has to happen within 10 days after
a person is arrested. This means that the victim who has already
given their statement to law enforcement has to relive that
event days later when they recount their story in a room full of
strangers.
SB 188 provides that, at the prosecutor's discretion and based
on the case, one person or a couple may go to grand jury and
summarize the testimony of other witnesses. This would be less
traumatizing for the victim and it would streamline and speed up
the process. This does not change the fact that all the witness
must be available at trial and for cross-examination.
4:16:06 PM
MS. SCHROEDER said SB 188 seeks to return the Plain Error Rule
to what it was pre-2011. An appeal in a criminal case
historically started with an objection, which preserved the
issue on appeal except when the error was plain. Historically an
error was plain if it affected substantial rights, was obvious,
had a prejudicial effect, and the decision not to object was not
tactical.
Beginning in 2011 a series of cases were handed down that
reinterpreted the rule and shifted the burden of proof from the
defendant to show prejudice to the state to prove the error was
harmless beyond a reasonable doubt. The cases also redefined the
word "obvious" to include things that are truly debatable.
Furthermore, the court will only find that a failure for counsel
to object was tactical if the record is clear that it was
tactical. The result has been that more cases are taken up on
appeal. Now more cases have to be defended on appeal,
convictions are jeopardized, the system is less fair, and it's a
drain on resources. SB 188 would restore the Plain Error Rule to
what it was pre-2011 and provide more finality for victims.
4:19:40 PM
SENATOR COSTELLO asked for examples of what conditions of
release might include. She also asked her to discuss the
significance of a grand jury indictment and the influence it has
on the outcome of a trial.
MS. SCHROEDER said conditions of release are tailored to both
the case and the defendant and might include such things as no
contact with the victim and no alcohol consumption. The
rebuttable presumption is a strong suggestion from the
legislature that this situation must be addressed. The court
might respond by requiring the person to engage in a 24/7
sobriety program that requires daily screening. The idea is to
adjust the conditions to ensure the individual can comply and
public safety is preserved.
To the question about the grand jury, she said the constitution
requires all felony cases to be brought before a grand jury, but
she didn't know the conviction rate in those cases.
SENATOR REINBOLD expressed concern about people who are under
conditions of release and have had their trials delayed due to
Covid-19.
MS. SCHROEDER said the prosecutor or the defense attorney can
always ask the court to adjust the conditions of release, and
the courts are considering trial delays and restrictions on
people's liberty so that too is an avenue to seek an adjustment.
She added that SB 188 proposes to make the system more efficient
in getting indictments and addressing the backlog.
4:24:28 PM
CHAIR SHOWER said he may circle back to this topic.
SENATOR REINBOLD said the case she referenced did not have a
change in circumstance. She also said she didn't care for the
use of the term hearsay.
MS. SCHROEDER said hearsay is the term that is used under the
law. Regarding additional bail hearings, it is not uncommon for
attorneys to request a bail hearing to argue for a change when
somebody has complied for a long time.
4:25:59 PM
SENATOR REINBOLD asked if the hearings can take place online
since the courts have been closed.
MS. SCHROEDER said yes, and criminal hearings take priority.
CHAIR SHOWER asked Angie Kemp if she could answer Senator
Costello's question.
4:26:27 PM
ANGIE KEMP, Director, Criminal Division, Department of Law,
Anchorage, Alaska, said she wasn't aware of statistics on the
conviction rates following a grand jury indictment.
CHAIR COSTELLO said her reason for asking was to fully
understand the significance of a grand jury indictment to all
the people that are involved in the case. She said she assumes
that allowing hearsay would result in a faster indictment from
the grand jury, but this raises concerns about the accuracy of
hearsay witnesses and whether the accused would have the ability
to mount a proper defense.
MS. KEMP agreed that it was correct to suggest that the grand
jury indictment is a significant event in the process. It is
akin to the probable cause finding, which is one phase among
many, but once there is an indictment the victim is informed
that the case is moving forward to superior court.
CHAIR SHOWER asked Ms. Meade if she had anything to add.
4:29:50 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, Anchorage, Alaska, stated that
over the past four years between 2,500 and 3,000 cases have gone
to grand jury and in about 99 percent of those cases the grand
jury returned an indictment. That left about one percent of
cases that did not result in indictment.
CHAIR SHOWER asked if she would agree that the data shows that
prosecutors are doing a good job of presenting the data in a
case and are getting high rates of indictments.
MS. MEADE replied the data indicates that nearly all the cases
the prosecutor decides to take to grand jury result in an
indictment.
CHAIR SHOWER said that's important information for the record
because it counters the public perception that criminals often
go free.
MS. MEADE clarified that the 2,500 to 3,000 cases that went to
grand jury are far fewer than the total number of felonies that
were filed. These are only the ones that the prosecutor decided
to take to a grand jury.
CHAIR SHOWER said he understands that, but the data does
highlight that the prosecutors have a high rate of success on
those cases they decide to take forward.
4:32:57 PM
SENATOR COSTELLO asked what the conviction rate was on those
indictments.
MS. MEADE said she didn't have that information and wasn't
certain it was available. She asked if would help to know that
in felony cases, about one-third are dismissed by the
prosecutor, about two percent go to trial, and about 68 percent
are resolved through a guilty plea.
SENATOR COSTELLO said she was trying to understand the end
result of allowing hearsay because she would assume that
allowing family and loved ones to serve as a witness would make
it easier to get a grand jury indictment.
4:34:50 PM
MS. MEADE agreed that a reason to allow hearsay is to make it
easier to get an indictment. The data shows an indictment
usually results from a grand jury, although Ms. Schroeder said
it would be faster and more efficient to allow hearsay.
CHAIR SHOWER noted that both Senator Reinbold and Senator
Costello were very strong advocates of victim rights, and both
worked to repeal Senate Bill 91.
SENATOR REINBOLD asked her to clarify the definition of hearsay
in criminal law.
MS. MEADE replied it is a well understood term in the field of
law. The standard definition is, "An out of court statement
offered for the truth in the matter asserted in that statement."
Because it's out of court the true source of the statement is
not examined.
4:37:56 PM
CHAIR SHOWER asked if this ties into the right of the defendant
to face their accuser.
MS. MEADE replied that is the underpinning of the hearsay rule
so it's possible to talk to and examine the source of the issue.
For example, if the bill passes and hearsay is permitted, the
prosecutor would be able to introduce a police report that says
what happened as opposed to producing the people who told the
police about the matter that was put in the police report.
Allowing hearsay would streamline the process because in that
example, the officer reading the report would be the only one to
present what happened. She said Ms. Schroeder would point that
out later in the proceeding or at trial the defendant would have
a chance to examine the people who gave the police the
information that went into the report. Hearsay is not permitted
at that point unless there is one of the exceptions.
CHAIR SHOWER asked for assurance that throughout the process the
defendant would have the right to cross examine the people who
gave the information that went into the police report.
MS. SCHRODER replied,
That's correct. There is no confrontation, and I think
that's what you're describing - the right to cross
examine witnesses etcetera. That does not occur at
grand jury as Ms. Meade has described. The grand jury
proposal only changes the hearsay aspect of grand
jury. The defendant would still be able to review the
record of the grand jury, challenge the record, file
motions to dismiss. It happens all the time, and they
would still be able to do that. We would still need to
bring all of the witnesses in at trial for that
confrontation, the confrontation clause so that the
defendant could cross examine those witnesses.
CHAIR SHOWER said that was helpful.
4:41:56 PM
SENATOR REINBOLD spoke about how this is important for rape
victims. She noted that Ms. Meade gave a clear definition of
hearsay and asked Ms. Schroder to clarify that the Department of
Law agrees with that definition.
MS. SCHRODER concurred with Ms. Meade's description that hearsay
is defined by Court Rule; Its "an out of court statement
offered for the truth of the matter asserted."
CHAIR SHOWER asked Ms. Schroder if she wanted anyone else to
testify for the administration.
MS. SCHRODER answered no but it would be helpful to ask Ms. Kemp
if she had anything to add.
CHAIR SHOWER asked Ms. Kemp if she had testimony to offer.
MS. KEMP mentioned Senator Reinbold's concern about protecting
victims of rape and highlighted that a primary objective is
victim protection. Under the current rule a victim of child
sexual abuse is required to testify at grand jury and then at
trial.
4:45:09 PM
CHAIR SHOWER found no further questions or comments and stated
he would hold SB 188 for future consideration.
HB 123-STATE RECOGNITION OF TRIBES
4:46:14 PM
CHAIR SHOWER announced the consideration of HOUSE BILL NO. 123
"An Act providing for state recognition of federally recognized
tribes; and providing for an effective date."
He stated that the intention is to hear invited testimony and
try to assuage the concerns some members have expressed. He
listed the individuals who were available to testify and answer
questions.
4:47:22 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska, offered his belief that it was time
that the state recognize tribes in Alaska. The federal
government recognizes both tribes in Alaska and the State of
Alaska as sovereigns; federal case law recognizes tribal
sovereignty; and state case law recognizes some levels of tribal
sovereignty. He said his largest concern was how the sovereign
immunity of tribes affects things such as torts and taxes.
However, attorneys for both the Department of Law and
Legislative Legal Services have opined that the bill only
formally recognizes tribes. It changes nothing else. The
Department of Law convinced him there was no reason for concern,
but the chair may offer an amendment to remove the enabling
sections of the bill.
MR. OGAN stated that he initially had concerns that Sections 3
and 4 placed recognition of tribes in Chapter 44.03 that talks
about sovereignty of state issues, such as ownership of water
and submerged land. He said there has been a lot of tension
about these issues over the years and his recommendation is to
place recognition of tribes in bill Section 5 in its own
chapter. He related that several attorneys familiar with the
topic have said that such an amendment would not substantially
change the policy and it would keep the initiative off the
ballot. He offered his belief that the initiative would "cause
unfortunate rhetoric and possibly exacerbate some people's
perceptions of the relationship between Natives and non-Natives,
especially as written."
CHAIR SHOWER asked Nicole Borromeo to offer her testimony.
4:55:55 PM
NICOLE BORROMEO, Executive Vice President and General Counsel,
Alaska Federation of Natives (AFN), Anchorage, Alaska, stated
that her testimony on HB 123 was intended to provide a simple
explanation of what the bill does and does not do. She would
also provide background information on federal Indian law which
should make it easier for the committee to pass the bill.
MS. BORROMEO provided the following testimony:
The United States has a trust relationship with
federally recognized Alaska Native tribes. The concept
has evolved from federal tribal treaties, the U.S.
Constitution, federal statute, Supreme Court juris
prudence etcetera. The relationship subjects the
United States to the highest degree of moral and legal
obligations and has been reaffirmed in every piece of
modern federal Indian legislation and presidential
policy statements in recent times.
The bill before the committee today, HB 123, will not
affect the tribal trust responsibility that the
federal government shares with our tribes.
Furthermore, federal recognition is a political
process that institutionalizes the government-to-
government relationship between the United States and
recognized tribes.
The process also cements the tribes' political status
as a distinct society which carries certain political
and legal powers. The vast majority of these powers
are related to the tribe's members and/or its lands.
Federal recognition can be accomplished through
treaty, statute, or other administrative means. Again,
this bill, HB 123 will not affect federal recognition
of tribes.
Sovereignty of federally recognized tribes has been a
sticking point for this committee and an issue that is
difficult for Alaskans to grapple with. American
Indian and Alaska Native tribes were self-governing
societies for centuries before European contact. As
such, the United States Supreme Court has consistently
ruled that the sovereignty powers of federally
recognized tribes are not, in general, delegated
powers from the United States. Rather, they are
inherent powers of a limited sovereignty. Sovereignty
has been limited because we have a federal government
now and state governments.
In the simplest form, sovereignty means that the tribe
has the ability to manage its own affairs. Tribes can
form their own governing structures, determine tribal
membership, make and enforce lands, license and
regulate activities on tribal lands, and exclude
certain persons from tribal lands. Most of that list
that I just read relates to tribes in the Lower 48
because Alaska settled its land claims differently
with Alaska Native tribes than Lower 48 tribes did.
Again, HB 123 will not affect the sovereignty of
Alaska Native tribes.
State recognition of tribes is possible and that is
something that is not necessarily being asked of this
committee today. What's being asked of the committee
today is to recognize in statute the list of federally
recognized tribes. However, certain states have
recognized tribes that are not recognized by the
federal government. This mainly occurs on the East
Coast where a lot of those tribes were removed so the
lands could be settled in the early turn of the
century when the United States was colonized.
Finally, taxation was brought up as is torts with the
previous testifier and questions concerning
sovereignty of tribes and whether HB 123 could affect
either the state's ability to tax Alaska Native lands
or would absolve an Alaska Native tribe or tribal
entity from a tort.
In short, HB 123 will have no bearing on the state
taxation of ANC land. Furthermore, sovereign immunity
will have to be negotiated and waived on a case-by-
case basis. And that is what currently happens right
now with tribes.
So we hope that you will move HB 123 from this
committee today if there are no more lingering
questions about the state's ability to recognize
federally recognized tribes or the benefits to the
state of Alaska for doing so.
5:00:39 PM
At ease
5:00:49 PM
CHAIR SHOWER reconvened the meeting.
SENATOR HOLLAND stated his belief that HB 123 was long overdue.
However, he said there seems to be angst and perhaps a desire to
not get along between the state and many tribal entities. He
asked how it is interpreted when people introduced themselves as
a group from an unseated land.
MS. BORROMEO replied it depends on who makes the statement, but
she interprets it as a sign of respect and acknowledgement to
the indigenous groups that occupied the land before
colonization. She does not interpret it as a sign of disrespect
to the current forms of federal or state government.
SENATOR HOLLAND said his assumption was that it is a statement
of pride. He stated support for HB 123, although he did want to
see the proposed amendment.
CHAIR SHOWER stated that he continues to think that HB 123 is
the path forward, although with some changes that do not alter
the bill but assuage some member's concerns.
He asked Ms. Kitka if she had testimony of offer.
5:04:29 PM
JULIE KITKA, President, Alaska Federation of Natives, Anchorage,
Alaska, thanked the chair for inviting Ms. Borromeo to testify
and said she would be available to answer further questions. She
highlighted that Ms. Borromeo had passed the Bar in multiple
states and had a depth of experience on legal issues pertaining
to Indian law and Alaska Natives.
5:04:58 PM
CHAIR SHOWER asked Ms. Moor if she had closing comments.
5:05:11 PM
BETTY JO MOORE, representing self, Anchorage, Alaska, stated
that she liked what Mr. Ogan said about focusing on the
recognition of tribes. She also articulated support for
additional references to comity, due diligence and sovereignty.
She noted that she had been reading about the trust
responsibility and obstruction of justice within tribal
government. She suggested that the bill needed more work to
clarify the meaning of jurisdiction. She said she would like
more assurance that within tribal governments, the
constitutional rights of tribal and nontribal citizens will be
protected, as what Michael Geraghty did on behalf of Edward
Parks. She stated support for HB 123 "with the recommendation of
recognition of tribes and jurisdiction deleted."
5:08:39 PM
CHAIR SHOWER held HB 123 for future consideration.
5:08:54 PM
There being no further business to come before the committee,
Chair Shower adjourned the Senate State Affairs Standing
Committee meeting at 5:08 p.m.