Legislature(1995 - 1996)

03/10/1995 01:45 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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                     HOUSE FINANCE COMMITTEE                                   
                         March 10, 1995                                        
                            1:30 P.M.                                          
                                                                               
  TAPE HFC 95-43, Side 2, #000 - end.                                          
  TAPE HFC 95-44, Side 1, #000 - end.                                          
  TAPE HFC 95-44, Side 2, #000 - 543.                                          
                                                                               
  CALL TO ORDER                                                                
                                                                               
  Co-Chair  Mark  Hanley called  the  House Finance  Committee                 
  meeting to order at 1:45 p.m.                                                
                                                                               
  PRESENT                                                                      
                                                                               
  Co-Chair Hanley               Representative Martin                          
  Representative Brown          Representative Mulder                          
  Representative Grussendorf    Representative Therriault                      
  Representative Kelly                                                         
  Representative Kohring                                                       
                                                                               
  Co-Chair Foster and Representatives Navarre and Parnell were                 
  absent from the meeting.                                                     
                                                                               
  ALSO PRESENT                                                                 
                                                                               
  Senator Loren Leman; Representative Carl Moses; Ron Swanson,                 
  Director,   Division  of   Lands,   Department  of   Natural                 
  Resources; Dean Guaneli, Chief,  Assistant Attorney General,                 
  Department  of  Law;  Jill  Parson,  Mat-Su  Borough;  Jayne                 
  Andreen, Director,  Council on Domestic Violence  and Sexual                 
  Assault;  Geron  Bruce, Legislative  Liaison,  Department of                 
  Fish  and  Game; Tamara  Cook,  Director,  Legislative Legal                 
  Services,  Legislative  Affairs  Agency;  Nico  Bus,  Acting                 
  Director, Support Services  Division, Department of  Natural                 
  Resources.                                                                   
                                                                               
  SUMMARY                                                                      
                                                                               
  HB 20     An  Act  relating to  rights  in certain  tide and                 
            submerged land.                                                    
                                                                               
            CSHB 20 (FIN)  was reported out of  Committee with                 
            "no recommendation" and  with three fiscal  impact                 
            notes, one by the Department of Fish and Game, two                 
            by  the  Department   of  Natural  Resources  (one                 
            published  date,  2/3/95; and  with a  zero fiscal                 
            note by the Department  of Community and  Regional                 
            Affairs, dated 2/3/95.                                             
                                                                               
                                1                                              
                                                                               
                                                                               
  HB 72     An Act  enacting the  Uniform Fraudulent  Transfer                 
            Act.                                                               
                                                                               
            HB 72 was rescheduled to 3/14/95.                                  
  SB 13     An Act relating  to the admissibility  of evidence                 
            and testimony in  criminal and civil  proceedings;                 
            directing  the  admissibility  into   evidence  of                 
            deoxyribonucleic acid (DNA)  profiles in civil and                 
            criminal  proceedings;  amending Rules  702(a) and                 
            703 of the Alaska Rules  of Evidence to modify the                 
            rule relating to  the basis or foundation  for the                 
            admissibility  of expert opinion testimony that is                 
            based on  scientific evidence; and  amending Rules                 
            401, 403, and 705 of the Alaska Rules of Evidence.                 
                                                                               
            HCS CSSB 13  (FIN) was  reported out of  Committee                 
            with a "do pass" recommendation and with four zero                 
            fiscal  notes  by  the Department  of  Law,  dated                 
            2/9/95; Department of Public Safety, dated 2/9/95;                 
            the Department  of Corrections, dated  2/9/95; and                 
            the Department of Administration.                                  
  HOUSE BILL NO. 20                                                            
                                                                               
       "An  Act  relating  to  rights   in  certain  tide  and                 
       submerged land."                                                        
                                                                               
  Work Draft for HB 20,  #9-LS0118\G, dated 2/3/95 was adopted                 
  during the 3/3/95 meeting of the House Finance Committee.                    
                                                                               
  JILL   PARSONS,    MAT-SU   BOROUGH   testified    via   the                 
  teleconference network.  She stated  that the Mat-Su Borough                 
  supports HB 20 without modification.                                         
                                                                               
  Representative Martin expressed concern  with the effect  of                 
  changing tidelands on municipal boundaries.   He referred to                 
  a dispute in Gustavus over ownership of newly formed land.                   
                                                                               
  RON  SWANSON, DIRECTOR,  DIVISION  OF  LANDS, DEPARTMENT  OF                 
  NATURAL RESOURCES  responded to questions  by Representative                 
  Martin.    He explained  that  only  federal land  would  be                 
  available  for selection  under  the  Alaska  Native  Claims                 
  Settlement  Act.    He  discussed  the  status  of new  land                 
  developed as a result of natural  forces.  He explained that                 
  the  process of  determining ownership  of new  land  due to                 
  natural forces is complicated and technical.                                 
                                                                               
  In response to a question  by Representative Therriault, Mr.                 
  Swanson clarified that  the addition of "shore  lands" would                 
  capture navigable inland  lands in the Fairbanks  North Star                 
  Borough.  He noted that revenue  derived from shore lands is                 
                                                                               
                                2                                              
                                                                               
                                                                               
  minimal.  He  added that the  Department has not  emphasized                 
  obtaining revenue  from shore  lands.   He observed  that an                 
  increase in the tourism industry could result in revenue for                 
  the state or  municipalities derived from  shore lands.   He                 
  stressed  that the  Department  did  not anticipate  raising                 
  revenues from small privately owned and used docks.                          
                                                                               
  Representative Brown  MOVED to adopt Amendment 1 (Attachment                 
  1).   Co-Chair Hanley  OBJECTED for  purpose of  discussion.                 
  Representative  Brown  explained  that   Amendment  1  would                 
  clarify that subsurface interests are reserved to the state.                 
  She noted that  the sponsor did  not object to Amendment  1.                 
  There being NO OBJECTION, Amendment 1 was adopted.                           
                                                                               
  Representative  Brown  provided  members  with  Amendment  2                 
  (Attachment 2).   She explained  that the amendment  deletes                 
  "or sale" on  page 2. line 21.  She stressed that the intent                 
  is  not to allow  municipalities to select  large amounts of                 
  tidelands   for  resale   into  private   ownership.     She                 
  acknowledged  that   submerged  lands   and  tidelands   are                 
  important for public access.   She stressed that the  Public                 
  Trust  Doctrine will  be more easily  enforced if  the lands                 
  stay in state or municipal  ownership.  Municipalities could                 
  still lease lands under long term leases.                                    
                                                                               
  Representative Grussendorf  expressed concern that  the lack                 
  of ownership could  prevent private business  interests from                 
  securing financing.   Mr. Swanson observed that the trend in                 
  Western  states is  to  only lease  tidelands.   He  assured                 
  Representative Grussendorf that  long term leases, up  to 99                 
  years,  take care of the economic concerns of the banks.  He                 
  emphasized that  leases allow the state to respond to Public                 
  Trust Doctrine  concerns.   Most leases  run from  20 to  55                 
  years.                                                                       
                                                                               
  Representative  Mulder  noted  that municipal  ownership  of                 
  these lands would expand  the municipal tax base.   He spoke                 
  in support of HB 20.                                                         
                                                                               
  Representative Martin questioned if "or sale" should also be                 
  deleted in  section 1.  He spoke  in support of placing land                 
  in the "hands of the public."                                                
                                                                               
  Representative Brown  explained  that section  1  affects  a                 
  variety  of  actions  and activities  by  the  Department of                 
  Natural Resources.   Mr. Swanson agreed that  the Department                 
  would be adversely affected by the  deletion of "or sale" in                 
  section 1.                                                                   
                                                                               
  Representative Grussendorf clarified that a municipality can                 
  levy taxes on leases.                                                        
                                                                               
                                                                               
                                3                                              
                                                                               
                                                                               
  Representative  Brown  noted  that  there  is  oil  and  gas                 
  potential on much of  Alaska's coast.  She questioned  if it                 
  makes sense to allow private ownership of  surface rights in                 
  areas that  the state may need for  production facilities or                 
  other structures.                                                            
                                                                               
  Representative   Brown   MOVED   to   adopt   Amendment   2.                 
  Representative Martin OBJECTED.  A roll call vote  was taken                 
  on the MOTION.                                                               
                                                                               
  IN FAVOR: Grussendorf,  Kelly,  Mulder,  Therriault,  Brown,                 
  Hanley                                                                       
  OPPOSED:  Martin, Kohring                                                    
                                                                               
  Representatives Navarre,  Parnell and Foster were absent for                 
  the vote.                                                                    
                                                                               
  The MOTION PASSED (6-2).                                                     
                                                                               
  Representative  Brown  provided  members  with  Amendment  3                 
  (Attachment 3).  She noted that the amendment would add "and                 
  tidelands" on page  2, line 27  after "waters".  She  stated                 
  that the amendment  would maintain  access to tidelands  and                 
  clarify that municipalities would assure access to tidelands                 
  is provided.  Representative Brown  MOVED to adopt Amendment                 
  3.  There being NO OBJECTION, it was so ordered.                             
                                                                               
  Representative  Brown  provided  members  with  Amendment  4                 
  (Attachment 4).  She explained  that the amendment addresses                 
  how  shore  fisheries  leases  would   be  affected  by  the                 
  transfers.  The amendment would take land under lease out of                 
  the  transfer.     She  noted  that  there  is  no  specific                 
  classification of "shore fisheries development".  She stated                 
  that  the  intent  is  to  not disrupt  existing  commercial                 
  relationships  between  set-netters  and  the state  and  to                 
  maintain the status quo in respect to those interests.                       
                                                                               
  In response  to a question  by Co-Chair Hanley,  Mr. Swanson                 
  clarified  that  land  can  be  conveyed to  a  municipality                 
  subject to the lease.  Leases may also  be excluded from the                 
  conveyance.    If  the land  is  subject  to  the lease  the                 
  municipality would  have control of  the lease and  could do                 
  what they wish  with the land when  the lease expires.   The                 
  Public  Trust  Doctrine  only  covers  public  access.    He                 
  expressed concern that a  broad interpretation would prevent                 
  land  issuances to a municipality  for other uses within the                 
  area  of the  lease.  He  noted that  the intent is  to only                 
  protect the actual lease site.                                               
                                                                               
  Representative Brown  asked if there are fishermen operating                 
  without a lease.                                                             
                                                                               
                                                                               
                                4                                              
                                                                               
                                                                               
  TAMARA   COOK,   DIRECTOR,   LEGISLATIVE   LEGAL   SERVICES,                 
  LEGISLATIVE AFFAIRS  AGENCY  stated that  there  are  people                 
  operating set-net sites without leases.  She questioned if a                 
  narrow interpretation would leave out people who are fishing                 
  without a lease or prevent future leases.                                    
                                                                               
  Representative Mulder noted problems on  the Kenai Peninsula                 
  in regards to set-net fishers without leases.                                
                                                                               
  Mr. Mulder explained that limited entry permits in the state                 
  will not  change.   He noted  that it  is not  mandatory for                 
  fishermen to have  a lease  from the state.   He  emphasized                 
  that the lease  protects against  other fishermen using  the                 
  site.  Where  there is no lease  in place, the first  net in                 
  the water wins.   The  Department of Fish  and Game  decides                 
  where fishing can take place.                                                
                                                                               
  Representative Therriault observed that the first net in the                 
  water gets the spot only pertains to that fishing season.  A                 
  lease protects the spot for future years.                                    
                                                                               
  Mr. Swanson  noted that  12,000 to  13,000 thousand  set-net                 
  fishers  have  leases  out of  2,000  thousand.    There are                 
  another 300 applications.   Only about 300  fishers have not                 
  applied for a lease.                                                         
                                                                               
  Members were  provided with  Amendment  5 by  Representative                 
  Mulder (Attachment 5.)  Amendment 4 states that "land is not                 
  subject  to  a  shore fisheries  lease,"  while  Amendment 5                 
  states  that  "land is  not  classified for  shore fisheries                 
  development."  Mr. Swanson explained that the use of  "shore                 
  fisheries  development" in  Amendment  5 would  broaden  the                 
  language.   He  noted  that Amendment  5  could encompass  a                 
  larger  area  of land  than the  lease  area.   He expressed                 
  concern  that  the surrounding  land  which is  under "shore                 
  fisheries  development"  could  be closed  to  issuances for                 
  other uses.                                                                  
                                                                               
  Co-Chair Hanley noted that municipal  leases could be issued                 
  for areas conveyed from  the state.  Mr. Swanson  added that                 
  each  municipality   could  run  the   program  differently.                 
  Currently, the program is consistent  with the Department of                 
  Fish and Game and the Department  of Natural Resources.  The                 
  program only pays for itself.                                                
                                                                               
  Representative  Brown  pointed  out  that  "shore  fisheries                 
  development" is not  defined in statute.   Mr. Swanson spoke                 
  in support of Amendment 4.                                                   
                                                                               
  Representative Therriault pointed out that statutes  provide                 
  that the state  only charge the  amount needed to cover  the                 
  administration  of  the  leases.    He emphasized  that  the                 
                                                                               
                                5                                              
                                                                               
                                                                               
  leases,  while  they do  not  drive very  much  revenue, are                 
  "worth big dollars."  The leases are for six  years.  Yearly                 
  revenues from the leases amount  to $180.0 thousand dollars.                 
  Leases are assignable and are generally transferred with the                 
  permit.                                                                      
                                                                               
  Co-Chair Hanley noted that  there are some set-net  sites on                 
  the  Kenai that  people  would pay  $20.0 to  $30.0 thousand                 
  dollars a year to utilize.                                                   
                                                                               
  In response to a question  by Representative Therriault, Mr.                 
  Swanson  clarified  that  current lease  holders  are  given                 
  preference for renewal.                                                      
                                                                               
  REPRESENTATIVE CARL MOSES, the  bill sponsor, questioned  if                 
  Amendment 4 is necessary.  He maintained that set-net leases                 
  are  not enforceable.    He suggested  that a  set-net lease                 
  would not stand in the way of a major dock facility which is                 
  needed by  the public.   He  felt that  the amendment  would                 
  complicate the  issue.  Representative  Therriault disagreed                 
  that the lease would not be enforceable.                                     
                                                                               
  Co-Chair Hanley  asked if it  would be possible  to transfer                 
  land to  a municipality, yet  retain state control  of shore                 
  fisheries leases.                                                            
                                                                               
  Mr.   Swanson   stated  that   land   can  be   conveyed  to                 
  municipalities  with  the   retention  of  shore   fisheries                 
  management by the state.  He suggested that  the land may be                 
  conveyed to  municipalities subject to  state administration                 
  of shore fisheries lease under AS 38.05.082.                                 
                                                                               
  (Tape Change, HFC 95-44, Side 1)                                             
                                                                               
  Ms.  Cook  stated  that, if  the  state  conveys  land to  a                 
  municipality and retains  control of an existing  lease, the                 
  state's interest  in managing  the lease  remains until  the                 
  chain of renewal  is broken.   Mr. Swanson  stated that  the                 
  state could retain  the right to  issue new leases with  the                 
  concurrence  of   the  municipality   of  conveyance.     He                 
  emphasized  that   shore  fisheries  leases   are  generally                 
  utilized during short seasons.                                               
                                                                               
  Mr.  Swanson  interpreted  the  amendment  to  provide  that                 
  revenue derived from the  lease would go to the state.   Co-                 
  Chair   Hanley  noted   that   the  potential   revenue   is                 
  substantial.                                                                 
                                                                               
  Representative Moses reiterated that a shore fisheries lease                 
  would not  stand in the  way of  a major project.   Co-Chair                 
  Hanley  pointed out that  leases constitute  development and                 
  occupation according to  HB 20.   A municipality could,  for                 
                                                                               
                                6                                              
                                                                               
                                                                               
  the purpose of acquiring specific set-net sites, utilize the                 
  legislation to acquire  all the land in  their community for                 
  the  purpose of raising  revenues.  He  stressed that policy                 
  issues  still  need  to be  debated.    Representative Moses                 
  pointed  out that  an exclusive  right of fishery  cannot be                 
  granted.                                                                     
                                                                               
  Mr.  Swanson   observed  that  shore  fisheries  leases  are                 
  enforceable.   He emphasized  that the lease  only gives the                 
  right to fish.  No property interest is conveyed.  Once land                 
  is conveyed to  the municipality the state  cannot issue new                 
  leases.   He stressed  that areas not  currently under lease                 
  are not competing areas to the high fisheries.                               
                                                                               
  Representative Brown spoke  in support of Amendment  4.  She                 
  stressed that the  amendment would  allow some  lands to  be                 
  transferred while preserving existing  shore leases with the                 
  state.   Representative Brown  MOVED to  adopt Amendment  4.                 
  There being NO OBJECTION, it was so ordered.                                 
                                                                               
  Representative Mulder WITHDREW Amendment 5.                                  
                                                                               
  Representative  Brown  provided  members  with  Amendment  6                 
  (Attachment 6).   She noted that the  amendment defines what                 
  land  is  open to    municipal application.    The amendment                 
  states  that "land is within or  immediately adjacent to the                 
  boundaries  of  the  municipality."    She stressed  that  a                 
  municipality could apply for land that  is not even close to                 
  the municipality which could lead  to the defacto annexation                 
  of the area by the municipality.  She pointed to  an attempt                 
  by the  Municipality of Juneau to acquire  land not adjacent                 
  to the municipality for the purpose of annexing a mine site.                 
                                                                               
  Discussion  ensued  in   regards  to  the  wording   of  the                 
  amendment.  Representative Grussendorf suggested  the use of                 
  "contiguous."  Representative Brown amended her amendment to                 
  insert  "contiguous"  and  delete   "immediately  adjacent".                 
  Representative  Brown  MOVED to  adopt  Amendment 6.   There                 
  being NO OBJECTION, it was so ordered.                                       
                                                                               
  Representative  Brown  provided members  with   Amendment  7                 
  (Attachment  7).   She explained  that the  amendment is  in                 
  response to concerns regarding the potential for oil and gas                 
  subsurface interests.   Amendment 7 inserts "or  required to                 
  support a best  interest finding".   She noted that page  2,                 
  lines  23  and 24  states that:    "A conveyance  under this                 
  section may contain only those restrictions required by law,                 
  including  AS  38.05.127  and  (b) of  this  section."   She                 
  asserted  that  the  right  to  develop the  subsurface,  as                 
  necessary,  must  be  protected.   She  maintained  that the                 
  legislation is not  flexible enough to allow  the subsurface                 
  lessee to have the right to develop the surface as needed to                 
                                                                               
                                7                                              
                                                                               
                                                                               
  produce the subsurface oil or minerals.                                      
                                                                               
  Representative  Moses   did  not  feel  the   amendment  was                 
  necessary.                                                                   
                                                                               
  Mr. Swanson stated  that AS 38.05.127 only  covers access to                 
  and along water  bodies.  He  agreed that the amendment  may                 
  not be necessary  but emphasized  that valid state  interest                 
  concerns would be covered by the amendment.                                  
                                                                               
  Representative  Brown  MOVED to  adopt  Amendment 7.   There                 
  being NO OBJECTION, it was so ordered.                                       
                                                                               
  Representative  Brown  provided  members  with  Amendment  8                 
  (Attachment 8).                                                              
                                                                               
  GERON  BRUCE, LEGISLATIVE  LIAISON, DEPARTMENT  OF FISH  AND                 
  GAME  explained that there are 31 areas that the Legislature                 
  has  designated as special areas  because of their high fish                 
  and  wildlife, habitat  and  use values.    Most areas  were                 
  designated  upon the urging  of the public  and are multiple                 
  use areas.  Uses  are contingent upon the protection  of the                 
  habitat.   Areas  are jointly  managed by the  Department of                 
  Fish and Game and the Department  of Natural Resources.  The                 
  amendment would  ensure that  any decision  to convey  lands                 
  from  these designated  areas  is a  joint  decision by  the                 
  Department  of Fish and  Game and the  Department of Natural                 
  Resources.   There are  approximately 1.2  million acres  of                 
  tidelands  or submerged  lands  in  designated  special  use                 
  areas.                                                                       
                                                                               
  Representative Grussendorf spoke in support of Amendment 7.                  
                                                                               
  In  response  to  a question  by  Representative  Kelly, Mr.                 
  Swanson  clarified  that these  areas are  currently jointly                 
  managed.  In response to a  question by Co-Chair Hanley, Mr.                 
  Bruce clarified that there are other  statutory designations                 
  covered by (b) that are  not game refuges, game sanctuaries,                 
  or critical habitat areas.                                                   
                                                                               
  In  response  to  a question  by  Representative  Kelly, Mr.                 
  Swanson stated that the Department of  Fish and Game and the                 
  Department of Natural Resources would want to scrutinize the                 
  conveyance of designated special use land.                                   
                                                                               
  Representative   Brown   MOVED   to   adopt   Amendment   8.                 
  Representative Therriault OBJECTED.   A  roll call vote  was                 
  taken on the MOTION.                                                         
                                                                               
  IN FAVOR: Brown, Grussendorf                                                 
  OPPOSED:  Kelly, Kohring, Therriault, Hanley                                 
                                                                               
                                                                               
                                8                                              
                                                                               
                                                                               
  Representatives Martin, Mulder, Navarre,  Parnell and Foster                 
  were absent for the vote.                                                    
                                                                               
  The MOTION FAILED (2-4).                                                     
                                                                               
  In  response  to a  question  by Representative  Therriault,                 
  Representative Moses stated  that he  would prefer that  the                 
  addition of "shore lands" was handled in another bill.                       
                                                                               
  Representative Brown summarized that  lands will be conveyed                 
  based on a proposed  use.  She questioned if  a municipality                 
  is free to  change the land use  after the conveyance.   Mr.                 
  Swanson assumed  that the  conveyance would  be fee  simple,                 
  without any covenants or restrictions  outside of the Public                 
  Trust Doctrine or best interest finding.                                     
                                                                               
  Representative  Grussendorf  noted  that municipalities  can                 
  determine the use of land through  lease.  Mr. Swanson added                 
  that  municipalities  would  also   have  lease  enforcement                 
  authority.   Representative  Brown stated that  her concerns                 
  were alleviated by the adoption of Amendment 2.                              
                                                                               
  Representative Therriault MOVED to report  CSHB 20 (FIN) out                 
  of Committee  with individual  recommendations and  with the                 
  accompanying fiscal notes.   Co-Chair Hanley noted  that the                 
  Department of  Natural Resources'  fiscal note  was upgraded                 
  from $50.0 to $100.0 thousand dollars.                                       
                                                                               
  NICO  BUS, ACTING  DIRECTOR, DIVISION  OF  SUPPORT SERVICES,                 
  DEPARTMENT  OF NATURAL RESOURCES  explained that  the fiscal                 
  note was  updated after  realizing the  consequences of  the                 
  legislation.    He  observed that  the  Department  has $1.0                 
  million  dollars  in  lease  revenue.    He  estimates  that                 
  approximately  10  percent of  the revenue  will be  lost to                 
  municipalities.                                                              
                                                                               
  Representative Brown asked  if there would be an increase in                 
  workload.  Mr. Bus  clarified that no new positions  will be                 
  needed to administer the new authority.   He emphasized that                 
  staff that  formerly handled  leases would  be available  to                 
  handle the conveyances.   There is a one time  $6.0 thousand                 
  dollar  expense  to  cover  the Land  Administration  System                 
  casetype.                                                                    
                                                                               
  There being NO OBJECTION, CSHB 20 (FIN) was adopted with the                 
  accompanying fiscal notes.                                                   
                                                                               
  CSHB  20  (FIN)  was  reported  out  of Committee  with  "no                 
  recommendation" and with  three fiscal impact notes,  one by                 
  the Department of  Fish and Game,  two by the Department  of                 
  Natural Resources (one  published date,  2/3/95; and with  a                 
  zero fiscal note by the Department of Community and Regional                 
                                                                               
                                9                                              
                                                                               
                                                                               
  Affairs, dated 2/3/95.                                                       
  SENATE BILL NO. 13                                                           
                                                                               
       "An Act relating  to the admissibility of  evidence and                 
       testimony in criminal  and civil proceedings; directing                 
       the  admissibility  into  evidence of  deoxyribonucleic                 
       acid (DNA)  profiles in civil and criminal proceedings;                 
       amending  Rules 702(a) and  703 of the  Alaska Rules of                 
       Evidence to modify  the rule relating  to the basis  or                 
       foundation  for the  admissibility   of  expert opinion                 
       testimony  that is  based on  scientific evidence;  and                 
       amending Rules 401, 403, and 705 of the Alaska Rules of                 
       Evidence."                                                              
                                                                               
  SENATOR LOREN LEMAN testified in support  of CSSB 13(JUD) am                 
  (ct rule fld).   He  noted that the  legislation allows  the                 
  introduction of DNA  testing in  civil and criminal  trials.                 
  The legislation also  changes the  standard of DNA  evidence                 
  from  the Frye to the Daubert test.  The Daubert approach is                 
  used in federal  cases.   He noted that  court rule  changes                 
  included in SB  13 failed to pass the Senate.   He suggested                 
  that  the court  rule  change proposed  in  an amendment  by                 
  Representative Parnell  be adopted.   Members  were provided                 
  with Amendment  1 by Representative  Parnell (Attachment 9).                 
  Amendment  1 would remove the findings  section and add back                 
  one court rule change by amending Rule 703.                                  
                                                                               
  Senator Leman emphasized  that the  findings section of  the                 
  bill has been substantiated by  expert testimony.  He  noted                 
  members' intent  to streamline  the legislation  by removing                 
  the  findings section.    He stressed  that  removal of  the                 
  finding section  does not reflect  any question as  to their                 
  validity.                                                                    
                                                                               
  Senator Leman noted  that without the addition of  the court                 
  rule  changes DNA evidence can  still be introduced in civil                 
  or criminal trials.   However, the  change from the Frye  to                 
  the  Daubert standard could  not be  made without  the court                 
  instituting  the  change.    He  asserted that  the  Daubert                 
  standard  is a  superior  method.   He  emphasized that  DNA                 
  testing can help absolve persons of crime.                                   
                                                                               
  Representative Brown questioned if the court rule has  to be                 
  expressly modified in order  to be changed.  She  noted that                 
  the title does not accommodate a court rule change.                          
                                                                               
  (Tape Change, HFC 95-44, Side 2)                                             
                                                                               
  Senator Leman  emphasized that the bill should have at least                 
  one court rule change.   He assured members that  the Senate                 
  will support the addition of the court rule change.                          
                                                                               
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  Representative   Brown  asked  if   DNA  profiles  could  be                 
  introduced   without  having   to  prove   their  scientific                 
  validity.  Senator  Leman responded  that the Frye  standard                 
  requires the exercise  of showing  general consensus in  the                 
  scientific community.  Under the  Daubert standard the judge                 
  would admit evidence on the basis  of each case's scientific                 
  validity.                                                                    
                                                                               
  Representative Brown noted that there  are different ways to                 
  type DNA samples with varying  degrees of adequacy.  Senator                 
  Leman noted that methods are  changing.  No specific  method                 
  is identified in the legislation.  The judge has the ability                 
  to look at the evidence and determine if there is scientific                 
  validity to  the DNA  evidence for  each case.   The  test's                 
  validity would be debated at trial.   He noted that evidence                 
  in  the  Simpson trial  is being  debated.   In  response to                 
  further questioning  by Representative Brown,  Senator Leman                 
  noted that the  legislation states that  "the evidence of  a                 
  DNA profile is admissible to  prove or disprove any relevant                 
  fact."  He noted that the jury can weigh the adequacy of the                 
  evidence along with other evidence which is presented.                       
                                                                               
  Representative Brown asked  if the  court has addressed  the                 
  issue.  Senator Leman stressed that  the court will continue                 
  with the  Frye standard  unless the  change is  made by  the                 
  Legislature.   He emphasized that under the Frye standard it                 
  costs  approximately  $20  thousand  dollars to  demonstrate                 
  general consensus in  regards to the scientific  validity of                 
  DNA testing.  He observed that  there is a general consensus                 
  in the scientific community in regards to DNA typing.                        
                                                                               
  In response to  a question by Representative  Brown, Senator                 
  Leman   explained  that  several  experts  are  selected  to                 
  establish  the fact of a scientific  consensus in regards to                 
  the validity of DNA  testing.  He emphasized that  there may                 
  not be  a consensus on the accuracy for each type of testing                 
  or the validity of a particular  sample.  He maintained that                 
  the scientific community now accepts that each  person has a                 
  unique DNA print.   He  stressed that there  is a  consensus                 
  that DNA  testing is  a scientifically  valid procedure  for                 
  presenting evidence.                                                         
                                                                               
  DEAN  GUANELI, CHIEF ASSISTANT  ATTORNEY, DEPARTMENT  OF LAW                 
  stated that there is general scientific consensus that a DNA                 
  molecule  3exists, that it can be  found in all the cells of                 
  the  body,  and  that  it  can  be  broken  up  through  the                 
  application of certain chemicals.  When the parts are broken                 
  up  and  analyzed  they  can  be  compared  with  other  DNA                 
  molecules from other individuals.   He acknowledged that the                 
  consensus  as to  the  level of  probability  does not  have                 
  unanimity in the  scientific community.   He noted that  the                 
                                                                               
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  United  States  Supreme  Court   has  adopted  the   Daubert                 
  standard.  He suggested that courts be instructed to look to                 
  the  scientific  validity  not  the   to  unanimity  in  the                 
  scientific community because some of  the procedures are too                 
  new to have established scientific unanimity.                                
                                                                               
  Mr.  Guaneli  stated that  judges  will weigh  the pertinent                 
  factors  such  as  the  adequacy  of  the  sampling  or  the                 
  probability factor based  on the  defendant's subgroup.   He                 
  explained that the  court has  not felt it  is within  their                 
  purview to change the standard.  He stated that the issue is                 
  making its way  to the Alaska Supreme  Court.  He noted  the                 
  amount of  money spent by  the state  to bring  some of  the                 
  world's foremost experts on DNA typing to testify in serious                 
  criminal cases.  Mr. Guaneli noted that the legislation will                 
  allow local experts to testify in  regards to the scientific                 
  validity of the test used for a particular sample.  He noted                 
  that juries will  need to be  educated.  He emphasized  that                 
  in-state experts will be available.                                          
                                                                               
  JAYNE ANDREEN, DIRECTOR,  COUNCIL ON  DOMESTIC VIOLENCE  AND                 
  SEXUAL ASSAULT  testified in support of CSSB  13(JUD) am (ct                 
  rule fld).   She  stressed the  impacts of  DNA testing  and                 
  evidence presentations on sexual assault victims.  She noted                 
  that sexual assault  is one of  the lowest reported  crimes.                 
  She  estimated  that  only  5  -  25 percent  of  cases  are                 
  reported.  She stressed the difficulty in proving cases.  In                 
  many cases the  only evidence is  the victim's word  against                 
  the  offender's.    Victims  feel  victimized by  the  court                 
  process.    She  emphasized  that  DNA testing  provides  an                 
  additional  element   of  physical  evidence  that   is  not                 
  currently available.   She observed  that there is  a higher                 
  rate  of  conviction  with DNA  evidence  in  sexual assault                 
  cases.  She  suggested that  DNA evidence will  result in  a                 
  higher reporting rate of sexual assault cases.                               
                                                                               
  Representative Therriault MOVED  to adopt Amendment 1.   Mr.                 
  Guaneli  observed  that the  amendment  would make  the bill                 
  identical to HB 52.  He stated that the amendment will place                 
  the test  in  statute rather  than in  the court  rule.   He                 
  maintained that adoption  of the amendment will  support the                 
  argument that  the court should  accept the change  based on                 
  the statutory directive.                                                     
                                                                               
  Senator Leman added that the  amendment removes the findings                 
  section.  He  stressed that  no statement is  being made  in                 
  regards to the validity of the  findings.  The references to                 
  discovery were also removed since they are  already found in                 
  court rules.                                                                 
                                                                               
  There being NO OBJECTION, Amendment 1 was adopted.                           
  Representative Martin MOVED to report HCS  CSSB 13 (FIN) out                 
                                                                               
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  of Committee  with individual  recommendations and with  the                 
  accompanying fiscal notes.  There being NO OBJECTION, it was                 
  so ordered.                                                                  
                                                                               
  HCS  CSSB 13 (FIN) was reported out  of Committee with a "do                 
  pass" recommendation and with four  zero fiscal notes by the                 
  Department  of  Law,  dated  2/9/95;  Department  of  Public                 
  Safety, dated 2/9/95; the  Department of Corrections,  dated                 
  2/9/95; and the Department of Administration.                                
  ADJOURNMENT                                                                  
                                                                               
  The meeting adjourned at 5:26 p.m.                                           
                                                                               
                                                                               
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