Legislature(1997 - 1998)

01/22/1997 01:00 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        January 22, 1997                                       
                           1:00 p.m.                                           
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Joe Green, Chairman                                            
 Representative Con Bunde, Vice Chairman                                       
 Representative Brian Porter                                                   
 Representative Norman Rokeberg                                                
 Representative Eric Croft                                                     
 Representative Ethan Berkowitz                                                
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 Representative Jeannette James                                                
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 OVERVIEW:  Alaska State Department of Law                                     
 OVERVIEW:  Alaska State Court System                                          
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 No previous action to record                                                  
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 BRUCE BOTELHO, Attorney General                                               
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
 Telephone:  (907)465-3600                                                     
                                                                               
 CYNTHIA HORA, Deputy Attorney General                                         
 Office of Special Prosecutions and Appeals                                    
 Department of Law                                                             
 310 K Street, Suite 308                                                       
 Anchorage, AK  99501-2064                                                     
 Telephone:  (907)269-6250                                                     
                                                                               
 CHARLES, "Chris", CHRISTENSEN, Staff Counsel                                  
 Alaska Court System                                                           
 820 4th Avenue                                                                
 Anchorage, AK 99501                                                           
 Telephone:  (907)264-8228                                                     
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 97-1, SIDE A                                                             
 Number 000                                                                    
                                                                               
 The House Judiciary Standing Committee was called to order by                 
 Chairman Joe Green at 1:00 p.m.  Members present at the call to               
 order were Vice-Chair Con Bunde, Representative Brian Porter,                 
 Representative Norman Rokeberg, Representative Eric Croft,                    
 Representative Ethan Berkowitz and Chairman Joe Green.                        
 Representative Jeannette James was excused.                                   
                                                                               
 CHAIRMAN JOE GREEN provided organizational guidelines and committee           
 procedures which should be adhered to by committee members for                
 meeting purposes.                                                             
                                                                               
 Number 325                                                                    
                                                                               
 OVERVIEW OF THE ALASKA STATE DEPARTMENT OF LAW:                             
                                                                               
 CHAIRMAN GREEN asked that Bruce Botelho, Attorney General,                    
 Department of Law, provide an overview of the responsibilities and            
 obligations of the Department of Law.                                         
                                                                               
 BRUCE BOTELHO, Attorney General, Department of Law, introduced                
 major management staff of the department.  Cynthia Hora had been              
 appointed Assistant Attorney General for the criminal division.               
 Ms. Hora previously served for six years as head of the                       
 department's Special Prosecution and Appeals Division.  Barbara               
 Ritchie serves as the deputy attorney general for the civil                   
 division and Fred Fisher serves as the new director for the                   
 Administrative Services Division.  Also in attendance from the                
 Department of Law were Anne Carpeneti, Assistant Attorney General,            
 who serves as the department's lead legislative liaison                       
 on criminal matters and Chrystal Smith, Legal Administrator and               
 serves as the primary legislative liaison relating to civil                   
 division matters.   Joan Kasson primarily tracks the department's             
 oil and gas activities.  Her primary role had been monitoring                 
 expenditures by outside counsel and cost control mechanisms the               
 department felt should be in place because of the amounts of money            
 the department necessarily expends.                                           
                                                                               
 Number 478                                                                    
                                                                               
 ATTORNEY GENERAL BRUCE BOTELHO advised members the department was             
 organized in three divisions; Administrative Services Division,               
 Civil Division and the Criminal Division.  He pointed out that the            
 criminal division was responsible for the prosecution of criminal             
 cases and provides legal services for the Department of Public                
 Safety and the Department of Corrections.                                     
                                                                               
 ATTORNEY GENERAL BOTELHO explained that the department had                    
 developed a practice in the criminal division of having all appeals           
 coming from the various district attorneys offices around the state           
 managed in one central location with people who specialize in                 
 appellate practice.                                                           
                                                                               
 ATTORNEY GENERAL BOTELHO advised members that the department had              
 reorganized this year by moving two units relating to white collar            
 and environmental issues, previously within the civil division,               
 into the Office of Special Prosecutions and Appeals (OSPA), where             
 they would be subject to the same kind of screening procedures that           
 other criminal cases require.  That arrangement was accepted by the           
 federal government.  Another change that had taken place within the           
 department's organizational chart from last year was the funding of           
 a full-time district attorney in Dillingham, Alaska which had                 
 proven quite successful.                                                      
                                                                               
 Number 670                                                                    
                                                                               
 ATTORNEY GENERAL BOTELHO explained that the department's civil                
 divisions were located primarily in Anchorage and Juneau, with a              
 third office located in Fairbanks, Alaska.  The Human Services                
 Division was responsible for children's proceedings, services to              
 the Department of Labor and Education and also the unit responsible           
 for prosecuting juvenile delinquency cases.  Attorney General                 
 Botelho advised members that had been area the department had been            
 concerned about because of under-staffing and were considering                
 shifting that responsibility to the criminal division.  He                    
 expressed the department's eagerness in working with the committee            
 on youth and justice legislation which would impact that section              
 and how the state dealt with youth crime.                                     
                                                                               
 Number 760                                                                    
                                                                               
 ATTORNEY GENERAL BOTELHO advised members that the Environmental Law           
 Section dealt with environmental enforcement and defense issues, as           
 well as monitoring the Exxon-Valdez litigation and providing                  
 support to the Exxon-Valdez Trustee Council.                                  
                                                                               
 ATTORNEY GENERAL BOTELHO noted that the Oil, Gas and Mining Section           
 dealt with taxes, royalties and the statehood compact.  He                    
 referenced the Dinkum Sands Case, United States v. State of Alaska,         
 which was scheduled to be argued in front of the U.S. Supreme Court           
 on February 24, 1997.  Currently, $1.4 billion is held in the U.S.            
 Treasury pending the outcome of that case.  A special master, who             
 was appointed approximately 17 years ago, had rendered his opinion            
 last year and most of those funds, based on his report to the                 
 Supreme Court, would flow to the U.S. Treasury and not to the state           
 of Alaska.  Attorney General Botelho noted that under that decision           
 it was recognized that the Alaska National Wildlife Refuge (ANWR),            
 would belong to the state of Alaska, not the federal government.              
                                                                               
 Number 880                                                                    
                                                                               
 ATTORNEY GENERAL BOTELHO advised members that the Collections and             
 Support Section was fairly new to the department.  He explained the           
 reason for that was to consolidate the department's expertise in              
 two areas; child support enforcement and collection of debts, fines           
 and judgments owed the state.  Attorney General Botelho estimated             
 that the department had generated approximately $2.3 million in               
 recovery of fines that the court system had been otherwise unable             
 to collect.                                                                   
                                                                               
 Number 935                                                                    
                                                                               
 ATTORNEY GENERAL BOTELHO went on to state that the Governmental               
 Affairs Section provided legal services to the Department of                  
 Administration, the Governor and Lt. Governor.  The Legislation and           
 Regulations Section screens all the Governor's legislation and also           
 reviews all regulations.  Attorney General Botelho advised members            
 that there was a statute which requires the regulations attorney to           
 approve all regulations prior to becoming final.  He noted that               
 that had been an area of concern for the Department of Law.  Over             
 the past two years the department had had two management reviews,             
 conducted at their request, by the Conference of Western Attorneys            
 General.  Attorney General Botelho pointed out that one of the                
 major frustrations they found among the department's client                   
 agencies, as well as legislators, was the delay in the department's           
 ability to move regulations through the process.  He noted that               
 they had had an ongoing multi-agency task force that was                      
 formulating recommendations for the department to re-think how the            
 department reviews regulations.  One of the outcomes of that task             
 force involved a legislative proposal to attempt to streamline                
 advertising and notice requirements.                                          
                                                                               
 Number 980                                                                    
                                                                               
 ATTORNEY GENERAL BOTELHO continued noting that the Fair Business              
 Practices Section dealt with regulatory policing of the public                
 utilities commission and occupational licensing.  He noted that               
 there were numerous boards where disciplinary action had been                 
 required.  Also, the department has had the Consumer Protection               
 Section included in the Fair Business Practices Section, although             
 it was funded as a separate subunit.                                          
                                                                               
 ATTORNEY GENERAL BOTELHO advised members that the Natural Resources           
 Section had three dramatic responsibilities which consisted of land           
 and fish and game management issues statewide.                                
                                                                               
 The Statehood Defense Unit, which was created through the budget              
 process the previous legislative session, dealt with how the                  
 department deals with RS-2477, navigability and endangered species,           
 and also the entire range of issues that pertain to Native                    
 sovereignty and other Alaska National Interest Lands Conservation             
 Act (ANILCA), types of challenges.  Attorney General Botelho noted            
 that there was one other statehood defense issue which was the                
 Statehood Compact case.  He advised members that the department had           
 completed its briefing on appeal to the U.S. Court of Appeals;                
 however, the federal government had recently requested an extension           
 of time to file their brief.                                                  
 Number 1105                                                                   
                                                                               
 ATTORNEY GENERAL BOTELHO informed members that the mental health              
 lands case was scheduled to be argued in front of the supreme court           
 in Anchorage on February 10, 1997.  It was his hope that case would           
 be brought to a successful conclusion, although the department                
 anticipated that the state would see further attempt to have the              
 case taken to the U.S. Supreme Court because of federal law issues            
 involved.                                                                     
                                                                               
 Number 1150                                                                   
                                                                               
 ATTORNEY GENERAL BOTELHO conveyed some of the management                      
 improvements which the department had undertaken.  He noted that              
 one of the concerns of Legislative Audit in the past was the                  
 department's time-keeping methodology.  For the past ten months,              
 the department had been utilizing a universal time-keeping system             
 for all civil division lawyers which would enable the department to           
 report to the legislature exactly how the lawyers were spending               
 their time and the state's money.  Attorney General Botelho noted             
 that that had also allowed the department to set uniform rates on             
 how much is charged state agencies for attorney services.                     
                                                                               
 ATTORNEY GENERAL BOTELHO referenced the department's monthly and              
 periodic reports relating to significant litigation, and hoped                
 those were helpful to members of the legislature.  He advised                 
 members that the department had been emphasizing the importance of            
 the Department of Law being one department; not as a criminal                 
 division and a civil division.  Attorney General Botelho explained            
 that management had been focusing on cross training opportunities,            
 joint management and trying to create a culture of professionalism            
 that allows a person to identify himself or herself as a state                
 lawyer rather than a criminal division employee or civil division             
 employee.                                                                     
                                                                               
 Number 1300                                                                   
                                                                               
 ATTORNEY GENERAL BOTELHO addressed some of the department's most              
 important policy issues they were currently facing.  With respect             
 to the Venetie case, Attorney General Botelho advised members that            
 the 9th Circuit Court of Appeals refused the state's request for              
 rehearing.  Currently, the department was preparing to take a                 
 petition for certiorari to the U.S. Supreme Court, adding that the            
 department had 90 days from the actual decision to do so.  Attorney           
 General Botelho stated that in the mean time, they had negotiated             
 with the plaintiffs and the Native American Rights Fund, a stay of            
 the 9th Circuit decision, pending a decision by the U.S. Supreme              
 Court.  He explained that the 9th Circuit was not bound by that               
 stipulation, that the department would have to receive permission             
 by the court to actually have the order entered.                              
                                                                               
 ATTORNEY GENERAL BOTELHO advised members that over the last ten               
 days, the department had been actively reviewing resumes of law               
 firms and individual counsel who specialize in U.S. Supreme Court             
 practice in Washington, D.C.  One law firm, and individual in                 
 particular, had been considered and Governor Knowles was expected             
 to meet with the leadership that afternoon to discuss that law                
 firm.  Attorney General Botelho explained that the law firm chosen            
 would assist the department in doing the extra legal work of                  
 attempting to push the federal government in a particular                     
 direction, and not to get them to actively oppose the state's                 
 efforts.  That outside counsel would also focus on preparing the              
 state's petition for review.                                                  
                                                                               
 ATTORNEY GENERAL BOTELHO felt it was important for the committee to           
 know that there were between 7,000 and 7,500 requests made to the             
 court each year for petitions, and in the past several years had              
 only granted between 90 and 100.  The department's goal, and what             
 was necessary to achieve, was to make the case so persuasive,                 
 because of its importance and impact, that it would be worth one of           
 the 90 cases the court would consider.                                        
                                                                               
 Number 1445                                                                   
                                                                               
 ATTORNEY GENERAL BOTELHO advised members, with respect to tidelands           
 issues and litigation, that the 11th Amendment states that a                  
 federal court does not have jurisdiction to hear a case where a               
 state had not given consent to be sued.  He went on to say that a             
 state was only permitted to waive that suit if there had been an              
 Act by the legislature that would provide an unequivocal indication           
 that such waiver had taken place.  There had been two cases in the            
 U.S. District Court in Anchorage where the court had thrown out a             
 case because the state was an indispensable party but could not be            
 joined because there was no finding of an express waiver.  Attorney           
 General Botelho explained that he did not, on his own, have                   
 authority to waive the state's protection against suit.  This was             
 particularly important at the present time in the case involving              
 Peratrovich [Ph] v. United States, which was a fish and game issue          
 dealing with the ANILCA.  Attorney General Botelho advised members            
 that the state of Alaska claimed that the federal government did              
 not have jurisdiction or title to waters in Southeast Alaska; those           
 are waters of the state and not the federal government.  He                   
 explained that the only way the state could get into the suit was             
 to be a defendant.                                                            
                                                                               
 Number 1585                                                                   
                                                                               
 ATTORNEY GENERAL BOTELHO advised members that as a consequence of             
 that situation, the department would be asking the committee to               
 consider legislation that would grant authority, in discrete cases,           
 for the attorney general to waive sovereign immunity for the                  
 purpose of protecting the state's interests in a better way.                  
                                                                               
 Number 1620                                                                   
 REPRESENTATIVE BRIAN PORTER asked if a waiver were granted, through           
 resolution by the legislature, if it would affect only the three              
 respective cases.  Attorney General Botelho did not know whether a            
 resolution would be the appropriate tool, or if it would actually             
 require a formal act in the form of legislation.  He felt that it             
 would require legislation.  Attorney General Botelho advised                  
 members that the department was specifically looking at a waiver              
 that dealt with submerged lands only.                                         
                                                                               
 ATTORNEY GENERAL BOTELHO pointed out that the legislature had                 
 recently changed Criminal Rule 16 to require reciprocal discovery.            
 He explained that the state has the burden to produce evidence to             
 the other side, and that burden would also apply to the defendant.            
 Attorney General Botelho advised members the matter had been                  
 challenged several times and asked that Deputy Attorney General,              
 Cynthia Hora, update the committee on the status of that                      
 litigation.                                                                   
                                                                               
 Number 1830                                                                   
                                                                               
 CYNTHIA HORA, Deputy Attorney General, Office of Special                      
 Prosecutions and Appeals, Department of Law, advised members that             
 the division waited for a serious felony case in which to litigate            
 the issue.  The case chosen was State of Alaska v. David                     
 Summerville [Ph], who had been charged with a number of counts of            
 sexual assault in Fairbanks, Alaska.  In accordance with Criminal             
 Rule 16, the department provided discovery and then made the                  
 request for discovery from the defense.  The defense objected and             
 moved to quash the request by alleging that Criminal Rule 16 was              
 unconstitutional.  The state then filed in opposition and Judge               
 Savell ruled that Criminal Rule 16 was unconstitutional under the             
 1974 Alaska Supreme Court decision, Scott v. State of Alaska.               
                                                                               
 DEPUTY ATTORNEY GENERAL HORA informed members they then filed a               
 Petition for Review with the Alaska Court of Appeals, asking them             
 to review the case.  The court of appeals refused, noting that they           
 were bound by Scott v. State of Alaska, and would affirm the                
 criminal rule as unconstitutional.  At that point, a petition for             
 hearing was filed in the Alaska Supreme Court asking for                      
 discretionary review.  That request was granted in late December              
 1996, with four members of the court voting to take the petition              
 and one member dissenting.  Deputy Attorney General Hora advised              
 members that the brief, which could be up to 50 pages, was                    
 currently being drafted by an attorney in the Office of Special               
 Prosecutions and Appeals.  Deputy Attorney General Hora pointed out           
 that the Alaska Supreme Court had also asked the Public Defenders             
 Agency and Office of Public Advocacy to file amicus briefs.                   
                                                                               
 Number 1930                                                                   
                                                                               
 REPRESENTATIVE PORTER asked who the dissenting judge was.  Deputy             
 Attorney General Hora responded that it was Judge Rabinowitz.                 
 REPRESENTATIVE BERKOWITZ asked what the gist of Scott v. State was.         
                                                                               
 DEPUTY ATTORNEY GENERAL HORA explained that requiring a criminal              
 defendant to release, or disclose the names of alibi witnesses and            
 their statements, violated the privilege against self incrimination           
 as set forth in the Alaska Constitution.  She pointed out that the            
 department's argument to the Alaska Supreme Court was that the                
 privilege should be personal to the defendant, which was one issue            
 that had not been addressed in Scott v. State.  The state was               
 asking that the court rule that disclosure of anything, other than            
 statements by the defendant, not be privileged because it was not             
 personal to the individual.                                                   
                                                                               
 Number 1990                                                                   
                                                                               
 ATTORNEY GENERAL BOTELHO advised members another major concern of             
 the department's criminal division involved two recent decisions              
 which dealt with the right to jury trial.                                     
                                                                               
 Number 2008                                                                   
                                                                               
 DEPUTY ATTORNEY GENERAL HORA advised members that the first case              
 was State of Alaska v. District Court which involved the minor              
 consuming alcohol statute.  The current statutory scheme provides             
 that 13- to 17-year-olds cited for minor consuming would involve an           
 administrative revocation of the minor's license, and a citation is           
 issued which brings the case into the court system.  Deputy                   
 Attorney General Hora advised members that the Alaska Supreme                 
 Court, in the case Baker v. City of Fairbanks ruled that if a               
 person lost a valuable license in a court proceeding, the                     
 individual would be entitled to a jury trial.  Deputy Attorney                
 General Hora advised members that the state then filed an original            
 application asking the court of appeals to declare that jury trials           
 would not be required in those types of cases.  She noted that the            
 court relied on Baker v. City of Fairbanks, and ruled that those            
 individuals would be entitled to a jury trial and court appointed             
 counsel.                                                                      
                                                                               
 DEPUTY ATTORNEY GENERAL HORA explained that there was language in             
 the decision that indicated that the courts would uphold the                  
 administrative drivers license revocation and no jury trial would             
 be required in the administrative context.  She advised members               
 that the statute provides that a court ordered revocation would run           
 concurrent with the administrative revocation and the department's            
 recommendation would be to remove the court ordered revocation and            
 maintain the administrative revocation of the minor's drivers                 
 license.                                                                      
                                                                               
 Number 2106                                                                   
                                                                               
 DEPUTY ATTORNEY GENERAL HORA continued pointing out that the second           
 and more troubling case was one that came out on December 27, 1997            
 called State of Alaska v. Dutch Harbor Seafoods.  That case                 
 involved a commercial fishing violation which the law terms as                
 violations.  A first offense would be punishable by a $3,000 fine,            
 and a second offense would impose a fine in the amount of $6,000.             
 If the person was found to have committed the violation, the court            
 would order the forfeiture of the illegal catch.                              
                                                                               
 DEPUTY ATTORNEY GENERAL HORA advised members that Dutch Harbor                
 Seafoods expressed the want for a jury trial because the value of             
 their illegal catch was $150,000.  Under the Baker v. City of                
 Fairbanks case, Deputy Attorney General Hora explained that it               
 addressed fines indicative of criminality as being subject to jury            
 trials in criminal cases.  The department approached the court of             
 appeals who denied the state's request for discretionary review.              
 The state then filed with the supreme court, who basically said               
 that the forfeiture of the illegal gain was essentially restitution           
 and a jury trial would not take place.                                        
                                                                               
 DEPUTY ATTORNEY GENERAL HORA informed members the department had              
 filed a petition for rehearing which stated, basically, that the              
 issue was neither criminal nor civil and a jury trial should not be           
 provided in those types of cases.                                             
                                                                               
 CHAIRMAN GREEN asked if those types of situations could be dealt              
 with in the small claims court.  Deputy Attorney General Hora's               
 response was that that would require a constitutional amendment.              
                                                                               
 REPRESENTATIVE PORTER referenced the Venetie case and asked if the            
 state lost at the supreme court level if there would be a federal             
 statutory fix available.                                                      
                                                                               
 Number 2336                                                                   
                                                                               
 ATTORNEY GENERAL BOTELHO felt that would become the arena for                 
 debate as to whether there would be some acceptable middle ground             
 to resolve the issue.  It was his sense that the delegation was               
 clearly committed to finding a solution in the event that the                 
 supreme court chose not to take the case, in the first place, or to           
 rule against the state.  He noted that one of the big issues of               
 debate was timing in terms of when it would be appropriate for                
 Congress to begin working on the issue.  The state was concerned              
 that if it happened too soon and the supreme court was aware there            
 was Congressional activity, that they would be less inclined to               
 accept the state's petition in the first place.  Attorney General             
 Botelho felt that Congress was the forum they would immediately               
 switch to, at the point, if the supreme court decided not to take             
 the case; however, should the court decide to take the case, there            
 could also be some reason to begin the Congressional process                  
 anyway.                                                                       
                                                                               
 VICE CHAIRMAN BUNDE referenced the Venetie case and asked what                
 types of resources and funds the department anticipated spending on           
 that case.                                                                    
                                                                               
 Number 2450                                                                   
                                                                               
 ATTORNEY GENERAL BOTELHO anticipated that the first stage would               
 range between $100,000 and $150,000 in terms of outside counsel.              
 That figure did not include work being done in-house.                         
                                                                               
 VICE CHAIRMAN BUNDE asked that the attorney general speak to the              
 recently filed tobacco industry bill.                                         
                                                                               
 TAPE 97-1, SIDE B                                                             
                                                                               
 Number 000                                                                    
                                                                               
 ATTORNEY GENERAL BOTELHO advised members that tobacco industry                
 companies were challenging the state's authority to increase taxes            
 on tobacco and tobacco products.  He explained that the next step             
 the state would take would be to file an answer or a motion to                
 dismiss.  Both of those options were open to the state and the                
 department was consulting with other states, tactically, because              
 the issues raised in the case were issues being raised in several             
 others.  Attorney General Botelho advised members that Alaska was             
 one of the only states where the litigation was occurring in                  
 federal court, rather than state courts.  He pointed out that the             
 concern of Alaska and other states was that there might be some               
 decisions made that could be adverse to state interests across the            
 country in terms of how the Medicaid scheme worked, generally, and            
 whether there would be an exclusive remedy for recovery that would            
 preclude the state, or any state, to collect.  The department was             
 currently studying the issue closely, and had 20 days from the date           
 the suit is served on the state to file an answer.  Attorney                  
 General Botelho noted that the suit had not been formally served on           
 the state, but had simply received a courtesy copy.                           
                                                                               
 Number 65                                                                     
                                                                               
 REPRESENTATIVE CROFT referenced the issue of providing a waiver to            
 the attorney general for specific purposes and questioned whether             
 there would be a type of continued legislative power or oversight             
 of the waiver.                                                                
                                                                               
 ATTORNEY GENERAL BOTELHO advised members that his staff was                   
 prepared to work with the committee in an attempt to fashion an               
 appropriate mechanism for that exercise.                                      
                                                                               
                                                                               
 OVERVIEW OF THE ALASKA COURT SYSTEM:                                        
 Number 364                                                                    
                                                                               
 CHRIS CHRISTENSEN, General Counsel, Alaska Court System introduced            
 Ms. Stephanie Cole to members of the committee, noting that Art               
 Snowden, the current Administrative Director, would be retiring in            
 the near future.  Ms. Cole had been unanimously selected by the               
 supreme court as his replacement.  Ms. Cole had served as Deputy              
 Director of the Court System for the past 14 years.                           
                                                                               
 MR. CHRISTENSEN spoke briefly about the basic structure of                    
 government in Alaska.  He explained that Alaska had the same basic            
 governmental structure as the federal government and the other 49             
 states.  It was initially believed that the best way to ensure                
 liberty was to limit governmental power by taking the three basic             
 governmental functions and splitting them up.  Those three powers             
 included the legislative power to pass laws, the executive power to           
 implement and enforce the laws and the judicial power which has the           
 power to apply laws to individuals.                                           
                                                                               
 MR. CHRISTENSEN pointed out that the three branches were separate,            
 but equal, which meant that no branch was supposed to be more                 
 powerful than the other branches.  Those branches have been set up            
 so there would be checks and balances whereby each branch has been            
 given certain powers which allow it to control the power of the               
 other two so that they cannot defeat its primary function.  Mr.               
 Christensen provided an example of the legislature's power of the             
 purse over the other two branches, or the Governor's veto power               
 over legislation, or the supreme court's authority to be the final            
 interpreter of the Alaska Constitution.                                       
                                                                               
 MR. CHRISTENSEN continued to say that each branch was not limited             
 to its own power, but also have some limited powers that belong to            
 the others.  An example of this would be where the Executive                  
 Branch's power was primarily executive, however the Governor's veto           
 power was a legislative power.                                                
                                                                               
 MR. CHRISTENSEN noted with respect to the operating budget that the           
 executive branch comprised approximately 88 percent of state                  
 government, and the university, 11.5 percent of state government.             
 He pointed out that the legislature and the judiciary, together,              
 comprised barely two percent of state government.                             
                                                                               
 Number 540                                                                    
                                                                               
 MR. CHRISTENSEN advised members that the judiciary had 57 justices            
 and judges, each with their own individual power base.  He noted              
 that the supreme court, as a general rule, takes no position on               
 legislation, although would express any technical problems they               
 might find with legislation, and provide fiscal notes in order that           
 the legislature be aware of the fiscal impact of legislation.                 
                                                                               
 MR. CHRISTENSEN explained that under the State Constitution the               
 judicial branch was comprised of three components.  The Judicial              
 Conduct Commission, which was essentially the judges ethics                   
 committee and was made up of three lawyers, three judges and three            
 public members.  That commission is charged with investigating                
 complaints against judges who are accused of violating the Judicial           
 Cannons, which was a very strict ethics code that places tremendous           
 limitations on a judges financial affairs, as well as their ability           
 to socialize.                                                                 
                                                                               
 The second component was the Judicial Council made up of three                
 members of the Bar, three gubernatorial appointees and the Chief              
 Justice who acts as a tie breaker.  The duties of this council are            
 to evaluate candidates for judicial office and submit a list to the           
 governor for him to select a judicial nominee from.  The Judicial             
 Council also compiles information to provide voters when judges               
 stand for retention on a regular basis.  The council is also                  
 responsible for conducting studies to improve the state's system of           
 justice.                                                                      
                                                                               
 MR. CHRISTENSEN advised members that the primary component of the             
 judicial branch was the court system.  The court system has                   
 approximately 700 full-time and part-time employees, of which 57              
 are justices or judges appointed by the governor.  There are five             
 supreme court justices, three judges on the court of criminal                 
 appeals, 32 superior court judges and 17 district court judges.               
 Mr. Christensen expressed that there were also 39 magistrates who             
 are hired by the presiding judge in each of the four judicial                 
 districts, and serve at the pleasure of the presiding judge.                  
                                                                               
 Number 670                                                                    
                                                                               
 MR. CHRISTENSEN pointed out that approximately 70 percent of the              
 court system's employees were a range 15 or below and scattered               
 throughout the state at 59 different court locations; superior                
 court and district court locations.                                           
                                                                               
 MR. CHRISTENSEN informed members that Alaska was one of five states           
 having a fully unified judicial system.  Most states have municipal           
 courts, county courts and courts funded by different entities.  In            
 Alaska, all courts are state courts and fully funded by the                   
 legislature.  Mr. Christensen did note, however, that some of the             
 court system's costs are driven by what the municipalities do.                
                                                                               
 MR. CHRISTENSEN went on to say that Alaska had four levels of                 
 courts.  Two of those were created by the constitution; the supreme           
 court and the superior court.  The two other levels were created by           
 the legislature; the district court, which was created at the time            
 of statehood, and the court of criminal appeals, created by the               
 legislature in 1980.                                                          
                                                                               
 MR. CHRISTENSEN pointed out that in FY 96, approximately 143,000              
 court cases were filed in the state, which was a two percent                  
 increase from the previous year.  He noted that those numbers                 
 included a 16 percent increase in the felony case load, which was             
 the most expensive kind of case handled by the court system.                  
                                                                               
 REPRESENTATIVE BERKOWITZ asked what percentage of the increased               
 felony load was due to the felony, driving while intoxicated (DWI)            
 law.  Mr. Christensen could not immediately answer that question              
 and did not think that statistic was in the court system's annual             
 report, but would check into it for the representative.                       
                                                                               
 VICE CHAIRMAN BUNDE felt the numbers of cases expressed by Mr.                
 Christensen did not appear to coincide with what the newspapers and           
 media were saying about a decrease in crime in the state of Alaska.           
                                                                               
 MR. CHRISTENSEN responded that even though there may be fewer                 
 people committing crimes, there were actually more people being               
 charged with those crimes because of an increase in the number of             
 police officers.  By the police being more efficient, the crime               
 rate may have gone down, but the number of cases actually seen by             
 the courts were either staying the same or going up.                          
                                                                               
 MR. CHRISTENSEN advised members that one problem the court system             
 has, in terms of handling their case load, was that unlike many               
 executive agencies, including the Department of Law, the court                
 system has no discretion to accept or reject cases.  He noted that            
 with no control over their case load, and as the population                   
 continued to increase, the court system would continue to realize             
 an increase in the case load.                                                 
                                                                               
 CHAIRMAN GREEN asked if a jury trial were requested, would the                
 court system be required to hold a jury trial.  Mr. Christensen               
 explained that the Constitution sets out certain rights to a jury             
 trial.  He pointed out, however, that only about five percent of              
 all civil cases actually go to trial; the other 95 percent settle             
 out of court.  With respect to criminal cases, Mr. Christensen                
 noted that only about 10 percent of those actually go to trial, and           
 the remaining 90 percent plead out through the plea bargaining                
 process.                                                                      
                                                                               
 MR. CHRISTENSEN advised members that aside from the appellate                 
 courts and the trial courts, the court system had one other arm               
 which was the Office of the Administrative Director, that is the              
 support system that keeps the courts going.  This office entails a            
 court rules attorney who drafts all the court rules and presents              
 them to the supreme court; a personnel office, a print shop,                  
 micrographic shop which microfilms all the records, adding that the           
 court is required to maintain all court records since statehood.              
 The court system also maintains the state law libraries and has a             
 technical operations branch which maintains the court system's                
 computer system and court room recorders.                                     
                                                                               
 MR. CHRISTENSEN expressed that Alaska was the only state that did             
 not utilize court reporters.  Alaska tape records all court                   
 proceedings which saves the state a dramatic amount of money.  Mr.            
 Christensen noted that the accounting division was also a part of             
 the administrative office.  He was pleased to report that the                 
 accounting division, the previous year, had been able to collect              
 approximately $4.5 million in court fines, with an additional $1.5            
 million in filing fees and other fees which are turned over to the            
 state's general fund.                                                         
                                                                               
 REPRESENTATIVE CROFT declared a possible conflict of interest                 
 stating that he had previously clerked with the court system, and             
 through his personal business, occasionally hires judges to present           
 lectures.                                                                     
                                                                               
 REPRESENTATIVE BERKOWITZ also declared a possible conflict of                 
 interest as he had previously been employed by the Department of              
 Law as a district attorney, and also as a trial lawyer in the                 
 courts.                                                                       
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 Number 1588                                                                   
                                                                               
 There being nothing further to come before the committee, Chairman            
 Green adjourned the House Judiciary Committee meeting at 2:27 p.m.            
                                                                               

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