Legislature(1993 - 1994)

01/31/1994 01:15 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        January 31, 1994                                       
                            1:15 p.m.                                          
  MEMBERS PRESENT                                                              
  Rep. Brian Porter, Chairman                                                  
  Rep. Jeannette James, Vice-Chair                                             
  Rep. Pete Kott                                                               
  Rep. Gail Phillips (arrived at 1:35 p.m.)                                    
  Rep. Joe Green                                                               
  Rep. Cliff Davidson                                                          
  Rep. Jim Nordlund                                                            
  MEMBERS ABSENT                                                               
  COMMITTEE CALENDAR                                                           
  HB 162:   "An Act authorizing capital punishment,                            
            classifying murder in the first degree as a                        
            capital felony, and establishing sentencing                        
            procedures for capital felonies; authorizing an                    
            advisory vote on instituting capital punishment;                   
            and providing for an effective date."                              
            FAILED TO MOVE OUT OF COMMITTEE BY A VOTE OF 4-3                   
  HB 49:    "An Act relating to facsimile absentee ballot                      
            application and facsimile absentee voting."                        
            CSHB 49(JUD) PASSED OUT OF COMMITTEE WITH                          
            INDIVIDUAL RECOMMENDATIONS AND A FISCAL NOTE                       
  HB 315:   "An Act relating to the unauthorized use of or                     
            unauthorized interference with transmission and                    
            delivery of subscription cable services; and                       
            amending the definition of the offense of theft of                 
            services and the penalties for its violation."                     
            CSHB 315(JUD) PASSED OUT OF COMMITTEE WITH NO                      
  *HB 313:  "An Act relating to suspended imposition of                        
            criminal sentences and to the period in which                      
            suspension of the imposition of sentence for                       
            conviction of the crime of disorderly conduct may                  
            be authorized."                                                    
            CSHB 313(JUD) PASSED OUT OF COMMITTEE WITH                         
            INDIVIDUAL RECOMMENDATIONS                                         
  WITNESS REGISTER                                                             
  REP. JERRY SANDERS                                                           
  Alaska State Legislature                                                     
  Capitol, Room 13                                                             
  Juneau, Alaska  99801-1182                                                   
  Phone:  465-4945                                                             
  POSITION STATEMENT:  Prime Sponsor of HB 162.                                
  JERRY LAUKPAUT                                                               
  Legal Services                                                               
  Legislative Affairs Agency                                                   
  130 Seward Street                                                            
  Juneau, Alaska  99801                                                        
  Phone:  465-2450                                                             
  POSITION STATEMENT:  Drafter of HB 162 and Rep. Nordlund's                   
  TOM ANDERSON                                                                 
  Legislative Aide                                                             
  Rep. Terry Martin                                                            
  Alaska State Legislature                                                     
  Capital Building, Room 411                                                   
  Phone:  465-3783                                                             
  POSITION STATEMENT:  Testified on behalf of Rep. Martin,                     
                       Prime Sponsor of HB 49.                                 
  JOHN GAGUINE                                                                 
  Assistant Attorney General                                                   
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska  99811                                                        
  Phone:  465-2127                                                             
  POSITION STATEMENT:  Available to answer questions on HB 49.                 
  ERIC MUSSER                                                                  
  Legislative Aide                                                             
  Rep. Brian Porter                                                            
  Alaska State Legislature                                                     
  Capitol Building, Room 118                                                   
  Juneau, Alaska  99811                                                        
  Phone:  465-4930                                                             
  POSITION STATEMENT:  Testified on behalf of Rep. Porter,                     
                       Prime Sponsor of HB 315.                                
  REP. PETE KOTT                                                               
  Alaska State Legislature                                                     
  Capitol Building, Room 409                                                   
  Juneau, Alaska  99811                                                        
  Phone:  465-3743                                                             
  POSITION STATEMENT:  Prime Sponsor of HB 313.                                
  MARGO KNUTH                                                                  
  Criminal Division                                                            
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska  99811                                                        
  Phone:  465-3428                                                             
  POSITION STATEMENT:  Answered questions regarding HB 315.                    
  PREVIOUS ACTION                                                              
  BILL:  HB 162                                                                
  SHORT TITLE: CAPITAL PUNISHMENT FOR MURDER                                   
  BILL VERSION: SSHB 162                                                       
  SPONSOR(S): REPRESENTATIVE(S) SANDERS,Olberg,Bunde,Kott,                     
  JRN-DATE    JRN-PG                     ACTION                                
  02/18/93       380    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  02/18/93       380    (H)   JUDICIARY, FINANCE                               
  02/22/93       421    (H)   COSPONSOR(S): BUNDE                              
  02/24/93       445    (H)   COSPONSOR(S): KOTT                               
  03/01/93       495    (H)   COSPONSOR(S): VEZEY                              
  03/02/93       510    (H)   COSPONSOR(S): JAMES                              
  11/16/93              (H)   MINUTE(JUD)                                      
  11/16/93              (S)   MINUTE(JUD)                                      
  01/19/94      2109    (H)   SPONSOR SUBSTITUTE                               
  01/19/94      2109    (H)   JUDICIARY, FINANCE                               
  01/26/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  01/26/94              (H)   MINUTE(JUD)                                      
  01/28/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  BILL:  HB  49                                                                
  SHORT TITLE: ABSENTEE BALLOTING BY FAX                                       
  BILL VERSION:                                                                
  SPONSOR(S): REPRESENTATIVE(S) MARTIN,Brice                                   
  JRN-DATE    JRN-PG                     ACTION                                
  01/13/93        52    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/13/93        53    (H)   STATE AFFAIRS,JUDICIARY,FINANCE                  
  01/20/93       117    (H)   COSPONSOR(S): BRICE                              
  01/28/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  01/28/93              (H)   MINUTE(STA)                                      
  01/30/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  01/30/93              (H)   MINUTE(STA)                                      
  02/09/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  02/11/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  02/11/93              (H)   MINUTE(STA)                                      
  02/13/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  02/18/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  02/18/93              (H)   MINUTE(STA)                                      
  03/02/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  03/02/93              (H)   MINUTE(STA)                                      
  03/04/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  03/04/93              (H)   MINUTE(STA)                                      
  03/05/93       541    (H)   STA RPT  CS(STA) NEW TITLE                       
                              1DP 1DNP 5NR                                     
  03/05/93       541    (H)   DP: VEZEY                                        
  03/05/93       541    (H)   DNP: ULMER                                       
  03/05/93       541    (H)   NR: B.DAVIS,OLBERG, G.DAVIS,                     
  03/05/93       541    (H)   -FISCAL NOTE  (GOV)  3/5/93                      
  04/21/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
  01/19/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  01/19/94              (H)   MINUTE(JUD)                                      
  01/21/94              (H)   MINUTE(JUD)                                      
  01/31/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  BILL:  HB 315                                                                
  SHORT TITLE: THEFT OF SUBSCRIPTION TV SERVICES                               
  SPONSOR(S): REPRESENTATIVE(S) PORTER,Green,Toohey                            
  JRN-DATE    JRN-PG                     ACTION                                
  01/03/94      2009    (H)   PREFILE RELEASED                                 
  01/10/94      2009    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/10/94      2009    (H)   JUDICIARY, FINANCE                               
  01/24/94      2139    (H)   COSPONSOR(S):  GREEN, TOOHEY                     
  01/24/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  01/24/94              (H)   MINUTE(JUD)                                      
  01/31/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  BILL:  HB 313                                                                
  SPONSOR(S): REPRESENTATIVE(S) KOTT                                           
  JRN-DATE    JRN-PG                     ACTION                                
  01/03/94      2009    (H)   PREFILE RLEASED                                  
  01/10/94      2009    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/10/94      2009    (H)   JUDICIARY, FINANCE                               
  01/31/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  ACTION NARRATIVE                                                             
  TAPE 94-13, SIDE A                                                           
  Number 000                                                                   
  The House Judiciary Standing Committee was called to order                   
  at 1:30 p.m. on January 31, 1994.  A quorum was present.                     
  Chairman Porter announced that the first order of business                   
  was HB 162, and that the prime sponsor, Rep. Jerry Sanders,                  
  was on teleconference from Anchorage.                                        
  HB 162 - CAPITAL PUNISHMENT FOR MURDER                                       
  Number 025                                                                   
  REP. PORTER said that the public hearing on HB 162 had been                  
  concluded after a hearing in Anchorage during the interim                    
  and two teleconferences in Juneau, and requested amendments.                 
  Number 046                                                                   
  REP. NORDLUND said he had an amendment that would basically                  
  strip the entire bill and substitute life without parole in                  
  lieu of the death penalty, and moved the amendment.                          
  Number 090                                                                   
  REP. KOTT objected for the purpose of discussion.                            
  Number 114                                                                   
  JERRY LAUKPAUT, Legal Services, Legislative Affairs Agency,                  
  drafter of HB 162, the Sponsor Substitute, and the Nordlund                  
  amendment (E3), explained the amendment to the committee.                    
  Mr. Laukpaut explained that Rep. Nordlund had him take the                   
  basic aggravating factors in the bill and change the penalty                 
  from death to life without possibility of parole.                            
  Number 183                                                                   
  The committee discussed the amendment, including the                         
  possibility of furlough, good time, escape, threat to                        
  correctional officials, and whether it was constitutional.                   
  The committee also discussed if there would be a need for                    
  additional facilities to house life-time offenders.                          
  Number 741                                                                   
  REP. PORTER called for a roll call vote on the amendment:                    
  Rep. Kott      no             Rep. Nordlund       yes                        
  Rep. Phillips  no             Rep. Davidson       yes                        
  Rep. Green     yes            Rep. James          no                         
  Rep. Porter    no                                                            
  THE MOTION TO AMEND FAILED.                                                  
  Number 750                                                                   
  REP. PORTER said the committee had in front of it HB 162 as                  
  originally presented.  He reminded the committee of the                      
  concern of Jack Chenoweth of the Attorney General's Office,                  
  which is the crime of first degree murder, with a range of                   
  sentence from 20 years to 99 years.  Rep. Porter indicated                   
  there is a concern that this range would give rise to an                     
  equal protection constitutional challenge, and there is no                   
  doubt that should HB 162 become law, everything in it would                  
  be challenged in some form, but this is something the                        
  committee might want to consider.                                            
  Number 766                                                                   
  REP. JAMES indicated she would feel a lot more comfortable                   
  with HB 162 if the committee had an overall view of the                      
  bill, and even though she supports in concept capital                        
  punishment, she would like to also have the possibility of                   
  mandatory incarceration without parole.  Rep. James                          
  suggested a working group to look at the whole range of                      
  sentencing options and come up with something for the                        
  committee to look at.                                                        
  Number 782                                                                   
  REP. PORTER said that if there were, for example, 100                        
  challenges to this bill, he was sure that 99 of them would                   
  meet the challenge, albeit years from now after hundreds of                  
  thousands of dollars have been spent, but they would meet                    
  the challenge, from his understanding of the U.S. Supreme                    
  Court's position on capital punishment and the cases they                    
  have decided and guidelines they have written.  He added                     
  that he thought HB 162 meets all the requirements with the                   
  one exception of possibility of sentencing disparity, and he                 
  thought it was worth thinking about.                                         
  Number 796                                                                   
  REP. PHILLIPS told the committee she had a lot of thoughts                   
  on this bill and was not anywhere near ready to pass the                     
  bill out.  She said she thought the testimony was stacked                    
  with attorneys and did not reflect current public opinion                    
  favoring the death penalty.                                                  
  Number 808                                                                   
  REP. PORTER responded that the committee had three public                    
  hearings, one in Anchorage with the Joint Judiciary                          
  Committees, and to his knowledge the companion bill was not                  
  moving in the Senate, so this was just the first of                          
  potentially three or four committee hearings on the                          
  legislation.  Rep. Porter said he was being told by those                    
  who favor it to move it out of committee, and he was being                   
  told by those who don't want it to sit on it.  He added that                 
  he didn't particularly want it, but he didn't particularly                   
  want to sit on it either.                                                    
  Number 820                                                                   
  REP. PHILLIPS reiterated that she felt very uncomfortable                    
  that the committee hadn't done its work on the legislation,                  
  and that the committee hadn't taken enough public testimony.                 
  Rep. Phillips added that she felt the testimony had been                     
  totally slanted, and that she knows there's another side out                 
  Number 830                                                                   
  The committee discussed Rep. Phillips' concerns, with a                      
  number of members indicating they shared her concerns.                       
  TAPE 94-13, SIDE B                                                           
  Number 012                                                                   
  REP. PORTER said it was his intention to vote HB 162 up or                   
  Number 018                                                                   
  REP. JAMES supported Rep. Porter's intention to vote to move                 
  the bill out of committee, and suggested it would probably                   
  die in House Finance because of the cost, and that it was                    
  time to let another committee deal with it.                                  
  Number 020                                                                   
  REP. PORTER asked if the committee's comments about not                      
  hearing enough public testimony was an indication that                       
  members didn't believe that public support for HB 162 was as                 
  vehement as thought.                                                         
  Discussion on Rep. Porter's comments and Rep. Phillips'                      
  concerns ensued.                                                             
  Number 091                                                                   
  REP. PORTER told the committee he felt holding chairmanship                  
  of the Judiciary Committee had two roles:  one, the general                  
  public policy, "represent my district" kind of role that                     
  each legislator shares; and second, he would not let the                     
  committee pass a bill that he had any concern about being                    
  constitutionally flawed.  Rep. Porter said that is the                       
  committee's professional requirement, and added that his                     
  vote to move HB 162 out of committee was going to be a                       
  reflection of the professional requirement of this                           
  committee, making it a lawful piece of legislature should it                 
  pass.  He added, however, that he did not support the bill                   
  and would not vote for it if it came to the floor of the                     
  House, but if a piece of legislation came across reflecting                  
  Rep. Nordlund's amendment, he would probably support it.                     
  Number 130                                                                   
  REP. KOTT pointed out that this latest round of testimony                    
  dealt with a different bill in that the committee was no                     
  longer dealing with court rules, so it could pass with a                     
  simple majority.  He said the committee should have perhaps                  
  dug into that a little deeper, but if Rep. Porter was                        
  satisfied with the constitutionality of the bill, then he                    
  would go along with the recommendation to move HB 162 out,                   
  and would in fact support HB 162, having had a mandate of                    
  almost 82 percent of his constituents supporting it.                         
  Number 161                                                                   
  REP. NORDLUND offered another amendment stripping Section 13                 
  out of the bill, which was the section pertaining to putting                 
  the issue on the ballot for a public vote.  He moved                         
  Amendment No. 2.                                                             
  Number 188                                                                   
  Discussion ensued on Amendment No. 2.                                        
  Number 256                                                                   
  REP. PORTER called for a vote on Amendment No. 2:                            
  Rep. Phillips       yes            Rep. Davidson       yes                   
  Rep. Green          yes            Rep. Kott           no                    
  Rep. Nordlund       yes            Rep. James          no                    
  Rep. Porter         yes                                                      
  Number 264                                                                   
  A discussion on HB 162 ensued.                                               
  Number 633                                                                   
  WITH INDIVIDUAL RECOMMENDATIONS.                                             
  REP. PORTER called for a roll call vote:                                     
  Rep. Davidson       no             Rep. Green          no                    
  Rep. Kott           yes            Rep. Nordlund       no                    
  Rep. Phillips       no             Rep. James          yes                   
  Rep. Phillips       yes.                                                     
  RECOMMENDATIONS FAILED.                                                      
  Number 651                                                                   
  REP. PORTER said the next order of business was HB 49.                       
  CSHB 49(JUD) - "An Act relating to absentee voting, to                       
  electronic transmission of absentee ballot applications,                     
  and to delivery of ballots to absentee ballot applicants by                  
  electronic transmission."                                                    
  Number 660                                                                   
  TOM ANDERSON, Legislative Aide to Rep. Terry Martin, Prime                   
  Sponsor of HB 49, testified that he followed up on the                       
  question relating to postmarks and also of how HB 49 would                   
  affect municipal clerks.  Mr. Anderson said Rep. Martin had                  
  no problem with changing the wording of the bill to say that                 
  an application requesting delivery of an absentee ballot to                  
  the applicant must be addressed to the Division of Elections                 
  and received in not less than seven days.  On the second                     
  question, Mr. Anderson referred to a letter from Patty Ann                   
  Polly, the Juneau City Clerk, and asked the committee to                     
  note that HB 49 only addressed Section 15 of the Statutes,                   
  not Section 29, which had to do with municipal elections, so                 
  it wouldn't really affect city elections.                                    
  Number 703                                                                   
  JOHN GAGUINE, Governmental Affairs Section, Attorney                         
  General's Office, testified that they saw no problem with                    
  secrecy and the right to privacy.  Mr. Gaguine said he was                   
  confident that the Division of Elections could come up with                  
  procedures to deal with the issue of secrecy.  He added that                 
  the state was not forcing anyone to vote this way; it was a                  
  matter of choice.                                                            
  REP. PORTER asked Mr. Gaguine if he was saying you can waive                 
  the right to secrecy.                                                        
  Number 733                                                                   
  MR. GAGUINE said no, you cannot waive your right to secrecy.                 
  Number 738                                                                   
  REP. PORTER commented that the Division of Elections could                   
  not guarantee secrecy.                                                       
  Number 743                                                                   
  MR. GAGUINE concurred.                                                       
  Number 764                                                                   
  REP. PORTER said he would entertain a motion to amend page                   
  3, line 19, change the first two words "and postmarked" to                   
  "and received."                                                              
  AMENDMENT NO. 1 WAS MOVED WITHOUT OBJECTION.                                 
  Number 770                                                                   
  REP. GREEN moved the amended bill out of committee with                      
  individual recommendations, with a fiscal note.                              
  HEARING NO OBJECTIONS, CSHB 49(JUD) WAS MOVED OUT OF                         
  HB 315 - THEFT OF SUBSCRIPTION TV SERVICES                                   
  Number 790                                                                   
  REP. PORTER brought the next bill before the committee,                      
  HB 315.                                                                      
  ERIC MUSSER, Legislative Aide to Rep. Brian Porter,                          
  described a draft committee substitute, which simply makes                   
  more clear the intent of the legislation.  He said during                    
  the previous hearing two questions were raised, and on page                  
  3, line 13, of the original bill the question came up to                     
  just what "inductively" meant.  Mr. Musser also said a                       
  question came up as to whether there was a redundancy                        
  between the language on page 3, line 13 and line 19.                         
  MR. MUSSER said the committee substitute restructures the                    
  language to eliminate any redundancy, and included a                         
  definition of an unauthorized device.                                        
  Number 840                                                                   
  REP. PHILLIPS MOVED the JUDICIARY SUBSTITUTE for HB 315.                     
  Hearing no objection, it was so moved.                                       
  CSHB 315(JUD) MOVED OUT OF COMMITTEE.                                        
  TAPE 94-14, SIDE A                                                           
  Number 000                                                                   
  CSHB 313(JUD) - "An Act relating to suspended imposition of                  
  criminal sentences and to the imposition of sentence when a                  
  suspended imposition of sentence is revoked."                                
  REP. PORTER said the next order of business was HB 313.                      
  Number 010                                                                   
  REP. PETE KOTT, Prime Sponsor of HB 313, presented the                       
  committee with a committee substitute and testified that the                 
  legislation's original intent extended to judges the                         
  opportunity to impose the suspended imposition of sentencing                 
  to 90 days, but as it currently stands, you can only suspend                 
  imposition of sentence up to the amount of time a person                     
  would actually be serving.  The Committee Substitute (CS)                    
  allows for probation to go up to one year.                                   
  Number 127                                                                   
  REP. PORTER said he intends to support the bill because it                   
  provides some options not currently available to the system,                 
  and the only correction he would make is changing 5th degree                 
  to 3rd degree on weapons misconduct.                                         
  Number 130                                                                   
  MARGO KNUTH, Criminal Division, Department of Law, explained                 
  to the committee that there is now a 5th degree weapons                      
  offense and it is a misdemeanor offence and it starts off                    
  with higher offenses than the state used to have.                            
  Number 160                                                                   
  REP. NORDLUND asked if HB 315 would allow for an SIS to go                   
  beyond what an original sentence was.                                        
  Number 173                                                                   
  REP. KOTT replied yes; under a Class B misdemeanor an                        
  individual would get 90 days in jail, so this allows a judge                 
  to extend that period of probation up to one year, and it is                 
  up to judicial discretion.                                                   
  Number 192                                                                   
  REP. PORTER said it has been pointed out that Anchorage and                  
  other urban communities that have problems with criminal                     
  behavior is really a result of an inebriate problem, and                     
  this would allow a court to sentence an SIS for a lengthy                    
  period of treatment as opposed to just disorderly conduct,                   
  which often is a drinking problem.                                           
  Number 199                                                                   
  REP. GREEN asked if the additional extension of probation                    
  Number 192                                                                   
  REP. PORTER replied that the judge will issue a suspended                    
  imposition of sentence for a certain length of time, and                     
  HB 313 allows that time to go up in the judge's opinion if                   
  there is a reason for it.                                                    
  Number 252                                                                   
  MS. KNUTH said because it will be applied to new offenses                    
  that are committed as long as it is a reasonable time                        
  period, and the legislature can set whatever time period it                  
  wants, and what is happening is the original sentencing is                   
  still there, but it stays at risk for a longer time period.                  
  MS. KNUTH continued, saying judges have asked for this                       
  amendment because right now they are not granting SIS's for                  
  these minor offenses because they don't feel they can trust                  
  a person to know if it's taken in 10 or 90 days, so they                     
  will impose the sentence which gives them a much longer time                 
  period and in effect they feel that they have been harsher                   
  than they should be.  She said judges would like to be able                  
  to grant an SIS, which is a liberal and useful thing to do,                  
  but only if there is enough security build into it.                          
  Number 324                                                                   
  REP. PHILLIPS MOVED CSHB 313(JUD).  Hearing no objection, it                 
  was so moved.                                                                
  Chairman Porter adjourned the meeting at 3:30 p.m.                           

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