Legislature(1997 - 1998)
03/21/1997 01:05 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE March 21, 1997 1:05 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT Representative Brian Porter COMMITTEE CALENDAR CS FOR SENATE BILL NO. 1(FIN) am "An Act relating to living and working conditions of prisoners in correctional facilities operated by the state, and authorizing the commissioner of corrections to negotiate with providers of detention and confinement services under contract to apply those conditions and limitations on services to persons held under authority of state law at facilities operated under contract or agreement; relating to services provided to prisoners; amending the definition of `severely medically disabled' applicable to prisoners seeking special medical parole; amending provisions of the correctional industries program; and extending the termination date of the Correctional Industries Commission and the program." - MOVED HCS CSSB 1(JUD) OUT OF COMMITTEE HOUSE BILL NO. 10 "An Act requiring mediation in a civil action against an architect, engineer, or land surveyor; amending Rule 100, Alaska Rules of Civil Procedure; and providing for an effective date." - MOVED CSHB 10(L&C) OUT OF COMMITTEE HOUSE BILL NO. 95 "An Act relating to motor vehicle registration, licensing, and insurance; and providing for an effective date." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: SB 1 SHORT TITLE: "NO FRILLS" PRISON ACT SPONSOR(S): SENATOR(S) DONLEY, Halford, Pearce, Green, Leman, Taylor, Kelly, Mackie, Phillips; REPRESENTATIVE(S) Mulder, Cowdery, Green, Bunde JRN-DATE JRN-PG ACTION 01/03/97 13 (S) PREFILE RELEASED 1/3/97 01/13/97 13 (S) READ THE FIRST TIME - REFERRAL(S) 01/13/97 14 (S) JUD, FIN 01/22/97 (S) JUD AT 1:30 PM BELTZ ROOM 211 01/22/97 (S) MINUTE(JUD) 01/27/97 (S) JUD AT 1:30 PM BELTZ ROOM 211 01/27/97 (S) MINUTE(JUD) 01/29/97 163 (S) COSPONSOR(S): GREEN, LEMAN 01/30/97 171 (S) JUD RPT CS 4DP SAME TITLE 01/30/97 171 (S) DP: TAYLOR, MILLER, PARNELL, PEARCE 01/30/97 171 (S) FISCAL NOTE TO SB (DPS) 01/30/97 171 (S) FISCAL NOTE TO CS (DPS) 01/30/97 171 (S) ZERO FISCAL NOTES TO SB & CS (LAW, DPS) 01/30/97 183 (S) COSPONSOR: TAYLOR 02/05/97 (S) FIN AT 9:00 AM SENATE FINANCE 532 02/06/97 246 (S) FIN RPT CS 6DP 1DNP SAME TITLE 02/06/97 246 (S) DP: SHARP, PEARCE, PHILLIPS, PARNELL, 02/06/97 246 (S) TORGERSON, DONLEY; DNP: ADAMS 02/06/97 246 (S) PREVIOUS FN TO CS (COR) 02/06/97 246 (S) PREVIOUS ZERO FNS TO CS (DPS, LAW) 02/11/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203 02/11/97 (S) MINUTE(RLS) 02/11/97 283 (S) RULES TO CALENDAR & 1NR 2/11/97 02/11/97 285 (S) READ THE SECOND TIME 02/11/97 285 (S) FIN CS ADOPTED UNAN CONSENT 02/11/97 285 (S) AM NO 1 OFFERED BY ADAMS 02/11/97 285 (S) AM NO 1 FAILED Y5 N14 E1 02/11/97 286 (S) AM NO 2 OFFERED BY ADAMS 02/11/97 286 (S) AM NO 2 FAILED Y5 N14 E1 02/11/97 287 (S) AM NO 3 MOVED BY GREEN 02/11/97 287 (S) AM NO 3 ADOPTED UNAN CONSENT 02/11/97 287 (S) AM NO 4 OFFERED BY LINCOLN 02/11/97 287 (S) AM NO 4 FAILED Y5 N14 E1 02/11/97 287 (S) ADVANCED TO THIRD READING UNAN CONSENT 02/11/97 288 (S) READ THE THIRD TIME CSSB 1(FIN) AM 02/11/97 288 (S) RETURN TO SECOND FOR AM 5 UNAN CONSENT 02/11/97 288 (S) AM NO 5 ADOPTED UNAN CONSENT 02/11/97 288 (S) AUTOMATICALLY IN THIRD READING 02/11/97 288 (S) COSPONSOR(S): KELLY, MACKIE, PHILLIPS 02/11/97 289 (S) PASSED Y17 N2 E1 02/11/97 289 (S) DUNCAN NOTICE OF RECONSIDERATION 02/12/97 316 (S) RECONSIDERATION NOT TAKEN UP 02/12/97 317 (S) TRANSMITTED TO (H) 02/13/97 330 (H) READ THE FIRST TIME - REFERRAL(S) 02/13/97 330 (H) JUDICIARY, FINANCE 02/13/97 349 (H) CROSS SPONSOR(S): MULDER 02/18/97 388 (H) CROSS SPONSOR(S): COWDERY 03/07/97 (H) JUD AT 1:00 PM CAPITOL 120 03/07/97 (H) MINUTE(JUD) 03/07/97 594 (H) CROSS SPONSOR(S): GREEN 03/10/97 (H) JUD AT 1:00 PM CAPITOL 120 03/10/97 (H) MINUTE(JUD) 03/14/97 (H) JUD AT 1:00 PM CAPITOL 120 03/14/97 (H) MINUTE(JUD) 03/19/97 (H) JUD AT 1:00 PM CAPITOL 120 03/19/97 (H) MINUTE(JUD) 03/21/97 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 10 SHORT TITLE: MANDATORY MEDIATION/DESIGN PROF LAWSUITS SPONSOR(S): REPRESENTATIVE(S) GREEN JRN-DATE JRN-PG ACTION 01/13/97 29 (H) PREFILE RELEASED 1/3/97 01/13/97 29 (H) READ THE FIRST TIME - REFERRAL(S) 01/13/97 29 (H) LABOR & COMMERCE, JUD, FINANCE 03/12/97 (H) L&C AT 3:15 PM CAPITOL 17 03/12/97 (H) MINUTE(L&C) 03/14/97 662 (H) L&C RPT CS(L&C) NT 5DP 1NR 03/14/97 662 (H) DP: COWDERY, SANDERS, RYAN, HUDSON 03/14/97 662 (H) ROKEBERG 03/14/97 662 (H) NR: BRICE 03/14/97 663 (H) ZERO FISCAL NOTE (COURT) 03/21/97 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER SENATOR DAVE DONLEY Alaska State Legislature Capitol Building, Room 508 Juneau, Alaska 99811 Telephone: (907) 465-3892 POSITION STATEMENT: Prime Sponsor OF SB 1. JAMES ARMSTRONG, Legislative Aide Senator Dave Donley Capitol Building, Room 508 Juneau, Alaska 99811 Telephone: (907) 465-3892 POSITION STATEMENT: Provided comments on SB 1. FRANK SAUSER, Director Division of Institutions Department of Corrections 4500 Diplomacy Drive, Suite 207 Anchorage, Alaska 99508 Telephone: (907) 269-7409 POSITION STATEMENT: Provided comments on SB 1. PAUL SWEET P.O. Box 1562 Palmer, Alaska 99645 Telephone: (907) 745-2242 POSITION STATEMENT: Provided comments on SB 1. JEFF LOGAN, Legislative Assistant to Representative Joe Green Capitol Building, Room 118 Juneau, Alaska 99811 Telephone: (907) 465-4931 POSITION STATEMENT: Provided comments on behalf of Representative Green, Prime Sponsor HB 10. COLIN MAYNARD, Representative Alaska Professional Design Council P.O. Box 91139 Anchorage, Alaska 99509-1139 Telephone: (907) 274-2236 POSITION STATEMENT: Testified in support of HB 10. ACTION NARRATIVE TAPE 97-44, SIDE A Number 001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee to order at 1:05 p.m. Members present at the call to order were Representatives Con Bunde, Norman Rokeberg, Jeannette James, Eric Croft, Ethan Berkowitz and Chairman Joe Green. Representative Brian Porter was excused. CHAIRMAN GREEN announced that HB 53, Correctional Facility Lease/Purchase was in subcommittee and would be considered possibly on Wednesday, March 26, 1997. He advised members there would be a death penalty debate on Saturday, March 22, 1997, from 2:30 to 4:30, by two members of the same church from Fairbanks, Alaska. On Monday, March 24, 1997, members would consider the Death Penalty Advisory Vote bill. CHAIRMAN GREEN reminded members that the committee had been invited to attend the Committee on Fairness and Access meeting at 5:00 p.m. on Wednesday, March 26, 1997, in Courtroom A in the Dimond Court Building in Juneau, Alaska. REPRESENTATIVE ETHAN BERKOWITZ asked whether "Fairness and Access" pertained to physical access to the court house. CHAIRMAN GREEN said that was correct. CHAIRMAN GREEN advised members that Mat-Su, Anchorage and Kenai, Alaska were on teleconference. CSSB 1(FIN)am - "NO FRILLS" PRISON ACT Number 199 CHAIRMAN GREEN advised members they would continue taking testimony and discussion on CSSB 1(FIN) am, "An Act relating to living and working conditions of prisoners in correctional facilities operated by the state, and authorizing the commissioner of corrections to negotiate with providers of detention and confinement services under contract to apply those conditions and limitations on services to persons held under authority of state law at facilities operated under contract or agreement; relating to services provided to prisoners; amending the definition of `severely medically disabled' applicable to prisoners seeking special medical parole; amending provisions of the correctional industries program; and extending the termination date of the Correctional Industries Commission and the program." SENATOR DAVE DONLEY, Prime Sponsor, directed members' attention to the work draft House committee substitute that incorporated most of the recommendations of the committee expressed during the previous hearing. It was his understanding there were two issues the Department of Corrections wanted to speak to as a result of the changes in the draft committee substitute. CHAIRMAN GREEN suggested that the committee adopt the new draft committee substitute as their working document and modify it accordingly. REPRESENTATIVE CON BUNDE moved to adopt HCS CSSB 1(JUD), Version R. There being no objection, it was so ordered. CHAIRMAN GREEN asked that Senator Donley define the changes of the proposed House committee substitute, and the department could then address their concerns. SENATOR DONLEY advised members the first change, suggested by Representative Rokeberg, reduced the food standard from 90 percent of the military cost to 80 percent. He noted that the department was currently at 80.5 percent of the current military costs, and that was one area the department had concerns with. SENATOR DONLEY stated that the second change, proposed by Representative Croft, dealt with a restructuring of the use of Alaska farm products and salmon and was moved to another section of the bill, which he felt was a good idea. The third change, as recommended by Representative Croft, would allow viewing of movies that did not have a rating. Senator Donley advised members that a rating of "NC-17" was a more violent, more adult standard than an "R" rating. He explained that no one under 17 years of age could be admitted to an "NC-17" rated movie, whereas an "R" rated movie would allow persons under the age of 17, if accompanied by a parent. Number 475 REPRESENTATIVE BUNDE asked if "NC-17" rated movies were on television. SENATOR DONLEY advised members they could be viewed on cable television. REPRESENTATIVE BUNDE asked if video cassette movies were available in prison and if the same rating system would apply. It was his concern whether video movies were rated on their label. SENATOR DONLEY advised members that his experience was that most video cassette movies did reflect the rating on the label. He had seen some rare exceptions where it stated on the label that the movie was not rated. SENATOR DONLEY addressed the fourth change that was recommended by Representative Croft and Representative Porter which involved a drafting change to make clear that the prohibition of free weights was separate from the prohibition of martial arts activities. The fifth change was a result of a question posed by Representative Porter regarding the ban on televisions, as to whether they would be banned in maximum security facilities, or banned from a prisoner classified as maximum custody. Senator Donley expressed that the department had a problem with that change and would speak to their concern. SENATOR DONLEY stated that the sixth change was a result of a question posed by Representative Bunde regarding the $2 utility fee, which appeared on page 6, line 6. He advised members that the dollar figure was deleted, leaving it to the discretion of the department. Senator Donley agreed with that change because it would allow the department the ability to adjust the rate as they saw fit. He pointed out that the department was currently operating in that manner with the medical fee charge. Number 674 REPRESENTATIVE ROKEBERG believed that language would also allow for work credits, rather than a specific dollar amount, which he felt was positive. SENATOR DONLEY stated that that could be done because the department would have the flexibility to allow for that, which he felt was appropriate. SENATOR DONLEY advised members that the seventh change had been requested by the Department of Law, and proposed by Representative Croft, which was a technical change that added the language "conviction or", to Section 8, page 7, line 17, relating to access to legal materials or assistance. SENATOR DONLEY pointed out that there were several other suggestions that were not incorporated into the new House committee substitute. He advised members that Representative Croft had question regarding compliance with the food provisions, and Representative Rokeberg suggested that the bill specify authority to charge prisoners for phone calls. Senator Donley pointed out that in talking with the department, that authority was currently in statute. SENATOR DONLEY expressed that Representative Rokeberg had suggested sanctions be imposed on prisoners who file frivolous litigation. He stated that after researching that idea it was found that last year the legislature imposed a fee to file law suits which had reduced the number of frivolous law suits filed, and was working well. Number 838 REPRESENTATIVE CROFT thanked Senator Donley for incorporating the majority of the recommended changes and asked if the department's concerns involved only the two changes he had spoken to. SENATOR DONLEY advised members that was his understanding, but felt they should speak for themselves, as they may have additional concerns that he was not aware of. REPRESENTATIVE ROKEBERG referenced the expenditures allowed for food and asked Senator Donley if he had a list published by the U.S. Army of the current dollar amount they spend on food. SENATOR DONLEY advised members that for the U.S. Army Alaska, it was $5.91 per day. REPRESENTATIVE ROKEBERG asked if that was from the Elmendorf Air Force Base. SENATOR DONLEY said that was correct. REPRESENTATIVE ROKEBERG pointed out that that was not the U.S. Army. JAMES ARMSTRONG, Legislative Aide, Senator Dave Donley, advised members they addressed that issue last year, and Jerry Shriner, with the Department of Corrections, provided that new language during the interim. Senator Donley expressed that they would get a listing from Fort Rich to compare to the dollar amount provided by the Elmendorf Air Base. Number 981 REPRESENTATIVE JEANNETTE JAMES felt they should consider using the phrase U.S. Military, as opposed to the U.S. Army, or the U.S. Air Force. CHAIRMAN GREEN thought they might consider an average amount because there could be a difference between the various branches of the military. SENATOR DONLEY advised members he would get the numbers from Fort Rich for comparison purposes and provide those numbers to the Finance Committee. REPRESENTATIVE JAMES expressed that it had been determined, through conversation, that the Army had the worst food, and she felt that maybe 80 percent of the worst was the best. CHAIRMAN GREEN asked that Mr. Sauser, with the Department of Corrections, address members via teleconference from Anchorage, Alaska. Number 114 FRANK SAUSER, Director, Division of Institutions, Department of Corrections, advised members that in checking with the military it appeared that they generalize their food costs. He stated that Elmendorf and Fort Rich use a common warehouse. Mr. Sauser stated that the military did not include some of the costs the department did, of which a critical cost for the department was the freight or transportation costs. He noted that that affected the facilities in remote sites and was a considerable increase to the department's food costs. MR. SAUSER stated that it appeared from the figures presented that the department was slightly over 80 percent at the present time. He advised members that the department would prefer, if possible, that they not be held to such a close percentage. Mr. Sauser stated that he did have a concern if the military would decide to cut back on its food budget that it could severely impact the department, adding that the military's food costs fluctuate on a monthly basis, as did the departments. Mr. Sauser pointed out that it was dependant on the number of prisoners being fed, and reiterated that the department calculated their food costs on a monthly basis and they did fluctuate from month to month, although not to a great extent. Mr. Sauser advised members that the department would very much prefer to remain at 90 percent rather than 80 percent, which would allow for a little more flexibility and cushion against changes that the military might decide to implement. MR. SAUSER stated with respect to the third change regarding the viewing of video cassettes, that the department did not allow inmates to view home movies. He noted that the department did allow that several years ago and they realized substantial problems with people bringing in pornographic materials. Mr. Sauser pointed out that the department did restrict video taped movies to those that were above "R" rated. MR. SAUSER advised members that the department did have some concern with the fifth change in the new House committee substitute which related to television rights. He stated that there were medium custody prisoners, and a hand full of minimum custody prisoners at the Spring Creek facility. The department would be faced with a problem if those inmates were denied a television because of the facility they were housed in. Mr. Sauser advised members that the facilities that were currently regarded as maximum security prisoners were the Spring Creek Correctional Center in Seward, Alaska, and sometimes the Lemon Creek Correctional Center in Juneau, Alaska. CHAIRMAN GREEN stated that if the department currently had the flexibility to segregate inmates within an institution, why would the department realize a problem with the amended language. MR. SAUSER explained that his concern was that the lower custody prisoner, who happened to be housed in a maximum security facility, would not be entitled to a television because of his/her location. He provided an example where a close custody prisoner in the Fairbanks facility would be allowed to qualify for a television; however, a prisoner housed at a maximum security facility, who was classified as either medium or minimum custody, would not qualify only because of the institution he/she was housed in. He added that there were not that many televisions in the facilities, and to his knowledge, they had never allowed maximum custody prisoners to have a television in their cell, nor would the department be interested in doing that. Mr. Sauser advised members that the original language was relatively comfortable for the department. Number 1506 REPRESENTATIVE BUNDE asked how often medium or minimum custody level prisoners were placed in maximum security prisons, and how many were now housed in maximum security prisons. MR. SAUSER advised members that currently there were up to four minimum security prisoners housed at the Spring Creek facility to provide for a work crew who could work on the road outside the fence of the facility, and work in the facility store house, things of that nature. He stated that there were a number of medium custody prisoners housed at Spring Creek as well, either because their custody level had been lowered while they were serving their time, or in some cases, depending on bed space, the inmate was moved to Spring Creek, even though classified as a medium custody level prisoner to begin with. Mr. Sauser advised members that would also be true of the Lemon Creek facility, and added that the Lemon Creek Correctional Center also functioned as the Juneau jail. CHAIRMAN GREEN suggested amending the language on page 5, line 17, HCS CSSB 1(JUD), to state, "(d) On and after January 1, 1998, the commissioner may not allow a maximum secured prisoner to possess a television set in the prisoner's cell." SENATOR DONLEY pointed out that that would take them back to the existing language of the Senate version. CHAIRMAN GREEN asked if they went back to the Senate language if that would satisfy the department's concern regarding the television issue. MS. SAUSER advised members that would satisfy the department's concern. CHAIRMAN GREEN moved to amend HCS CSSB 1(JUD), to reinstate the language from the Senate version, CSSB 1(FIN) am, with respect to a prisoner's ability to possess a television in his/her cell. That language read, "On and after January 1, 1998, the commissioner may not allow a prisoner to possess a television in the prisoner's cell if the prisoner is classified as maximum custody under AS 33.30.011(2)." Representative Rokeberg agreed with that. There being no objection, Amendment 1, HCS CSSB 1(JUD) was adopted. CHAIRMAN GREEN asked if Mr. Sauser had other concerns with the new House committee substitute. MR. SAUSER advised members the department did not have other concerns, although the seventh change he would defer to the Department of Law. CHAIRMAN GREEN pointed out the concern regarding the food expenditure being changed to 80 percent and asked Senator Donley if he wanted to address that in the House Finance Committee. SENATOR DONLEY advised members it was up to the committee as to what percentage they wanted to choose. REPRESENTATIVE ROKEBERG advised members he would be more comfortable at the 90 percent level after hearing the comments provided by Mr. Sauser. REPRESENTATIVE CROFT advised members he had the same concern. CHAIRMAN GREEN agreed that the concern expressed was a valid concern. REPRESENTATIVE ROKEBERG moved to amend HCS CSSB 1(JUD) to replace the 80 percent with 90 percent on page 3, line 21, as was in the Senate version. There being no objection, Amendment 2, HCS CSSB 1(JUD) was adopted. CHAIRMAN GREEN took testimony from Mat-Su, and invited comments from Paul Sweet. PAUL SWEET, resident of Palmer, Alaska, agreed with getting rid of all the "frills" in the prison system; however, he stated that once you start taking things away from prisoners, it could be necessary to beef up the inside of the prison system, itself. He advised members that he had reviewed the manning dockets for the Palmer Correctional Center and the Wildwood Correctional Center and there was an average of 12 guards on duty, each shift, for approximately 300 to 500 prisoners. Mr. Sweet expressed that three of those guards would be responsible for the lock-down prisoners, in communications or on the fence line. That would leave 9 guards, of which one might be a Sergeant, which would reduce the guard count to 8, and those 8 guards would be responsible to oversee 400 to 500 prisoners. Mr. Sweet advised members that when they start taking away privileges of the prisoners, he felt it would result in putting some people in harms way. MR. SWEET was curious as to why no one had challenged the Cleary decision, which he felt was the crux of the whole matter, and that the court should get out of the Corrections Department and let corrections run their own business. Number 1831 REPRESENTATIVE BUNDE noted that Mr. Sweet appeared to be familiar with the correction problems, and asked if he was employed by the department. MR. SWEET advised members he was not employed by corrections, but had reviewed all the information sent him and took it from there. He stated with regard to the food issue, that members should contact some of the maximum security facilities as to what they provide their prisoners. Mr. Sweet expressed that he was a "prison chaser" back in the 1950s, and he saw where only one hot meal a day was served and the other two were sea rations and K-rations, and those prisoners managed to survive. He could not understand why the state wanted to keep pace with what the government spent on their troops, they should provide good food to their troops, but that did not mean that the prisoners should get good food. MR. SWEET advised members if the state wanted to reduce the rate of recidivism, prisons should be made so tough that they would never want to go back. He expressed that the state's recidivism rate was 85 percent and Japan's rate was 5 percent. Mr. Sweet stated that the reason Japan's rate was so low was because of the toughness of their prison system. MR. SWEET advised members that an Anchorage prosecutor stated on television that if he could pick up 150 to 200 people in Anchorage, he would solve 95 percent of the crimes committed. Mr. Sweet expressed that he had to call the prosecutor on the phone to see if he had actually heard him correctly. Mr. Sweet noted that that coincided with the state's recidivism rate. Number 1975 REPRESENTATIVE ROKEBERG expressed his appreciation of Mr. Sweet's consideration on the issue, and asked if he would consider the concept of employing chain gangs in the state of Alaska, as a suitable method of punishment. MR. SWEET did not necessarily agree with that; however he would like to see the reinstatement of community custody. He pointed out that the past commissioner had removed that from regulation, and the only way for local people to get prisoner labor was if they had an armed guard, or a halfway house in the community. Mr. Sweet stated that years ago they used to go the prison and get four, or five prisoners every day and take them down to work the ball fields, or whatever they wanted them to do. He stated that if an individual was qualified to be housed in a halfway house, they should be able to be brought into a community from a jail house. REPRESENTATIVE ROKEBERG advised members he would ask the sponsor of the bill to look into that situation. REPRESENTATIVE JAMES noted Mr. Sweet's concern regarding the need to keep prisoners busy, which was a concern of hers as well. She did not necessarily think that taking away the "frills" should eliminate the inmates from having something to do, and that was not what she intended the bill to be doing. REPRESENTATIVE JAMES advised members with respect to the guards, she felt it was necessary to be sure the number of guards was sufficient to be able to protect themselves, as well as the inmates who could be victims of irrational behavior. Representative James advised members that she felt it was necessary to keep the level of stress as low as possible. Number 2148 REPRESENTATIVE ROKEBERG stated that if the bill were to be enacted, it was his understanding through conversations with some of the superintendents, that it would not result in a huge change from current policies in some of the institutions. He asked Mr. Sauser if that would be an accurate characterization. MR. SAUSER advised members that in some facilities, some of the provisions of the bill were already in place; for example, two thirds of the state's facilities had already banned all smoking from the facility, and the two facilities that had not would probably implement a ban this year. He stated that corrections had not, in the past, allowed maximum custody prisoners to have televisions in their cells, which was not actually a change. Mr. Sauser noted also that the department had not allowed "R" rated movies to be shown, which again, was not a change. REPRESENTATIVE ROKEBERG understood that the Lemon Creek Correctional Center banned smoking well over a year ago, and asked Mr. Sauser how that worked. MS. SAUSER advised members that it was not quite that long ago, but the Lemon Creek facility had banned smoking and it appeared to be working fairly well. He stated that generally, what the department had experienced in the facilities where smoking had been banned, was that the energy that used to go into smuggling marijuana into the facilities was now going to smuggling tobacco into the facilities. REPRESENTATIVE ROKEBERG advised members that he had conducted some research of the operation of some other systems in relation to the "no frills", and the areas where there had been the removal of free weights, or weight training, that it would seem to him it would be quite important that alternate physical activities be made available. He asked Mr. Sauser how he would approach that issue of the legislation passed. MR. SAUSER advised members that had been a concern of the department because a lot of physical activities had been with free weights. He stated that some of the facilities did not currently have free weights. Mr. Sauser pointed out that the Lemon Creek facility was removing the last of their free weights this spring, if not already. He expressed that the Lemon Creek Correctional Center developed, in-house, some fixed athletic/exercise equipment for the maximum security section, which seemed to work well. Mr. Sauser stated that some of the facilities did have universal units, and that they try to encourage basket ball, hand ball and soft ball activities in the facilities. REPRESENTATIVE ROKEBERG referenced the issue of community custody brought up by Mr. Sweet, and asked Mr. Sauser to comment on that. MR. SAUSER advised members there still was a community custody classification, but was restricted to people in halfway houses. He believed the rational was that people who could be outside a facility without direct, or immediate supervision, probably ought to be in a halfway house rather than in a hard bed. Mr. Sauser explained that part of what had happened was that the number of people in halfway houses had vastly increased, and those people were still going out and doing community work service. Mr. Sauser expressed that there was no halfway house in Palmer, so the Palmer prisoners who were suitable for that are moved into the CRC beds in Anchorage. MR. SAUSER advised members that the department did have some prisoners out on work crews, noting that historically, the department had tried to provide a work crew for the Alaska Rail Road out of the Palmer Correctional Center. He stated that the number of prisoners available for that type of release had been greatly reduced because they were being moved to halfway houses. Mr. Sauser advised members that the higher custody prisoners would require a greater level of supervision and becomes cost prohibitive. He noted that he was in Arizona recently and a saw a road crew, which included approximately 10 prisoners, who were being watched by four security staff in four separate vehicles. Mr. Sauser pointed out that he would have to think it would be cheaper for the amount of work that was getting done to hire state employees to do that road work. He stated that that amount of supervision was not at all cost effective, as he saw it. Number 2420 REPRESENTATIVE BUNDE pointed out that Mr. Sweet had indicated that a private citizen could "check-out" a prisoner for the day to do whatever the individual wanted done. He asked if what Mr. Sauser was saying was that prisoners were released to governmental organizations, et cetera. Representative Bunde asked if it ever was a policy of the department that a private citizen could request a prisoner for the day. MR. SAUSER advised members the department did, and still do work with both governmental organizations and non-profit organizations, such as the Brother Francis Shelter. He advised members he would never allow a private citizen to "check-out" a prisoner, and did not believe the state of Alaska had ever done that. TAPE 97-44, SIDE B Number 000 REPRESENTATIVE JAMES referred to the issue of banning smoking and tobacco products in prison facilities, and pointed out that people who liked to smoke, but could not, would probably become distressed and asked if any of that type of behavior had come about in the facilities that had already banned smoking. She pointed out that she had spoken with a person involved with mental health issues just recently, and indicated that she was concerned about persons with mental health problems who would be deprived of smoking because it was something that calmed them down, and not having the ability to smoke could cause great distress. MR. SAUSER advised members that of the facilities that had banned smoking, only one facility appeared to be having problems relating to increased tension. He was not certain as to why that particular facility was having a problem, while the others were not. Mr. Sauser advised members there was a mental health unit at the Cook Inlet Pretrial facility, which, in the past had used cigarettes as a behavior modification incentive, and he thought the department had some discomfort about losing the ability to do that. MR. SAUSER stated that generally speaking, the transition seemed to have gone fairly smooth in the facilities, which he felt was partly do to the fact that it was implemented gradually, and the department had also tried to provide counseling services at the same time. Mr. Sauser advised members that smoking was very restrictive in the facilities that still allowed smoking, and the department had cut back on people's liberty to smoke throughout the facilities quite some time ago, so they were somewhat used to some level of restriction. REPRESENTATIVE JAMES asked what the main purpose was for not allowing smoking in the prison facilities. MR. SAUSER advised members there had been complaints from various facilities, and work site to work site, so the department decided to move in the direction of not allowing smoking in the facilities. REPRESENTATIVE JAMES asked if the complaints were from state employees, other prisoners or the general public. MR. SAUSER stated that the department had received complaints from both staff and prisoners. In the case of prisoners, the department's normal response was to attempt to accommodate separate cells for smokers and non-smokers. He stated that he felt it was more the staff complaints, in particular facilities, that resulted in the ban of smoking. Number 190 REPRESENTATIVE ROKEBERG asked if the facility that was realizing problems because of the ban on smoking was "Mike-Mod" at the Cook Inlet Pretrial facility. MR. SAUSER advised members it was the Fairbanks Correctional Center. REPRESENTATIVE ROKEBERG asked what facilities yet allowed smoking. MR. SAUSER advised members that the Palmer Correctional Center allowed smoking outdoors, the Hiland Mountain Correctional Center allowed smoking outdoors, the sentenced facility at the Wildwood facility allowed smoking outdoors, and the Spring Creek facility allowed smoking outdoors and in the individual cell if the roommate did not object. CHAIRMAN GREEN noted that Mr. Sweet had requested to speak again. MR. SWEET advised members that he felt someone was mistaken because years ago they did get prisoners out of the Palmer Correctional Center and take them down town to work in the ball fields, et cetera, and they did not have to be armed or require state supervision. He stated that the facility would just check the individual's drivers license to make sure they were not wanted somewhere. REPRESENTATIVE CROFT moved to report HCS CSSB 1(JUD) out of committee, as amended, with the attached zero fiscal notes and individual recommendations. There being no objection, HCS CSSB 1(JUD) was reported out of committee. Number 293 CHAIRMAN GREEN called a brief at-ease at 2:00 p.m. The meeting reconvened at 2:04 p.m. HB 10 - MANDATORY MEDIATION/DESIGN PROF LAWSUITS CHAIRMAN GREEN advised members they would next consider CSHB 10 (L&C), "An Act requiring mediation in a civil action against an architect, engineer, or land surveyor; amending Rule 100, Alaska Rules of Civil Procedure." As Chairman Green was the prime sponsor of the bill, he asked that his legislative aide, Jeff Logan, explain the bill to the committee. JEFF LOGAN, Legislative Assistant to Representative Joe Green, advised members that HB 10 was an effort to keep people out of court, not by restricting their rights to file an action, but rather by providing an alternative venue, and an alternative method to address their complaint. MR. LOGAN explained that the goal of the bill was to facilitate a mutually agreeable pretrial settlement. He noted that if a plaintiff was seeking damages from a design professional, the case must go to mediation. Mr. Logan noted that there were a few specific, limited exceptions. He stated that unless all the parties to the suit agreed to waive the mediation process they would go to court, which was the first exception. Mr. Logan stated that if the judge assessed the defendant with all the costs of the mediation, that in those cases, the defendant could opt out and go straight to court. MR. LOGAN advised members they envisioned the process as someone going to court and filling out some forms and file them with the court. The case would then be assigned to the judge, and after the defendant is served, a mediator would be appointed by the court. If the parties could agree on the mediator, the judge would appoint that person, and if they did not agree, there was a process where the judge would select three names and they would work between the parties to find one they did like. At that point, the plaintiff and the defendant would meet with the mediator in an informal conference. Prior to this meeting, the parties could provide the mediator with up to a five page brief that explained the situation as they saw it. The mediator could meet individually with the parties after the initial meeting, but they must all meet together the first time. MR. LOGAN pointed out that the meetings were private, the discussions would be confidential, and the mediator could not be called upon in court to discuss what occurred in the meetings. He advised members that there was a process for discovery set out in Civil Rule 26, which was immediate, mandatory discovery. MR. LOGAN advised members if one of the parties felt they could not get what they wanted from the mediation process, they could, at that point go to court. If the parties thought they could succeed with the mediation process, they would continue until they reached a settlement. The plaintiff would file a motion for dismissal and it would be over. MR. LOGAN noted that the question had been posed as to why the bill referred only to design professionals. He advised members that Representative Green had received a letter dated December 12, 1994, from a constituent who asked for some means to separate, and determine, some way to find those actions that really had merit. Mr. Logan pointed out that his office had gone through a process for the past couple of years, and over that time period, no one else had asked to be involved in the type of process offered in HB 10, which was why it only applied to design professionals. MR. LOGAN expressed that the question had also been posed as to whether the bill was addressing tort reform. He stated that the action did not involve, or address in any way, joint or several liability and did not limit awards of economic, or non-economic damages, did not address collateral source, nor did it address punitive damages, or penalize parties or bring frivolous suits. For those reasons Representative Green did not believe it was tort reform, but a civil justice process and procedure reform. Number 525 REPRESENTATIVE BERKOWITZ asked if Mr. Logan had an idea as to the number of mediation cases filed with the court system. MR. LOGAN advised members he could not answer that question because the court system did not maintain a record of those types of actions. He felt the design professionals might be able to address that question. REPRESENTATIVE BERKOWITZ asked how the mediation would go if one design professional was one of several co-defendants. MR. LOGAN advised members they would mediate as a group, and could appoint someone within the group to represent them during the mediation process. REPRESENTATIVE BERKOWITZ stated then, that anytime there was a design professional as a co-defendant, mediation would be available. MR. LOGAN stated that would be correct. REPRESENTATIVE BERKOWITZ disagreed with the assessment that the proposed legislation was not tort reform. He stated that if he understood Mr. Logan correctly, that he said there would be no damage limitation, no punitive damage cap, and no non-economic damage cap. MR. LOGAN advised members that would be correct. CHAIRMAN GREEN pointed out that in mediation, the settlement would be agreed to, not court rendered, which was a lot different than tort reform. Number 600 REPRESENTATIVE JAMES noted the response by Mr. Logan regarding why the bill would effect only design professionals, and asked if they had asked others if they wanted to be included in the proposed legislation. MR. LOGAN advised members they had not. REPRESENTATIVE JAMES asked if Mr. Logan could explain how the costs were paid. MR. LOGAN referred to the Rules of Court, Rule 100, which was what the bill was based on. Mr. Logan advised members that the judge would decide who would pay; however, it was generally born equally by the parties involved. He stated that if for some reason that could not happen, the judge would issue an order stating the defendant, or the plaintiff would be responsible for a higher percentage. CHAIRMAN GREEN noted that if the judge ordered 100 percent of the costs to be born by the defendant, his recourse would then be to opt out of the mediation process. REPRESENTATIVE BERKOWITZ felt it might be a good idea to have the Judicial Council, or some other record keeping group, oversee the process in order that it could be used as a pilot program in the future. If other groups wished to follow suit, the hard data would be available for review purposes as well as a pattern to follow. Number 713 REPRESENTATIVE JAMES agreed with the idea of a pilot program, and asked the Chairman if he would be willing to include some language within the bill that would reflect that, and that other groups would have the opportunity to opt in if they wished. CHAIRMAN GREEN felt that was a possibility, although he noted the bill had passed through another committee who perhaps did not feel it was necessary to cover a wide spectrum of people; however, to consider it a pilot project, in its own right, he felt would be appropriate. REPRESENTATIVE BERKOWITZ felt that rather than have an opt-in clause included within the bill language, the data could be kept for later consideration. CHAIRMAN GREEN pointed out that the minutes of the meeting would reflect the intent of the committee; however, he had no objection to crafting a letter that would state HB 10 would be useful as a pilot project. REPRESENTATIVE BERKOWITZ noted that when discussing tort reform, they had suggested that the Judicial Council maintain records on the issue of settlements. CHAIRMAN GREEN expressed that to require the Judicial Council to do more than review the process might result in a fiscal note because of the additional burden placed on them. REPRESENTATIVE JAMES asked if it would be possible for the design professionals to maintain some type of record that would reflect how the program was working. CHAIRMAN GREEN thought that could be quite possible. Number 854 COLIN MAYNARD, Representative, Alaska Professional Design Council, advised members they were in favor of the bill and that they had been attempting to get some sort of legal system reform because 90 percent of the cases did not go to trial. He explained that the discovery process was very expensive, and a week before the scheduled trial date, they were faced with a business decision of settling for $50,000 or spending $50,000 to defend a case, which was a gamble that the decision would be in your benefit. Mr. Maynard pointed out that there had been enough publicity about adverse decisions that did not make much sense, and the gamble was not a very inviting proposition. MR. MAYNARD advised members the Design Council felt the system presented in HB 10 would work because it would require immediate, mandatory discovery that would provide a good idea of what the case was about. At that point, the parties go to mediation and the case should settle during that process. He noted that it was their understanding that in the state of Washington 80 percent of the cases were settled either during mediation, or shortly thereafter. Mr. Maynard noted that most of the cases would be out of the system at that point; they would not go through the deposition or interrogatory process and would be much less costly. He expressed that the plaintiff would also have an independent reviewer advising as to whether they had a case or not, early on in the process. MR. MAYNARD urged that members vote in favor HB 10, adding that it would also lighten the load on the court system, as well as save money for the design professionals. Number 975 REPRESENTATIVE CROFT advised members he was in support of the proposed legislation, although pointed out that in the letter presented by the Design Council, it stated that over 90 percent of civil suits never went to trial. He stated that he did not understand why that was not considered a success, rather than a failure. Representative Croft advised members that the discovery process provided merits to a case, and he felt that the more cases that could amiably settled, rather than forced to trial, the better. Representative Croft asked why the settlement figure was something that showed the legal system needed modification. MR. MAYNARD stated that the difference to him was that most cases go through a long, drawn out process and cost a lot of money to get no where. He advised members if the process could be cut in half, or more, it would save everyone a lot of money and time. Mr. Maynard stated that the reason cases did not go to trial was because they had reached a business decision that it would be cheaper to not take it further, whether there was merit to the case or not. REPRESENTATIVE BERKOWITZ advised members that normally there was a time-line on a court case, and he could not see any time-line in the mediation process. He stated that if one of the concerns was that the process would be drawn out, that might be addressed in some manner. MR. MAYNARD stated that the bill reflected that mediation would take place within a certain amount of time after the mandatory discovery process was completed. He added that that might be handled by regulation; however, thought it was included within the bill language. MR. LOGAN explained that the time-line language was not included in the bill, but according to the bill drafter, could be found in the Court Rules to the extent that there were time-lines and date triggers in Rule 100 Rule 26, and other Court Rules. REPRESENTATIVE BERKOWITZ advised members that was one of the problems, as he saw it, that you could protract those proceedings and essentially bankrupt either the plaintiff or the defendant, which would not expedite the process at all. REPRESENTATIVE JAMES pointed out that she was comfortable that the court would have time-lines on a mediation procedure and did not feel it opened up any kind of door. REPRESENTATIVE BERKOWITZ wanted to review Court Rule 26. CHAIRMAN GREEN called a brief at-ease at 2:25 p.m., and reconvened the meeting at 2:28 p.m. REPRESENTATIVE BERKOWITZ stated that after reading Rule 26, his concern was satisfied. REPRESENTATIVE BUNDE moved to report CSHB 10(L&C) out of committee with individual recommendations, and the attached zero fiscal note. There being no objection, CSHB 10(L&C) was reported out of committee. Number 1272 ADJOURNMENT There being nothing further to come before the committee, Chairman Green adjourned the House Judiciary Committee meeting at 2:30 p.m.