Legislature(1993 - 1994)
01/27/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE January 27, 1993 1:00 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice Chair Rep. Pete Kott Rep. Gail Phillips Rep. Joe Green Rep. Cliff Davidson Rep. Jim Nordlund MEMBERS ABSENT None OTHER REPRESENTATIVE PRESENT Rep. Bill Williams COMMITTEE CALENDAR Organizational Meeting Continuation of Committee Business Overview - Alaska Court System Overview - Department of Law WITNESS REGISTER CHRIS CHRISTENSEN Staff Counsel Alaska Court System 303 K Street Anchorage, AK 99501 Phone: 264-8228 Position Statement: Gave overview of Alaska Court System CHARLIE COLE Attorney General Department of Law P. O. Box K Juneau, AK 99811-0300 Phone: 465-3600 Position Statement: Gave overview of the Department of Law BRUCE BOTELHO Deputy Attorney General Department of Law P. O. Box K Juneau, AK 99811-0300 Phone: 465-3600 Position Statement: Gave overview of the Civil Division DEAN GUANELI Assistant Attorney General and Criminal Division Administrator Department of Law P. O. Box K Juneau, AK 99811-0300 Phone: 465-3428 Position Statement: Gave overview of the Criminal Division GAYLE HORETSKI Committee Counsel House Judiciary Committee Room 120, Capitol Building Juneau, AK 99801-1182 Phone: 465-4990 Position Statement: Answered committee questions ACTION NARRATIVE TAPE 93-2, SIDE A Number 000 The second meeting of the House Judiciary Committee was called to order at 1:10 p.m. on January 27, 1993. A quorum was present. Number 036 CHRIS CHRISTENSEN, STAFF COUNSEL TO THE ALASKA COURT SYSTEM, gave an overview of the judicial branch of government. He explained that the judicial branch is comprised of three separate agencies: the Alaska Judicial Council, the Commission on Judicial Conduct, and the Alaska Court System. He explained that Alaska, unlike most other states, has a unified court system. Cities and boroughs prosecute their own laws in state court. Mr. Christensen told the committee that there are four levels of court in the Alaska Court System: the Supreme Court, the Court of Appeals, the Superior Court, and the District Court. He went on to explain the function of each type of court. Number 184 MR. CHRISTENSEN next outlined the composition and role of the Alaska Judicial Council. The Council has three main purposes, he said. They solicit, screen and nominate applicants for vacant judicial positions. They conduct studies for the improvement of the administration of justice. Third, they evaluate all judges who run for retention. Number 200 MR. CHRISTENSEN explained how judges are appointed in Alaska. Qualified persons submit applications to fill vacant positions. Then, the Judicial Council evaluates the applicants. After evaluating the applicants, the Council submits a list of names to the governor; the governor then appoints one of those people to the bench. Judges may serve until the age of 70, barring misconduct in office. However, judges periodically come up for a retention vote by the public. The Judicial Council reviews each judge as she or he comes up for retention and makes a recommendation to the voters of the state. Number 249 MR. CHRISTENSEN explained that the third agency in the judicial branch of government is the Commission on Judicial Conduct. He explained the composition of the panel and its function, which is to investigate complaints of ethical misconduct against judges or justices. MR. CHRISTENSEN explained that the judicial branch of government is, like the legislature, just a tiny part of state government, with just about 2-3 percent of state employees and 1.2 percent of the state budget. He asked committee members if they had any questions for him. Number 284 REP. PHILLIPS asked if there had ever been an attempt to amend the constitution so as to remove the executive branch of government from the process of appointing judges. Number 288 MR. CHRISTENSEN said that he could not recall such an attempt. In fact, he had heard of the opposite happening. Some people would like to give the governor sole authority to appoint judges. Number 298 CHAIRMAN PORTER asked Mr. Christensen to outline what happens to a defendant, from the point of arrest, as he or she makes her or his way through the court system. Number 309 MR. CHRISTENSEN explained the process to the committee. After an arrest is made or an indictment issued, the defendant appears before a judge and is formally charged with a crime. The judge then decides whether to keep the defendant in jail or to let the defendant out on bail. The defendant would be given the opportunity to speak with a lawyer; if the defendant could not afford a lawyer, one from the public defender's office or the office of public advocacy would be appointed to the case. The defendant would next enter a plea. Under Alaska law, a defendant is entitled to a trial within 120 days after being charged with a crime. At a trial, a defendant is either convicted or set free. If convicted, a pre-sentencing report is written on a criminal. In the report is a recommendation to the judge on what the sentence should be. Then, a sentencing hearing occurs, in which a judge imposes a sentence. Frequently, a defendant will appeal; a court of appeals then makes a final decision on whether the initial conviction and sentencing were appropriate. This marks the end of a person's journey through the court system. (CHAIRMAN PORTER acknowledged the presence of Representatives Green, Davidson, and Williams.) Number 407 REP. PHILLIPS asked about the court system's backlog of cases and a defendant's right to not be tried because of the unavailability of a speedy trial. Number 418 MR. CHRISTENSEN said that because of the "120-day rule" criminal cases are not delayed during times of heavy caseloads. Civil cases are the ones that get put on the back burner. If the state is not able to try a person within 120 days, and the defendant demands to be tried within that period of time, the case must be dismissed. REP. PHILLIPS asked if because of this backlog in cases, combined with budget cuts, the state was looking at invoking a fine system for non-violent crimes. Number 467 MR. CHRISTENSEN said that a bail schedule was already in place for minor fish and game violations and traffic violations. That is a simple system to impose when there is no jail sentence possible as a result of the crime or violation. However, in the case of a misdemeanor or felony case where there is a possibility of a jail sentence, the legislature would have to determine whether, as a matter of policy, it was appropriate to impose fines in lieu of a jail sentence. The court system is currently studying a system in place in Scandinavian countries and in a few counties in the United States called "day fines." Fines in the United States are valued so that poor members of society can afford to pay them. Under the day fine system, a fine is based on the defendant's income level. As a result, higher income defendants would pay more than their lower income counterparts. Number 508 REP. GREEN asked about the court system's ability to rearrange its case load in the event of a backlog so that cases could be heard according to seriousness, instead of just on a chronological basis. Number 513 MR. CHRISTENSEN said that cases must be heard within 120 days, but the order in which cases are heard is subject to discretion. Number 518 CHAIRMAN PORTER asked Mr. Christensen about judge's discretion when imposing sentences. Number 525 MR. CHRISTENSEN said that the legislature has traditionally set maximum sentences for certain crimes, but the exact terms of sentence were left to the judge's discretion. Later, the legislature set up a system of presumptive sentencing, which applied to certain felonies and which limits a judge's discretion when imposing a sentence. The down-side to presumptive sentencing is that defendants subject to presumptive sentencing tend to plead innocent, because they know what sentence they will get if they plead guilty. Number 570 REP. NORDLUND asked if the court system had taken, or would take if asked, a position on presumptive sentencing. MR. CHRISTENSEN said that the court system generally did not take a position on bills, except if those bills would directly affect its internal operations. REP. KOTT inquired about the impact of plea bargaining. MR. CHRISTENSEN said that for years plea bargaining was prohibited, but he believed it was back, in some form. He encouraged Rep. Kott to direct this question to the attorney general's office. Number 595 CHAIRMAN PORTER welcomed Attorney General Charlie Cole to the committee and asked him to address the members. Number 598 CHARLIE COLE, ATTORNEY GENERAL FOR THE STATE OF ALASKA, explained that the Department of Law was divided into two divisions -- a Criminal Division and a Civil Division. The Civil Division has headquarters in Juneau, Anchorage, and Fairbanks. He outlined significant activities of the Civil Division, including vigorous prosecution of tax assessments against "Big Oil." He described the present harmonious working relationship between the Department of Law and the Department of Revenue on this issue, which is a positive change from their associations in some past years. He noted that his Department has largely wound up the royalty settlements, but they still need to work on phase II of the Amerada Hess litigation. He expressed his opinion that the Department of Revenue needs more auditors on staff in order to continue pursuing collection of oil company tax assessments. Number 713 ATTORNEY GENERAL COLE said that his Department is continuing to litigate against the federal government over the oil export ban, which is terribly costly to Alaska and other states. He mentioned that the Department is also working to acquire title to the lands beneath the navigable waters in the state. He noted the state's weak position in terms of the numbers of lawyers that the state can put on a case against "Big Oil," compared with several times that number of lawyers that the industry assigns to the case. He said the Civil Division is getting lawyers of increasingly high quality, but there is a need to hire more natural resources lawyers. Number 783 ATTORNEY GENERAL COLE went on to discuss the Department of Law's Criminal Division, which was impacted by a severe budget cut last year. More money given to the state troopers results in more cases for the Criminal Division, he said. He added that it is unfair to the police officers and state troopers who make arrests to not see those cases brought to trial due to budget cuts in the Department of Law. TAPE 93-2, SIDE B Number 000 ATTORNEY GENERAL COLE asserted that all criminal cases ought to be prosecuted. It is painful, he said, to have to say "we don't have the staff." REP. PHILLIPS asked Mr. Cole about the use of contracting out audits as a cost-saving measure. ATTORNEY GENERAL COLE said that he deferred that decision to Commissioner Rexwinkel. ATTORNEY GENERAL COLE reiterated his goal of winding up the tax cases. Some of them go back to the late 1970s, he said, and remain unresolved. Number 060 CHAIRMAN PORTER asked Mr. Cole if the proceeds of those tax cases were still in the hands of the oil companies. Number 065 ATTORNEY GENERAL COLE replied that the oil companies were holding the proceeds. He noted that two years ago the state imposed compound interest on the oil companies. Number 084 CHAIRMAN PORTER asked Attorney General Cole if he would characterize the situation as one which had no definition in the past, but now had definition in terms of what bills the state was sending out. Number 090 ATTORNEY GENERAL COLE said that he did not find fault with what had occurred in the past. He acknowledged the work of his predecessors, and said that it might be that these cases were now coming to fruition by virtue of work which had been done in the past. He commented that they had been able to work out agreements that value the oil in the future, which should lessen future valuation disputes. Number 120 REP. PHILLIPS complimented the work by the Hickel administration on settling the royalty payment issues. Number 129 ATTORNEY GENERAL COLE stated that it was gratifying to make these settlements without the legislature questioning the process or the result. Number 158 BRUCE BOTELHO, DEPUTY ATTORNEY GENERAL, commented that the poor relationship between the Department of Law and the Department of Revenue in the past was a major bottleneck in the ability to make collections. Number 193 MR. BOTELHO said that the Department of Law employed nearly 200 lawyers, funded in a variety of ways and working out of Juneau, Fairbanks, Anchorage, Ketchikan, Nome, and Kenai. The offices provide legal services to all three branches of state government. Number 230 MR. BOTELHO stated that a large amount of the Department's case load involves drafting legal opinions, regulation drafting and review, and legislative drafting and review. Number 245 MR. BOTELHO outlined the various sections of the Department's Civil Division, including the Commercial Section and the Governmental Affairs Section. Number 276 REP. PHILLIPS asked Mr. Botelho about the process of regulation review. Number 280 MR. BOTELHO described the procedure by which a state agency would change its regulations. He then continued his review of the Civil Division's sections, including the Transportation Section, the Oil, Gas, and Mining Section, the Human Services Section, the Natural Resources Section, and the Special Litigation Section, the Medicaid Provider Fraud Section, the Welfare Fraud Section, the Fair Business Practices Section, and the Environmental Section. Number 404 MR. BOTELHO provided committee members with a written summary of major, ongoing litigation in each section of the Civil Division. Number 418 CHAIRMAN PORTER asked committee members if they had any questions. Number 419 REP. GREEN asked Mr. Botelho if the Department of Law's contract attorneys worked for a fixed fee or for a percentage of the litigation's gain. Number 432 MR. BOTELHO replied that the attorneys worked for a fixed fee. He noted that they are currently experimenting with a contingent-fee arrangement in an anti-trust suit. Number 444 REP. PHILLIPS asked Mr. Botelho if the cost for the lawyers assigned to particular state agencies were borne by the Department of Law or by the department for which the work was being done. Number 451 MR. BOTELHO explained the funding structure of the Department of Law. He said funding for about 40 percent of the Civil Division attorneys comes from other state departments. Number 500 CHAIRMAN PORTER reiterated and asked for clarification of Mr. Botelho's statement. Number 510 MR. BOTELHO said that most of the attorneys are funded by the general fund, some through the Department of Law, and some through other state departments. He stated that since 1987, the Department of Law has lost seven natural resources general attorneys, although it has tried to make up for that through funding from other departments. The irony, he said, was that while cutting back on natural resource attorneys, the state has undertaken major initiatives to litigate against the federal government and has been sued. For that reason, the governor has agreed to request seven additional positions, five of which would be dedicated to natural resource litigation. Number 532 REP. DAVIDSON requested a written report on the increased positions and how they would fit into the Department of Law's expanded litigation program. MR. BOTELHO indicated that a report would be forthcoming. Number 537 REP. GREEN asked Mr. Botelho about the flexibility of attorneys within the Department of Law to work on issues outside their areas of expertise, should the need arise. Number 547 MR. BOTELHO commented that the Department's ability to be flexible has been steadily diminishing over the years, but other state agencies have been helpful in providing funding to try to minimize that. Number 563 MR. BOTELHO cited the reapportionment case as an example of the problems associated with the Department's decreased ability to be flexible. Number 577 CHAIRMAN PORTER, hearing no further questions for Mr. Botelho from the committee, called Mr. Dean Guaneli of the Department of Law's Criminal Division, to address the committee. Number 581 DEAN GUANELI, ASSISTANT ATTORNEY GENERAL AND CRIMINAL DIVISION ADMINISTRATOR, stated that the Criminal Division prosecutes most violations of state criminal law. The Division has offices in 13 locations around the state. Additionally, Division staff regularly travel to outlying areas to handle court calendars there. Division staff are spread very thin, he added. He said the Division was simply unable to prosecute every violation of state law. Number 600 MR. GUANELI stated that this inability stemmed from many sources, including lack of evidence and the expense of bringing witnesses back to Alaska from other states. The Division, under the law, has broad discretion to choose which cases it prosecutes and which it does not, he added. Number 624 REP. DAVIDSON inquired about the average cost of prosecution. Number 630 MR. GUANELI said that it was difficult to quantify the cost of prosecution, due to the varieties of crime. He said his Division handles felonies, misdemeanors and regulatory offenses that range from speeding tickets to some commercial fishing violations. Number 647 REP. DAVIDSON asked Mr. Guaneli how many new positions the Division was asking for. Number 649 MR. GUANELI said the Division was not asking for any increase in positions and would likely lay off some of its staff. Number 653 REP. DAVIDSON asked how many additional positions the Civil Division was requesting. MR. BOTELHO responded that they were requesting seven additional positions. REP. DAVIDSON asked what effect seven additional positions would have on the Criminal Division's workload. Number 655 MR. GUANELI said that it would help the Division immeasurably. However, he noted that in the past the Civil Division has taken a substantially larger number of budget cuts than the Criminal Division had. He added that he felt it was the Civil Division's turn to "catch up" on funding. TAPE 93-3, SIDE A Number 015 REP. JAMES asked if there was a method by which the Criminal Division determined which infractions would be prosecuted. Number 032 MR. GUANELI said the Division tried to assess cases as they received them and determine how important it was to prosecute that particular case, compared to other cases received by the Division. He cited bootlegging cases as an example of some cases being taken more seriously in certain regions of the state. Number 116 REP. JAMES mentioned that it seemed that the Division handled each case it received, but did not necessarily bring each case to trial. Number 120 MR. GUANELI responded that some cases were prosecuted to the full extent of the law, others were prosecuted to a lesser extent, and a large number of cases were simply not prosecuted. Number 127 CHAIRMAN PORTER asked Mr. Guaneli about the current policy on plea bargaining. Number 133 MR. GUANELI said that plea bargaining was widely condemned for a number of years, because it took the judge and jury out of the decision making process. The practice that was condemned the most, he said, was the prosecuting attorney and the defense attorney agreeing on a sentence. Currently, that practice is prohibited, except in rare circumstances. Under the presumptive sentencing system, there are some statutory limits to a judge's sentencing discretion, he added. Number 150 MR. GUANELI estimated that at least 90 percent of the Criminal Division's cases were disposed of in some manner, through a plea change from not guilty to guilty. Therefore, the cases that go to trial are the last 8-10 percent of the cases that get prosecuted, he said. Those cases are ones in which the defendant refused to enter into any kind of negotiated agreement, or the Division feels that it would be irresponsible to agree to the settlement that the defense wants. Number 199 REP. GREEN inquired about the length of time Criminal Division staff remain in jobs located in rural areas of Alaska. Number 222 MR. GUANELI indicated that it was difficult to keep personnel in rural areas long enough so that they gained experience with the community, but not so long that they become jaded about the criminal justice system. The Division's experience is that they can expect a two-year commitment from rural staff. He added that they are now asking applicants to give a commitment to remain in the rural area for at least two years. He spoke of high travel costs to outlying areas of the state, not just for a judge, but also for police officers and witnesses. Number 272 CHAIRMAN PORTER called committee members' attention to the committee schedule for the rest of the current week and for the following week. He then asked Gayle Horetski, Committee Counsel, to address the committee on bills that had been, or would be referred to the Judiciary Committee. Number 328 MS. GAYLE HORETSKI stated that many bills have Judiciary Committee referrals, but most must go to another committee first. However, four bills have received a Judiciary Committee referral as their first committee of referral. Two of those, she said, had been scheduled for the following week: HB 90, the 1992 revisor's bill and HB 58, relating to the budget reserve fund. She briefly described each of those bills. MS. HORETSKI described the other two bills currently in committee. House Bill 64, sponsored by Rep. Toohey, relates to stalking. A sponsor substitute may be introduced, she said. House Bill 86, relating to property-related offenses by juveniles, and sponsored by Rep. Bunde, was recently received, she added. Number 377 REP. PHILLIPS asked when bill packets would be available to committee members. Number 380 CHAIRMAN PORTER replied that bill packets would be prepared at least 24 hours prior to committee meetings and members were responsible for obtaining them from the committee room. Number 390 CHAIRMAN PORTER commented that the three bills that the Court System had requested that the committee introduced on its behalf would indeed be introduced, barring any strong objections from the committee. ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 2:50 p.m.
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