Legislature(1997 - 1998)

02/11/1998 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                 February 11, 1998                                             
                     1:10 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                                                             
                                                                               
HOUSE JOINT RESOLUTION NO. 44                                                  
Proposing amendments to the Constitution of the State of Alaska                
relating to redistricting of the legislature.                                  
                                                                               
     - MOVED CSHJR 44(JUD) OUT OF COMMITTEE                                    
                                                                               
HOUSE BILL NO. 267                                                             
"An Act relating to domestic violence and sexual assault; and                  
providing for an effective date."                                              
                                                                               
     - RESCINDED ACTION OF 2/9/98; MOVED CSHB 267(JUD) OUT OF                  
       COMMITTEE                                                               
                                                                               
HOUSE JOINT RESOLUTION NO. 5                                                   
Proposing an amendment to the Constitution of the State of Alaska              
relating to freedom of conscience.                                             
                                                                               
     - HEARD AND HELD                                                          
                                                                               
HOUSE BILL NO. 252                                                             
"An Act relating to criminal records; relating to notice about and             
registration of sex offenders and child kidnappers; and amending               
Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure."                    
                                                                               
     - HEARD AND HELD                                                          
                                                                               
HOUSE BILL NO. 273                                                             
"An Act relating to notification of the public concerning sex                  
offenders."                                                                    
                                                                               
     - HEARD AND HELD                                                          
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL:  HJR 44                                                                  
SHORT TITLE: REAPPORTIONMENT BOARD & REDISTRICTING                             
SPONSOR(S): REPRESENTATIVES(S) PORTER, MULDER, Dyson, Green                    
                                                                               
Jrn-Date    Jrn-Page           Action                                          
01/12/98      2020     (H)  PREFILE RELEASED  1/9/98                           

01/12/98 2020 (H) READ THE FIRST TIME - REFERRAL(S)

01/12/98 2020 (H) JUDICIARY, FINANCE

01/14/98 2048 (H) COSPONSOR(S): DYSON

01/23/98 2121 (H) COSPONSOR(S): GREEN 02/06/98 (H) JUD AT 1:00 PM CAPITOL 120 02/06/98 (H) MINUTE(JUD) BILL: HB 267 SHORT TITLE: DOMESTIC VIOL. & SEXUAL ASSAULT DISCLOSURE SPONSOR(S): REPRESENTATIVES(S) KELLY, Dyson Jrn-Date Jrn-Page Action 04/30/97 1409 (H) READ THE FIRST TIME - REFERRAL(S) 04/30/97 1409 (H) JUDICIARY 02/02/98 (H) JUD AT 1:00 PM CAPITOL 120 02/02/98 (H) MINUTE(JUD) 02/09/98 (H) JUD AT 1:00 PM CAPITOL 120 02/09/98 (H) MINUTE(JUD BILL: HJR 5 SHORT TITLE: CONSTIT AMNDMNT: FREEDOM OF CONSCIENCE SPONSOR(S): REPRESENTATIVES(S) MARTIN Jrn-Date Jrn-Page Action

01/13/97 22 (H) PREFILE RELEASED 1/3/97

01/13/97 22 (H) READ THE FIRST TIME - REFERRAL(S)

01/13/97 23 (H) STATE AFFAIRS, JUDICIARY, FINANCE 02/25/97 (H) STA AT 8:00 AM CAPITOL 102 02/25/97 (H) MINUTE(STA) 02/27/97 (H) STA AT 8:00 AM CAPITOL 102 02/27/97 (H) MINUTE(STA)

01/20/98 (H) STA AT 8:00 AM CAPITOL 102

01/20/98 (H) MINUTE(STA)

01/27/98 (H) STA AT 8:00 AM CAPITOL 102

01/27/98 (H) MINUTE(STA)

01/30/98 2176 (H) STA RPT 5DP 1DNP

01/30/98 2177 (H) DP: JAMES, IVAN, DYSON, VEZEY, HODGINS

01/30/98 2177 (H) DNP: ELTON

01/30/98 2177 (H) FISCAL NOTE (GOV)

01/30/98 2177 (H) REFERRED TO JUDICIARY 02/11/98 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 252 SHORT TITLE: REGISTRATION OF SEX & CHILD OFFENDERS SPONSOR(S): REPRESENTATIVES(S) RYAN Jrn-Date Jrn-Page Action 04/16/97 1122 (H) READ THE FIRST TIME - REFERRAL(S) 04/16/97 1122 (H) JUDICIARY, FINANCE 05/05/97 (H) JUD AT 1:30 PM CAPITOL 120 05/05/97 (H) MINUTE(JUD) 05/08/97 (H) JUD AT 8:30 AM CAPITOL 120 05/08/97 (H) MINUTE(JUD) 10/24/97 (H) JUD AT 9:00 AM ANCHORAGE LIO 10/24/97 (H) MINUTE(JUD) 10/24/97 (H) MINUTE(JUD) 02/04/98 (H) JUD AT 1:00 PM CAPITOL 120 02/04/98 (H) MINUTE(JUD) 02/11/98 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 273 SHORT TITLE: NOTIFY COMMUNITY ABOUT SEX OFFENDERS SPONSOR(S): REPRESENTATIVES(S) MASEK Jrn-Date Jrn-Page Action 05/08/97 1656 (H) READ THE FIRST TIME - REFERRAL(S) 05/08/97 1656 (H) JUDICIARY 10/24/97 (H) JUD AT 9:00 AM ANCHORAGE LIO 10/24/97 (H) MINUTE(JUD) 10/24/97 (H) MINUTE(JUD) 02/04/98 (H) JUD AT 1:00 PM CAPITOL 120 02/04/98 (H) MINUTE(JUD) 02/11/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER TIMOTHY SULLIVAN, JR., Legislative Assistant to Representative Eldon Mulder Alaska State Legislature Capitol Building, Room 501 Juneau, Alaska 99801 Telephone: (907) 465-2647 POSITION STATEMENT: Provided information on behalf of joint sponsor of HJR 44. REPRESENTATIVE TERRY MARTIN Alaska State Legislature Capitol Building, Room 502 Juneau, Alaska 99801 Telephone: (907) 465-3783 POSITION STATEMENT: Sponsor of HJR 5. JANET OATES, Director Marketing and Government Relations Providence Health System P.O. Box 196604 Anchorage, Alaska 99519 Telephone: (907) 261-4943 POSITION STATEMENT: Testified on HJR 5; supported constitutional amendment on conscience but had suggestions. JENNIFER RUDINGER, Executive Director Alaska Civil Liberties Union P.O. Box 201844 Anchorage, Alaska 99520 Telephone: (907) 258-0044 POSITION STATEMENT: Testified in opposition to HJR 5. TED DEATS, Legislative Secretary to Representative Terry Martin Alaska State Legislature Capitol Building, Room 502 Juneau, Alaska 99801 Telephone: (907) 465-3783 POSITION STATEMENT: Testified as citizen of Alaska on HJR 5. DOROTHY McDOWELL 9499 Moraine Way Juneau, Alaska Telephone: (907) 789-7627 POSITION STATEMENT: Testified in support of HJR 5. SID HEIDERSDORF Alaskans for Life P.O. Box 020658 Juneau, Alaska 99802 Telephone: (907) 789-9858 POSITION STATEMENT: Testified in support of goals of HJR 5, but suggested it be limited to life issues. TED BACHMAN, Captain Division of Alaska State Troopers Department of Public Safety 5700 East Tudor Road Anchorage, Alaska 99507 Telephone: (907) 269-5650 POSITION STATEMENT: Testified on HB 252. PAUL SWEET P.O. Box 1562 Palmer, Alaska 99645 Telephone: (907) 745-2242 POSITION STATEMENT: Testified on HB 252. SUSAN G. WIBKER, Assistant Attorney General Human Services Section Civil Division (Anchorage) Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Provided suggestions on HB 252, on behalf of Anne Carpeneti of the Criminal Division. SHIRLEY MARSHALL P.O. Box 406 Tok, Alaska 99780 Telephone: (907) 883-5311 POSITION STATEMENT: Provided suggestions on HB 273. ACTION NARRATIVE TAPE 98-15, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:10 p.m. Members present at the call to order were Representatives Green, Bunde, Porter, Rokeberg and Berkowitz. Representative Croft arrived at 1:13 p.m. HJR 44 - REAPPORTIONMENT BOARD & REDISTRICTING CHAIRMAN GREEN announced the first item of business would be a revisit of HJR 44, proposing amendments to the Constitution of the State of Alaska relating to redistricting of the legislature. Number 0042 REPRESENTATIVE BRIAN PORTER, joint sponsor of HJR 44, advised members that he, his staff member Jim Sourant, joint sponsor Representative Mulder, and Representative Mulder's staff member, Tim Sullivan, had gone over comments and suggestions from the previous meeting. He stated the belief that the new proposed committee substitute responds to most of those concerns. Number 0090 REPRESENTATIVE CON BUNDE made a motion to adopt version 0-LS0528\M, dated 2/9/98, as a work draft. There being no objection, it was so ordered. Number 0111 REPRESENTATIVE PORTER went through Version M to point out how they had amended the original resolution. On page 2, line 24, language is added, although it is basically returning to the language of the original constitution. Representative Porter explained, "It's placed here and in the article above, so as to establish, as per federal court rule, that the first thing in reapportionment is the equal distribution of the population into the election districts, and after that, as it indicates, that we can look at compactness and contiguousness and relatively integrated socioeconomic areas." REPRESENTATIVE PORTER referred to page 3, line 3, which adds the language, "and during the tenure of", to the prohibition of members of the apportionment board. He commented, "Having been state employees, obviously, they shouldn't be a state employee while they're in that capacity, either." REPRESENTATIVE PORTER referred to page 3, line 16. He explained, "Just to make clear that the board should stay in place until all of their work is done, we're saying that this article has been resolved after final remand or affirmation, not upon, so that they do have to correct their work and reissue it after it's remanded from a court." REPRESENTATIVE PORTER referred to page 3, line 23. He said if one body organizes as a whole, which the Senate did once with a 20-member "majority basically would elect their minority appointing authority. Number 0311 REPRESENTATIVE PORTER continued, "At the request of the court, on line 4 of page 4, if the four members appointed by the respective members of the legislature could not come up with a fifth, we have indicated now that the chief justice, by himself or herself, would appoint that member, rather than a three-way grouping of the speaker and the minority leader and the chief justice." Number 0346 REPRESENTATIVE PORTER referred to page 5, line 7. He said language has been changed to clarify that the 90-day period for action starts the later of the appointment process being culminated or the issuance of the decennial information; both must be in place. REPRESENTATIVE PORTER said on line 20, they had taken out, "except as provided in (c) of this section," because (c) of this section has been deleted. This basically returns to existing constitutional language which provides that any citizen can challenge the appropriateness of the reapportionment plan, under the process now in place in the constitution. The only significant change is on line 21, that upon a final judicial decision that a plan is invalid, the case shall be returned to the board for correction and development of a new plan. The plan will be completed, finally, by the reapportionment board and not by a master or by some level of the court. Number 0483 REPRESENTATIVE NORMAN ROKEBERG questioned the reference to line 21. CHAIRMAN GREEN said it is actually line 18. REPRESENTATIVE PORTER added that it begins on line 18 but that he himself was reading off another version which had been corrected. He acknowledged the line numbers may be off. Number 0525 REPRESENTATIVE PORTER advised members that those are the changes the sponsors had discussed, which he suggested reflect even Mr. Baldwin's concerns about the complexity of the appeal process, for example. CHAIRMAN GREEN expressed appreciation for the efforts and said it had taken care of his own concerns and the concerns of the committee. He asked whether anyone felt otherwise, or whether there were questions about Version M. Number 0565 REPRESENTATIVE ROKEBERG asked Representative Porter to briefly go through how the appeal process would change. REPRESENTATIVE PORTER explained that the board is required to come up with a plan in 30 days and then have hearings on the plan or plans that they have developed, and to present a proclamation at the end of 90 days, which would constitute their reapportionment plan. If a citizen feels that plan is in error, or has a constitutional challenge to the plan, it is brought before the superior court and that issue is litigated at the trial level. Representative Porter noted that they had eliminated the necessity of ever considering litigation at the supreme court level. REPRESENTATIVE PORTER continued. If it is returned to the board by the superior court for correction, without an appeal of that decision - which could be appealed by either side - they would issue a corrected plan. If it were appealed to the supreme court and that court agreed there had been an error, that court would return it to the board for correction and reissuance. REPRESENTATIVE PORTER stated, "Either court would maintain concurrent jurisdiction, so that if they were not satisfied with the final plan, that they send back an instruction to do 'A,' and the plan came out with 'B,' then obviously it would not be in conformance with the court order, and they would be asked to reevaluate their position." He said that is the current constitutional provision, with the exception of specifically saying that it should be returned for correction. Number 0716 REPRESENTATIVE ROKEBERG suggested if they go through the full appeal process to the supreme court, and it is remanded to the apportionment board, it could be a perpetual motion machine. He asked whether there is any point at which they can stop the process. CHAIRMAN GREEN replied, "None, other than the fact that the remand, the supreme court would suggest what the problem was, and it would be up to the board to fix that." He said it is no different from the way it is now, except for who fixes it. REPRESENTATIVE ROKEBERG asked what would prohibit a citizen from bringing another suit and what would happen then. Number 0794 REPRESENTATIVE PORTER pointed out that there is language in the constitution, which they have retained, that the suits have to be filed within a certain length of time after issuance of the proclamation. He directed members' attention to page 5, line 26, which says, "Application to compel the board to perform must be filed not later than thirty days following the date that the duty is required to be done under this article." REPRESENTATIVE ROKEBERG requested a translation. REPRESENTATIVE PORTER explained, "Well, it means that ... if the reapportionment board has 90 days to issue a plan and they do so, within 30 days of that issuance, if anyone has a contention that ... the plan is in error, they must file their case." Number 0872 REPRESENTATIVE ROKEBERG referred to his original question and asked whether someone couldn't file an action on a second plan developed by the board. CHAIRMAN GREEN said not according to the way this is written. REPRESENTATIVE PORTER said not according to current constitutional provisions. Number 0903 REPRESENTATIVE BUNDE suggested that although of course someone could file a case, if the court found the challenge invalid, it would stop the cycle. Number 0941 REPRESENTATIVE PORTER replied, "I may be using the wrong legal term, but I think if someone filed after the time had elapsed for filing a case, much like someone filing a tort case after the statute of limitations had run out, they would be told, 'You don't have standing.'" CHAIRMAN GREEN commented, "I would think if they tried to exercise some thought that this plan now is changed, and so I should have 30 days from the new plan, ... I don't think that would read well." Number 0971 REPRESENTATIVE ROKEBERG asked whether Chairman Green was suggesting there is only one opportunity for public appeal. CHAIRMAN GREEN replied that as he reads it, a person has 30 days after the final plan is adopted. REPRESENTATIVE ROKEBERG asked whether that 30-day run is just for the first plan, not the second plan. CHAIRMAN GREEN said that is what he is suggesting. REPRESENTATIVE ROKEBERG said it is not clear from the language. CHAIRMAN GREEN noted that attorneys were present. Number 1011 REPRESENTATIVE ETHAN BERKOWITZ said he was also somewhat confused about the time line. He stated, "It would seem to me if someone has a complaint against a second plan, that oughtn't be precluded by language in the bill." REPRESENTATIVE ROKEBERG restated that he doesn't see how they can restrict the right to file an action on a second plan. For example, what if the second plan is worse than the first? Number 1089 REPRESENTATIVE PORTER said he could see, as often happens when trying to explain something better, that it has become more ambiguous. Referring to Section 9, he specified that it is the intent that there be one period for filing suit, and that is after the original proclamation. He suggested that the existing language probably says it better than what they had tried to add, with one exception. He stated, "If members would like, we could strike, 'thirty days following the,' strike the new language, but add the old language, only amended to say, 'expiration of the two' -- 'of the 90-day period specified in this article,' which refers up, then, to line 7, 'No later than 90 days after the board has been appointed and the decennial census has been released, the board shall adopt a final reapportionment plan.'" Number 1154 REPRESENTATIVE ROKEBERG asked whether there is any case law on that particular point of the existing constitutional interpretation. REPRESENTATIVE PORTER replied, "I don't think it's ever been challenged, because it was pretty clear before we changed it. So, maybe we should return to the language we had." REPRESENTATIVE ROKEBERG expressed concern about the public's understanding. Number 1172 REPRESENTATIVE PORTER indicated he wanted to make an amendment. CHAIRMAN GREEN noted that Representative Bunde had a question. Number 1186 REPRESENTATIVE BUNDE said, "You've got the 30 days; someone files a challenge; the superior court - supreme court, one or the other - remands it back to the board. ... Is the board required to come out with the same plan? Or can it attempt to solve the problem by creating a whole new plan?" REPRESENTATIVE PORTER replied that it can do either, but generally the court's instructions are quite specific. Whatever the new plan might be, the instructions would have to be met. He noted that the court retains jurisdiction. CHAIRMAN GREEN suggested that any additional litigation would be on the change, rather than on the total plan, unless they had changed the total plan. Number 1240 REPRESENTATIVE BUNDE stated his understanding that the courts are not to draw the plan. If there is a plan and a challenge to it, and the courts find in favor of the challenge, the courts would send the plan back, with instructions to come up with a plan that addresses these challenges. He stated, "Now, if the court says you must do it in this fairly narrow confine, then they are essentially drawing the plan, based on the original plan, and preclude the board from coming up with a whole new solution. Is that correct?" REPRESENTATIVE PORTER responded that they are talking about hypotheticals, so it is hard to say. He explained that generally a challenge would be made that some area or group was disadvantaged somehow by drawing a line. If that challenge was sustained by the court, they would so indicate, and that line would have to be moved so as to remove the disadvantage. Representative Porter stated, "And I would suspect that the court would give guidelines on what that movement should be. It's hard to imagine that an entire new plan would be developed to try to correct something like that." Number 1325 REPRESENTATIVE BUNDE acknowledged they may be debating hypotheticals. However, there may be a domino effect from moving one line. He asked whether that constitutes a whole new plan or is simply reacting to the court's question. Number 1350 CHAIRMAN GREEN suggested that if that change adversely affected someone else, he supposed they could bring it up. REPRESENTATIVE BUNDE referred to Representative Rokeberg' concerns about a perpetual cycle, and he said, "I think the cycle goes until the courts say, 'This is a legitimate plan.' And if it takes three cycles, that's what it takes." CHAIRMAN GREEN asked what Representative Porter's suggestion was. Number 1376 REPRESENTATIVE PORTER answered that first of all, that possibility is in the constitution right now. He stated, "I guess the additional things in this bill that serve to address those kinds of extremely unusual eventualities are, one, unlike the current language, we leave in place the existing reapportionment plan, so that if litigation extends past the point where you have to start printing ballots and that sort of thing, they will be printed based on the previous plan. That's just not addressed currently in the constitution, and that's one of the reasons that the court took it upon itself to remand the third time to a superior court, rather than to the reapportionment board. But there is an accommodation now for the other plans, so that that wouldn't mess up ... an election." REPRESENTATIVE PORTER said it would be his guess that if the court issued an order and remanded it to the board, and the board wrote a plan that didn't conform to that order, the court of course would retain jurisdiction and require them to redo it. But this provides that the four members of the apportionment board that were appointed by the legislative representatives can be changed for no cause. He suggested that says, okay, if you guys can't get it right, we'll find someone that can. Number 1482 REPRESENTATIVE ROKEBERG responded that when it is remanded to the board, whatever comes out of that board is the new plan. He asked whether that wouldn't also be subject to challenges by citizens. REPRESENTATIVE PORTER answered that by the current constitutional provisions, no. REPRESENTATIVE ROKEBERG indicated that doesn't seem apparent, the way it is drafted, which is why he'd asked whether there is any case law. Number 1510 REPRESENTATIVE PORTER agreed the language they had added is confusing to that point. He suggested if the desire is to only have that one period, they shouldn't use the language on page 5, lines 28 and 29. Instead, they should return to the original language, deleting the need for two 90-day periods, because they had amended that to only one 90-day period. REPRESENTATIVE ROKEBERG asked whether the two 90-day periods might have meant there would be two cycles. REPRESENTATIVE PORTER replied that this was language to conform with the way it had been worded previously. REPRESENTATIVE ROKEBERG again suggested that when a second or third plan comes out of the board, there would be a right to file a suit at that point. Number 1595 REPRESENTATIVE PORTER replied that quite frankly, the way it is written, he thinks that is what it says. There is a requirement for the board to issue a corrected proclamation after remand from the court; that is a duty. "And by the way this reads now, which I don't think was intended, that would allow another 30-day period for a suit," he concluded. REPRESENTATIVE ROKEBERG asked for confirmation that it is the sponsors' intent to not allow that. REPRESENTATIVE PORTER affirmed that. He suggested going back to the original language. Number 1634 REPRESENTATIVE ROKEBERG referred to page 6, line 1. Noting that the word "final" appears on lines 1 and 7, relating to adoption of the final plan by the board and a final judicial decision, he asked what the intent is. REPRESENTATIVE PORTER said line 7 indicates the final judicial decision could be coming out of the superior court if it is not appealed; if it is appealed, it could come out of the supreme court. REPRESENTATIVE ROKEBERG asked whether it speaks to the issue they had just been discussing. REPRESENTATIVE PORTER said no. Number 1698 REPRESENTATIVE PORTER made a motion to adopt Amendment 1, "which will be the deletion on page 5, line 28, of the phrase, 'date that the duty is required to be done under', and reinserting the phrase, 'expiration of the 90-day period specified in this article.'" CHAIRMAN GREEN stated, "So, you're taking out 'EITHER OF' and 'TWO' in the bolder print." REPRESENTATIVE PORTER said yes. REPRESENTATIVE ERIC CROFT added, "'S' after 'PERIODS'." REPRESENTATIVE PORTER stated, "And an 'S'." Number 1750 CHAIRMAN GREEN asked whether there was any objection. Number 1781 REPRESENTATIVE BERKOWITZ indicated he wanted to understand the time line. He said the census comes out, this board comes together, and once the board comes together, it has 90 days to come up with a plan. REPRESENTATIVE PORTER referred to line 7. He said that no later than 90 days after the board has been appointed and the decennial population has been released, the board shall adopt a final reapportionment plan. So, the 90 days wouldn't run if the census was out but the board wasn't together, and it wouldn't run if the board was together and the census didn't come out. Number 1822 REPRESENTATIVE BERKOWITZ suggested the one fixed date in this is the release of the census report. CHAIRMAN GREEN asked whether Representative Berkowitz was thinking they may have trouble forming the board, then pointed out the likelihood that the board will be convened well ahead of that. REPRESENTATIVE PORTER said under a normal scenario, the board would be in place and have 30 days to set up the procedures that they would follow when they get the information, including getting the computer system in place that will take the data and apply it to the state, for example. Number 1853 REPRESENTATIVE BERKOWITZ said he was thinking of an example where the minority leader sees a census report that comes out as being very unfavorable, resulting in a reduced minority. He asked whether someone on the board could prevent the board from convening. Number 1872 REPRESENTATIVE PORTER answered that anyone can sue the board for an error or for failing to perform a duty. If people boycott meetings, there could be a suit or, more expeditiously, the legislature could reappoint. CHAIRMAN GREEN asked for confirmation that Representative Berkowitz wasn't talking about someone feeling there was an error in the census. REPRESENTATIVE BERKOWITZ said not an error in the census, but there is a possibility that for a political advantage, one side or the other may refuse to convene and make it as difficult as possible for the board to come together. Number 1910 TIMOTHY SULLIVAN, JR., Legislative Assistant to Representative Eldon Mulder, Alaska State Legislature, spoke on behalf of the joint sponsor. He stated that one of the key elements in this is that any three members of the board can hold meetings and continue actions as the board. If one member decides not to participate, the other four members of the board can continue. REPRESENTATIVE BERKOWITZ posed a situation where the Democrats don't appoint the two people to the board. MR. SULLIVAN said they are required to do it within 15 days of forming leadership for the legislature, under HJR 44. REPRESENTATIVE BERKOWITZ asked what would happen if no leadership formed. MR. SULLIVAN replied, "Well, you have to have a speaker and you have to have president of the Senate in order to do any business in the legislature." REPRESENTATIVE BERKOWITZ responded, "But you don't have to have a minority leader." Number 1953 REPRESENTATIVE PORTER replied that there will be a constitutional requirement for the minority party, if it is an organization of the whole, or the minority organization to elect a minority appointing authority. If the minority couldn't agree on a leader for some reason, it wouldn't preclude their requirement to elect a minority appointing authority; it is a constitutional requirement. Representative Porter indicated he doesn't believe a minority group, no matter what the political party, would fail to meet the constitutional mandate. REPRESENTATIVE BERKOWITZ noted that they might not wind up with a speaker for a while, either. Number 2001 REPRESENTATIVE CROFT pointed out that the fifth member is appointed by the chief justice of the supreme court. There would be three if one group failed to appoint. MR. SULLIVAN said they have 15 days to appoint those members, and then five days in which the four members are supposed to pick a fifth member. If the four members don't get together, and don't pick a fifth member, then the chief justice of the supreme court appoints the fifth member. REPRESENTATIVE PORTER added that if the minority organization of either body, for some reason, couldn't come up with a minority leader, they would, by constitutional requirement, have to come up with a minority appointing authority for the purpose of appointing the member of the board. Number 2085 REPRESENTATIVE PORTER discussed the present system. In terms of timing, to get this whole process done in time for the next election, constitutionally the governor as the appointing authority has 90 days to look at and change, if so desired, the reapportionment plan that the board came up with. Representative Porter noted that that had happened ten years before. He stated, "There's one 90-day period that exists in the constitution now that we're kind of taking out of here, which I cannot imagine a 90-day period going by that the legislature would not be organized." He acknowledged there could be some interesting discussion for a few weeks. REPRESENTATIVE ROKEBERG suggested this mandate would help accelerate that organization, with the responsibility to meet it both practically and constitutionally. Number 2147 REPRESENTATIVE ROKEBERG referred to page 5, line 27, which deletes "his reapportionment duties." He suggested the sentence would read better if they inserted "its duties." CHAIRMAN GREEN stated his opinion that it reads as well either way. Number 2217 CHAIRMAN GREEN asked whether there was any objection to adopting Amendment 1. Hearing none, he announced that it was adopted. Number 2221 REPRESENTATIVE CROFT referred to page 4. Noting that the four legislative appointees can be removed with or without cause, he commented, "That makes sense to me, I guess; it may be problematic, but I understand why it's there." He pointed out that on page 4, line 16, however, the chair of the board may be removed only for good cause shown by a majority vote of the group. REPRESENTATIVE CROFT said "good cause" is a term of art defined in case law. A judge may rule on whether someone was terminated for good cause, for example. He asked whether it is Representative Porter's view that if three board members terminated someone, that person could go to court and claim it was not for good cause but for bad cause or a partisan cause, and get relief. He then asked, "Or is good cause really sort of superfluous there, we say, 'may be removed by a majority vote'?" REPRESENTATIVE PORTER replied that he thinks the person would have standing to make that claim. Number 2265 REPRESENTATIVE CROFT responded that normally, good cause has to do with performance of one's duties, outside of politics, sexual harassment, or other things which are "bad cause." He asked whether they could only say here that someone did a bad job, or whether they could replace someone for a larger, political reason. REPRESENTATIVE PORTER said he would guess that either of those scenarios could reach the level of "good cause shown," depending on the individual facts as applied to the case law. Number 2310 REPRESENTATIVE BUNDE made a motion to move HJR 44, Version M [0-LS0528\M, 2/9/9 recommendations. REPRESENTATIVE CROFT and REPRESENTATIVE BERKOWITZ objected. Number 2326 REPRESENTATIVE BERKOWITZ expressed appreciation for the effort to reform how redistricting or reapportioning occurs, doing away with some of the gerrymandering that was so popular last time. However, he had two overarching problems with this. The first problem is stylistic: He believes they should be parsimonious with constitutional language, that constitutional amendments should be short and that the constitution should be more of a general document. REPRESENTATIVE BERKOWITZ said the second problem is more substantive. What they are seeing here is a shift of power from the executive branch to the legislative branch, without any real showing that it will benefit the fairness of elections. Representative Berkowitz stated, "And I can give you a hypothetical. You're going to have four senior members of the legislature sitting together in a room, and they're going to be redistricting. And it seems to me that they would be hard-pressed not to succumb to the temptation of giving themselves safe districts, and maybe a few ...." CHAIRMAN GREEN said this doesn't say representatives. REPRESENTATIVE ROKEBERG added that those representatives just have appointing power. Number 2417 REPRESENTATIVE BERKOWITZ said, "But if ... you're in a position where the senior members of the House and the senior members of the Senate are, either themselves or through their deputies, going through a redistricting, the temptation is going to be hard for them to resist not to carve out safe districts for themselves and maybe for a couple of selected lieutenants. And that kind of temptation doesn't do much to ensure public confidence in the process. And I think if there were some insulation that kept the legislature from being involved in picking the reapportionment, this idea, the idea of redoing how we redistrict, might have more strength." Number 2443 CHAIRMAN GREEN responded that the governor, under the present system, chooses the members. He asked, "Wouldn't it ... seem to you that that would be more of a temptation for a single appointer to get gerrymandering than it is by a group made up of equal numbers of both sides?" REPRESENTATIVE BERKOWITZ replied, "I'm not saying that the way it's done now arrives at a perfect solution. And there's some advantages of it. I think, generally speaking, we've achieved a pretty good balance in terms of checks and balances here in this state. We have, I would venture to say, more personal freedoms than any other state I've ever been in [ends mid-speech because of tape change]." TAPE 98-15, SIDE B Number 0006 REPRESENTATIVE BERKOWITZ mentioned that there are many options, including appointing independent panels somewhat like the judicial council. Number 0016 REPRESENTATIVE PORTER responded that while the weight of this constitutional amendment is substantial, because the change from one system to another affects many sections of the constitution, he believes it is fairly simply stated in what this constitutional amendment would amount to: the shift from the governor appointing the board to a bipartisan representation of the legislature appointing the board. REPRESENTATIVE PORTER stated, "The benefit, I would think, as the chairman indicated, would be to eliminate that temptation. If you have the absolute power, there is absolute temptation. If you don't have the absolute power, there isn't absolute temptation. And, as a matter of fact, there's a bar to the temptation, if they had it, because it's a bipartisan group. The members of the legislature, to make the record perfectly clear, are not going to be sitting down and drawing up a plan. They are appointing folks, recognizing that the political opposite is appointing folks, also. I think it would be in everybody's best interest to appoint folks that would do an objective job in the first place." REPRESENTATIVE PORTER pointed out that of the other states, none allows the governor to appoint the reapportionment board without some check, and only Maryland allows the governor to make that appointment but requires legislative confirmation of those appointments. He suggested there would be lack of balance on the board, however, if the governor and the majority of the legislature belonged to the same political party. Number 0116 REPRESENTATIVE PORTER noted that California, Washington, Hawaii, Montana and a couple of other Western states have plans similar to this. He said most states have plans that are in this area, but this is probably closer to those Western states that have more recently adopted this kind of plan. Number 0136 CHAIRMAN GREEN suggested this actually gives the minority a disproportionate advantage. It wouldn't be heavily weighted in favor of one party or another. Number 0148 REPRESENTATIVE BERKOWITZ pointed out that they are ignoring the 50-plus percent while I know partisanship is almost necessarily a part of how we perform down here, I don't think we need to go about redrawing our district lines in a partisan way. I think there's got to be something that's above partisan politics." REPRESENTATIVE BERKOWITZ restated that the temptation to protect leadership slots or districts will be very hard to resist. When the leadership has the opportunity to pick individuals, he said, that is really the same position that the governor is in now. Even accepting the premise that it is better to have many people making a selection than just one, it will be a little less skewed than now but it will be a balanced skewing. He said he believes they must look at ways of drawing lines that provide fairness for everybody. Number 0197 CHAIRMAN GREEN asked why it is skewed if both parties get to appoint two members and mutually agree to a fifth member, or if they can't agree, it is done by the chief justice. REPRESENTATIVE BERKOWITZ replied, "Well, if, for example, ... you and I were to appoint people, your guy might say, 'Leave Joe's seat alone,' and my guy might say, 'Leave Ethan's seat alone,' and those two are now off the table. And so, our seats ... are thereby protected. But my guy might also say, 'We want to take care of Eric Croft at the same time, but there's a couple of seats we're willing to put into play.' And that's what you wind up doing, is negotiating which seats are going to go into play." CHAIRMAN GREEN suggested the other board members may disagree, however. He asserted that it is balanced, not skewed. REPRESENTATIVE BERKOWITZ replied that for anything that goes on in a closed room, it is hard to say what will happen. Number 0241 REPRESENTATIVE BUNDE said the check and balance here is that if it is skewed, people will be standing in line to file suit, and the court will act. He noted that they are talking about a worst-case scenario, suggesting that there will be people with good public policy intentions. He restated that there is the check by the courts against gerrymandering. CHAIRMAN GREEN pointed out that there are guidelines, also. Number 0276 REPRESENTATIVE CROFT said he continues to object to the change from counting residents to counting nonresidents under the decennial census, although he acknowledges there are administrative efficiencies from that. He said that was an objection he had to the prior reapportionment schedule. REPRESENTATIVE CROFT noted that there are only three branches of government, and this is a tough, important, contentious area that has been abused in the history of the nation and of the state. He said it is safe to say the legislature should not be in charge of it alone. This resolution has searched for a tie-breaker and found it in the court system, which people in the state think of as impartial. However, Representative Croft said, he continues to have a number of concerns about involving the court. REPRESENTATIVE CROFT cited as an example the appointment of Justice Eastaugh by then-Governor Hickel. He stated, "I think as long as we've got the court doing its job, deciding cases on the merits, what'll happen was what happened when Hickel appointed Eastaugh. There was not a partisan uprising on it. ... There was no attempt to get him out of office when his first confirmation came up .... We knew him to be a qualified attorney, would make a qualified judge, and a loyal Republican." REPRESENTATIVE CROFT said that is all right as long as the chief justice's job is interpreting the law and deciding the facts. However, if the job includes appointing the fifth and deciding member of the reapportionment board, Representative Croft said he thinks it makes a significant difference what happens. He stated, "In that situation, as important as this deciding vote is and this reapportionment process is for us in this body, we prefer an incompetent Democrat appointed than a competent Republican, and I would submit you would promote the opposite view, because it's so vital. And if that person has a legitimate shot, one in five and a little more than that, at being the chief justice when this rolls around, I want to make sure ... that it's a Democrat." Number 0393 REPRESENTATIVE CROFT referred to the role of tie-breaker and said it seems improper to involve the court system in that manner. He expressed concern that where so far there has been a very impartial judiciary, they are now politicizing it. He stated, "And I think we will see the day under this plan where there is a significant partisan attempt to knock a member of the supreme court off because it's heading up to reapportionment time. REPRESENTATIVE CROFT, speaking of the supreme court, said, "There's only five members. We know who's been there before. We know it's a small enough state, their prior leanings. As I said, it doesn't make any difference, I'd trust Justice Eastaugh to decide a case on me, on nonpartisan grounds. But I'd also trust him probably to appoint someone maybe I didn't like if it was to be a partisan decision." REPRESENTATIVE CROFT concluded, "So, I don't like involving the court system. I know that having the governor do it has its flaws. But I think of the three branches of government, we shouldn't be doing it - it's too much mischief there possible. The court system shouldn't be doing it - it ain't their job and I want to keep them pure. And the only other branch of government with a statewide focus and not at least a direct interest in the particular seats involved is the governor. I think the Founding Fathers in our state chose the lesser of two, three evils, maybe, and did it for that reason. And though imperfect, it's preferable." Number 0475 CHAIRMAN GREEN took exception, suggesting it is just the opposite. Citing the last election as an example, he said there is a strong political influence from the governor's office in the affairs of the legislature, in who is elected; the closer it gets to an even balance, the more that is true. He expressed confidence in the proposed system, and he suggested it contains more avenues than presently available for making it more neutral and fair. Number 0570 REPRESENTATIVE ROKEBERG emphasized the importance of this, saying he looks forward to its being on the ballot. He stated his belief that Alaska lacks the enhanced checks and balances of the other 49 states. He said Alaska has a long history of gubernatorial abuse and a litany of case law and litigation that stretches back decades on this. He suggested looking at the wishes of the framers, who he said intentionally weakened the separation of powers to give the executive more strength in Alaska, which was, he said, an experiment. The resulting problems that have occurred because of this are the rationale for pursuing this particular amendment. REPRESENTATIVE ROKEBERG characterized HJR 44 as strengthening the separation of powers between the branches, saying it would preclude the governor from having a greater ability to appoint a board who, in turn, will appoint a more like-minded legislature. He stressed the importance of that point. He submitted that on this count, the framers of Alaska's constitution erred, which he said they are trying to right. He agreed with the chairman that the intent is to make it more balanced, level and fair. REPRESENTATIVE ROKEBERG expressed his hope that the procedures will be expeditious, not protracted court battles, which is another important element of this. He cited a personal example where a shortened campaign season resulted in significant disruption. He concluded by saying he would be voting for HJR 44. Number 0695 REPRESENTATIVE BERKOWITZ responded that the framers deliberately crafted a strong executive branch, because the qualities of a state this big required some authority that could move quickly and decisively. He stated, "That was a deliberate decision, and it was done, probably, throughout this constitution. And if we're going to nibble at it in a piecemeal fashion, the unintended consequences could be quite profound. I don't know what they are. But there's a possible reason why, excepting all the chicanery that went into some of the past redistricting." REPRESENTATIVE BERKOWITZ continued, "There's some merit to an argument that a governor draw district lines in such a way as to get a legislature willing to move forward with his or her legislative agenda. And we've seen, for the last eight years - it'll be ten years - a Republican agenda move forward. And I think that span of time is sufficient for the people of the state to determine whether that agenda is one they want to pursue or not. If it's one they want to pursue, they have the opportunity of electing a Republican governor ... at the next election. If it's not one they want to pursue, well, then, they can stay with Governor Knowles. So, before we dispense with some of the thinking that went into putting together a strong executive, I think there's a lot underneath it that deserves some consideration." Number 0792 REPRESENTATIVE BUNDE noted that one thing people frequently say about the Alaska electorate is that they vote for a person first. He acknowledged Representative Berkowitz' mention of the majority of voters who are not affiliated with any party. He suggested that giving voters an extra burden of voting not only for the person but also for a governor that will redistrict in such a manner as to affect future state programs would complicate elections unnecessarily. REPRESENTATIVE BUNDE said he thinks the strongest argument he has heard for this resolution is that a governor may try to gerrymander to support his program, as Representative Berkowitz has indicated. He stated, "And it's happened in the past, and it's time to say, 'Whoa, enough. Let's get on with a more fair way.'" Number 0898 REPRESENTATIVE PORTER suggested they can look at current language in the constitution and see the consequence of repeated litigation and alleged or substantiated gerrymandering. He suggested they can also look at the consequences of this form of provision in state constitutions nationwide; he indicated those states don't have those kinds of problems. He concluded that the consequences will be positive. CHAIRMAN GREEN noted the motion before the committee and asked whether the objection was maintained. REPRESENTATIVE BERKOWITZ said yes. Number 0945 CHAIRMAN GREEN requested a roll call vote on moving HJR 44, Version M [0-LS0528\M, 2/9/98], as amended, from the committee with individual recommendations. Voting to move it from committee were Representatives Bunde, Porter, Rokeberg and Green. Voting against it were Representatives Berkowitz and Croft. Representative James was absent. Therefore, CSHJR 44(JUD) moved from the House Judiciary Standing Committee by a vote of 4-2. HB 267 - DOMESTIC VIOL. & SEXUAL ASSAULT DISCLOSURE Number 1007 CHAIRMAN GREEN announced the next item of business would be HB 267, "An Act relating to domestic violence and sexual assault; and providing for an effective date." The committee had moved CSHB 267(JUD) out of committee on February 9, 1998. CHAIRMAN GREEN told members the Department of Law had advised them that whereas "law enforcement official" is used in the body of the bill, the title change adopted at the previous hearing used the phrase "public safety officers." Chairman Green therefore recommended that the title be changed on lines 2 and 3 to read, "counselors to reveal to law enforcement officials." He mentioned the change made at the previous hearing which resulted in the wording, "person is missing." He then acknowledged that Version H, the new proposed committee substitute, contains those changes. Number 1087 REPRESENTATIVE ROKEBERG made a motion to rescind the committee's previous action [of February 9, 1998, moving the bill, as amended, from committee]. There being no objection, it was so ordered. Number 1098 REPRESENTATIVE ROKEBERG made a motion to move version 0-LS0098\H out of committee. There being no objection, CSHB 267(JUD) moved from the House Judiciary Standing Committee. HJR 5 - SHORT TITLE: CONSTIT AMNDMNT: FREEDOM OF CONSCIENCE Number 1132 CHAIRMAN GREEN announced the next item of business would be HJR 5, proposing an amendment to the Constitution of the State of Alaska relating to freedom of conscience. Number 1138 REPRESENTATIVE TERRY MARTIN, sponsor, advised members he had been interested in the issue of freedom of conscience for at least ten years, since finding out it is not in our constitution. He noted that in Oklahoma, they had to take at least two government classes on the importance of freedom of conscience. In addition, he became aware of it while in the U.S. Marine Corps, where the commander set aside a day to talk to the troops about the military code of justice, emphasizing the importance of freedom of conscience in that they did not need to obey the order of a commander who was way out of line, such as telling someone to kill the women and children in a battle. REPRESENTATIVE MARTIN said throughout history, freedom of conscience has been a higher level of inalienable right than freedom of religion. He cited examples, including Socrates, who chose death rather than denying the truth, and Martin Luther King. Number 1338 REPRESENTATIVE MARTIN referred to a recent writing by U.S. Supreme Court Justice Sandra Day O'Connor, included in committee packets. He said she had written a dissenting opinion on the separation of church and religion, citing the history of how early freedom of conscience was a part of our liberties, that there cannot be a basic right to liberty, nor religion or lack thereof, without freedom of conscience. REPRESENTATIVE MARTIN told members he is absolutely shocked that the state didn't even consider this during the constitutional convention. He noted that he had inquired of some people who were there at the time, and he was told it was never discussed or brought up. He suggested that as a new group, the framers had accepted the model given to them, which provided for freedom of religion, not freedom of conscience. REPRESENTATIVE MARTIN referred to questions raised by Representative Berkowitz, apparently in the House State Affairs Standing Committee. He then advised members that his staff had done a good job of providing examples of wording relating to freedom of conscience in various constitutions. He said freedom of conscience has been taken for granted for many centuries and decades. He said Stalin, in his constitution, gave the people freedom of conscience and religion, but not free exercise thereof, which is why so many people ended up in concentration camps. Number 1469 REPRESENTATIVE MARTIN next referred to a document in packets containing quotations from Thomas Jefferson, which he said clearly describe the importance of freedom of conscience, even over freedom of religion, as a basic inalienable right. Representative Martin indicated Alaskans are faced with this very issue. Do doctors, nurses and others have to obey the order of a higher authority, even if it is the court system, regardless of their conscience? REPRESENTATIVE MARTIN told members, "There's only one section in the state law that says you have freedom of conscience, and it had to do with abortion. Well, what about all the other aspects of freedom of conscience in our daily lives?" He emphasized the importance of making people aware that we don't have freedom of conscience in the constitution. "And we can no longer take it for granted that no one would ever question our freedom of conscience," he said. "And it's been very successful in most state constitutions, and in the colonial days, over 300 years. And so, we shouldn't be afraid of it today in Alaska, to allow people to have freedom of conscience." Number 1556 REPRESENTATIVE BUNDE commented that he always enjoys the issues that Representative Martin brings forward, because they create interesting debate and are well-thought-out and heartfelt issues. He noted that there have been cases in the past where some religious tenets conflicted with public health, such as parents' refusal of treatment for their children, even at the peril of the children's lives, or their refusal of immunizations for contagious diseases, even at the peril of other people's lives. Representative Bunde asked whether freedom of conscience would remove the state's right to interfere for the greater good in that religious area. REPRESENTATIVE BUNDE next pointed out that there is seldom discussion of freedom from - he emphasized that word - religion. For example, with assisted suicide, there are those who, in good conscience, might believe in euthanasia. He asked: If this resolution passed, and even though euthanasia is not a law of the state of Alaska, if someone's conscience says it is the right thing to do, should that person be allowed to do it? Number 1667 REPRESENTATIVE MARTIN responded that it is very important that we don't consider it as wide-open, that someone can run through a school yard with an automobile at 85 miles per hour, for example. He referred members to the original wording of the U.S. Constitution relating to licentiousness and public health and safety. He indicated he had provided the chairman with a related amendment, and that licentiousness and public safety are things that Justice O'Connor had discussed. For example, he said, one cannot go into a theater and kill a multitude of people because they are watching the wrong kind of films. Representative Martin indicated this is a buffer and the courts have answered this before, in relationship to the Mormon Church and to Indian tribes smoking peyote; within their compound and groups and religious ritual, they could do it, he said, "but don't go smoking around the place and saying its religious rites." REPRESENTATIVE MARTIN informed members that all the states, and the Supreme Court, had balanced freedom of conscience with the safety of the majority of the people, and with the health of the people. For example, he said, if people believe the Internal Revenue Service (IRS) is misusing their money, they cannot just refuse to pay taxes. "Those questions have been addressed a number of times," he added. "But the most important thing is that in this state here, even those are minor if you don't even have freedom of conscience in the first place." Number 1784 REPRESENTATIVE MARTIN referred to the Valley Hospital case. He stated, "Right now, the only thing we see in the constitution is that you have a statutory right not to participate in abortions, much less assisted suicide act or anything else." He indicated there was a case in Australia involving legal assisted suicide. A doctor there felt bad about participating in a death controlled by computer, and the parliament immediately reversed their decision, Representative Martin said. He said there are many cases where people don't want to participate in assisted suicide or abortion. Number 1915 REPRESENTATIVE CROFT asked, "Representative Martin, does this constitutional amendment give me the right to disobey state law if I feel it conflicts with my conscientiously held beliefs?" REPRESENTATIVE MARTIN expressed surprise at the question, saying he was sure it had been brought up in constitutional classes. He then said, "You can disobey but you may pay the price, just like Socrates did. 'I am a teacher; I will always tell the truth.' And we in the Department of Education [say], 'Oh, no, you won't; you won't say anything about this and that particular subject.' And so, therefore, he or she loses their license, because they insisted on telling the truth of what they thought about this particular point of history. And so, they can go to court, you know." Number 1986 REPRESENTATIVE CROFT said he himself didn't know the full extent of this right, although he is familiar with a lot of case law surrounding the free exercise and establishment clauses. He said he understands that freedom of conscience is a related subject, but he doesn't understand whether this is meant to broaden it. He again asked what would happen if he found a law to be morally repugnant and chose to violate it. REPRESENTATIVE MARTIN answered that he may pay the price and then would have to go to court. He mentioned some unspecified cases about people participating in abortions, indicating the second case said a doctor didn't have to participate but that nurses and janitors could be told to do so. He indicated it applies to education and to how parents raise their children. Number 2091 REPRESENTATIVE PORTER said he was confused also, and that he would ask Representative Croft's question another way. He asked, "If it is not the intent of this legislation to provide an opportunity for someone to violate the law against their conscience, or violate existing case law against their conscience, what is the function of this proposal?" REPRESENTATIVE MARTIN replied, "The function of this thing is to make sure that authority - whether it be legislative authority, law enforcement areas, whatever it may be - will not force someone, as in the military service, to do an act against their conscience. And you will not order someone to kill someone else when they were absolutely opposed to it. You will not force a teacher, just because she got a license, to teach something that she realizes is wrong, is absolutely not the truth, or she will lose her license. People must be guarantee[d], as a basic role of liberty, to have freedom of conscience. There will always be give and takes, but if the people don't have freedom of conscience to begin with, then we can tell them that they must obey every law." Number 2184 REPRESENTATIVE PORTER responded, "Maybe the Marines were different from the Army, but I got that speech, too. And what they told me was that I'm not going to be required to violate the laws of the United States, the Constitution of the United States, or the laws of international agreement of war, not my conscience. And if it is that if I am a teacher - if that's the example you want to use - or if I am an employee at the Palmer hospital, and lawfully abortions are being performed there, and the hospital administrator says, as an employee, you will do your duty, and you have -- he doesn't have the ability to say, 'You will do it because somehow you're indentured here and you can never get out of this situation.' He's saying that ... it's a job requirement, just like most employers have for their employees." REPRESENTATIVE PORTER continued, "If you're saying that this would allow a person to say 'no' in either situation - a teacher or the hospital employee - and then not suffer the consequences of termination, or discipline or something, I'd like to hear that. If you're saying that they would have to suffer the consequences of discipline or termination, then there isn't any function to this thing." Number 2302 REPRESENTATIVE MARTIN replied, "They may temporarily suffer losing their jobs and so on, but we give them the rights to a constitutional freedom to go to the courts and go through the necessary system to fight the authority that told them that they will not tell the truth, that told them ... that they must participate in this termination of life, would be assisted suicide. So, the authority must always know, too, that these people who I am in charge of have basic rights of freedom of conscience, and I cannot force them to do something. 'If you want to kill that person, Mr. Authority, you do it; don't make me do it.'" Number 2359 REPRESENTATIVE PORTER said he readily understands the sensitivity to the issues of abortion and assisted suicide that exist, and recognizes that there are legitimate differences of opinion on those kinds of issues. However, this kind of a proposal would provide an undefined right of conscience; it can apply to anything. He said he had this vision of an animal rights advocate working in a meat packing plant and saying, "I'm not gonna pack meat, but you can't fire me." REPRESENTATIVE MARTIN replied that for 300 years, we have had this inalienable right, or at least we thought we did. Many states, in many other areas, have constantly battled with it, which is why we have a court system. He added, "But that just shows right here, in the Valley Hospital, if you don't have it in the constitution, you don't have it. And that's what they're saying in that document, in that court case, right here on page 20 [ends mid-speech because of tape change]." TAPE 98-16, SIDE A Number 0001 REPRESENTATIVE BERKOWITZ indicated he had the case. Number 0091 REPRESENTATIVE BUNDE said, "The purpose of freedom of conscience is to allow people to refuse to do something that would conflict with their conscience, ... but then I heard Representative Martin say, 'But you have to pay the price.'" REPRESENTATIVE MARTIN said, "Yes." REPRESENTATIVE BUNDE said, "I can be a conscientious objector in the military, but I still have to serve two years. I can refuse to pay a portion of my income tax that would go to national defense, but I would have to face some legal consequences. In Alaska today, don't we have that right to refuse but pay the consequences?" REPRESENTATIVE MARTIN replied, "I would say no, because you don't have the rights here, as on page 21. Same thing with the Valley. Individuals, nor this corporation, have the right, the constitutional right, to conscience, (indisc.) the court opinion, Valley Hospital has no constitutional right in this issue. It is at most a statutory right, freedom of conscience. Therefore, abortion is superior. Because it's conscience, it's constitutional. No way, shape, or form, in any document that I've found, do we see in the constitution - or in the right to privacy, in that legislation that went on for two years - did they ever mention, in any way, shape or form, the right to abortion. But our supreme court said they would find it right here, we will reach in and find [that] rights to privacy means right to abortion. They themselves discovered that, for no foundation whatsoever. They could also use ... Section 21 of Article I, which says the enumerated rights of the citizens, as in this document, do not prohibit the citizen from ... the other inalienable rights. So, why our lawyers or whoever didn't go to reach into Section 21, the basic rights of freedom of conscience -- so, it seems like now we must print it." Number 0249 REPRESENTATIVE BUNDE said he can understand the philosophical approach. He stated, "But I didn't understand that today, in Alaska, a person who refused to pay taxes but still would have to pay the consequences ..." REPRESENTATIVE MARTIN interjected, "Yes." REPRESENTATIVE BUNDE continued, "...and then I heard you say ... that the Valley Hospital should have freedom of conscience. Would this extend, then to corporations ..." REPRESENTATIVE MARTIN affirmed that. REPRESENTATIVE BUNDE continued, "... or to organizations? Not to a person. We're talking about a hospital now." REPRESENTATIVE MARTIN responded, "We did have a doctor that just recently settled with the state, and with the federal government, on freedom of taxes. ... But anyway, he finally paid the price and found out that this does not permit him to refuse to pay taxes. So, there's what we call the give and takes. You can find other lawyers besides myself - as not a lawyer - who can give you the other balance of what these two gentlemen would say on the history of fighting and paying the price for your free conscience." Number 0338 REPRESENTATIVE BERKOWITZ said, "Representative Martin, you keep pointing to the Valley Hospital case as a reason ... why individuals can be compelled to perform abortions. Could you point out to me, in that case, where such language exists?" REPRESENTATIVE MARTIN replied, "Well, they don't say that in that case, because ... they're only using the hospital. No one yet - no nurse, no doctor - has yet been forced to do an abortion against their conscience. But the threat is there, even though it says it in statutory language, that people are free from not participating in ...." Number 0397 REPRESENTATIVE BERKOWITZ told Representative Martin he had corresponded with the attorney involved in the case, who had sent him a fax. Representative Berkowitz read a portion of the judgment in the Valley Hospital case: "Nothing in the permanent injunction granted as part of this Final Judgment shall require any member of the medical staff of Valley Hospital, or any officer, agent, servant, or employee of Valley Hospital, to participate directly in the performance of any abortion procedure if that person, for reasons of conscience or belief, objects to doing so." Representative Berkowitz then concluded, "Given that kind of language, it seems to me that your concerns about the scope of Valley Hospital are vastly inflated." Number 0447 REPRESENTATIVE MARTIN replied, "The freedom of conscience aspect came up way before this decision on the Valley Hospital. Years ago, when the nurses actually went on strike against the two doctors who were insisting that they went into abortions, and there was such a problem in the valley area that only as a group, when they fought against participating in abortions, that they were able to get away with it. So, the doctors were able to get nurses from the other areas that would participate in the abortion process." REPRESENTATIVE MARTIN continued, "Though it had been threatened, in this case, I could say yes, they were only talking about Valley Hospital and that institution. It was not an individual requirement yet that came up. They were only talking about the hospital must participate, because the hospital received federal dollars and state dollars and so on. It's only two steps further, then, they may force some nurse -- and you have a couple of witnesses here, nurses that will give you a different perspective, how they've been, perhaps, been forced to do it." REPRESENTATIVE BERKOWITZ stated, "So, the hospital had to pay the consequence for accepting federal dollars." REPRESENTATIVE MARTIN replied, "As this case says." REPRESENTATIVE BERKOWITZ asked whether that was a yes. REPRESENTATIVE MARTIN replied, "Yes, they said, 'Because you accept it, federal monies and state monies, you must provide these services.' But then, we have yet the individual case." He noted that a couple of people would testify on that. He then mentioned Adolf Hitler and the belittling of the value of life. Number 0581 REPRESENTATIVE BERKOWITZ pointed out that there is a big difference between conditions in Nazi Germany and those in the United States, which is a democracy where people have some degree of representation. He suggested the analogy is misplaced. REPRESENTATIVE MARTIN replied that they are talking about freedom of conscience, indicating people in Germany were refused that right. Number 0615 REPRESENTATIVE CROFT stated, "I was going to make those points, as well as saying that the Valley Hospital case caveats the issue of Providence, as we're not dealing with one that has a religious affiliation, and that may, in fact, be a different situation; we don't know." REPRESENTATIVE CROFT said he was still trying to figure out the answer to the questions raised by Representatives Porter and Bunde. He stated, "I have the right now to violate any law I want, for whatever reason I want, and pay the consequences. It's really not much of a right if I have to pay the consequences. It seems to me only a significant right if I can say, 'I can do this, and you can't punish me for it - fire me, put me in jail, whatever it is.' So, would this now make me able to violate laws without paying the consequences?" Number 0674 REPRESENTATIVE MARTIN replied, "We're saying no, it would not. But we're also saying that authorities cannot, because now we want to give people the right to freedom of conscience. And if they don't have that right, then authority can tell them to do anything, and be even more demanding to put them in jail and shoot them on the spot for disobeying an order, or fire them from their jobs. As long as we don't have the rights, by constitution, that's inalienable rights, then any authority can do almost anything with you, and you don't have much of a defense with the courts, especially the courts' saying it's only a statutory right and it's not a constitutional right." REPRESENTATIVE MARTIN continued, "And when you look at all the history of the other states, why is it that they give their people the freedom of conscience? Why is it, with so -- a supreme principle of liberty, when this country first began or even before we began, in the revolutions, that they were fighting for freedom of conscience against religion of other countries. That was the most important thing. ... Maybe I'm not getting it across right, but it's such an inalienable right throughout the history of the liberty of man, of growing and becoming free, that today we don't understand it?" CHAIRMAN GREEN indicated he didn't want to cut this short, but testifiers were standing by, both on teleconference and in the audience. Number 0781 JANET OATES, Director, Marketing and Government Relations, Providence Health System, testified via teleconference from Anchorage in support of a "conscience clause" constitutional amendment. She said the Valley Hospital rulings had brought this into focus for them. MS. OATES explained, "We had felt that as a private and religious hospital, our position of not doing abortions was not jeopardized. We're not quasi-public, as the court ruled Valley Hospital to be. But we have been cautioned by our own attorneys that until this is brought to court, we couldn't be sure of that, that the only way to assure we would be free to maintain our position would be a court ruling. Obviously, this isn't something that we're very interested in pursuing; we've got plenty of other things to do besides that. So, we are ... concerned for other hospitals in the state who find themselves vulnerable." MS. OATES said they'd heard just that day that hospitals are having difficulty finding staff willing to do abortions. "And so, they're having to consider the option of recruiting staff, which is an expensive and time-consuming task," she noted. "We also see risk in the hospitals where Providence would partner, especially with the community of Kodiak and in Seward. In Seward, we simply rent the building from the City of Seward. But in Kodiak, there are borough dollars that come in to contribute to ... capital expenses." Number 0907 MS. OATES continued, "We do believe that a constitutional amendment would take us back to the intent of the original legislation regarding abortions. A couple of suggestions that we would like to make regarding this particular amendment, if you're going to use this is as the vehicle, that we would prefer an expansion from an individual, perhaps to, 'An individual or organization may not be denied freedom of conscience.'" MS. OATES said second, although they'd received assurance that the broad language of HJR 5 reflects the U.S. constitutional perspective, there is concern in our state, "independent individualists that we all are, that we might be setting ourselves up for more battles between extremist points of view, that challenge our basic laws ... for civil order and greater good." At the same time, she pointed out, this reflects the Providence commitment and core values of compassion and respect. She noted that respect goes both ways and explained, "We're asking people to respect us as we pursue the dictates of our conscience, but at the same time, we're willing to give them that same right." MS. OATES concluded, "We're comfortable with the language of Senator Miller's proposed amendment, which specifically addresses this in ... the context of abortion, and we respectfully suggest that you might consider looking at that approach." REPRESENTATIVE ROKEBERG asked whether she had written comments. MS. OATES indicated she would provide those. Number 1021 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (ACLU), testified next via teleconference from Anchorage, indicating the organization is a nonprofit, nonpartisan, nongovernmental entity that represents 800 members throughout Alaska. MS. RUDINGER stated, "And I'm here to express our opposition, on behalf of our membership, to HJR 5. Frankly, we're baffled. If approved by the voters, would this constitutional amendment supersede state authority granted in other parts of the constitution? For instance, would an individual's traditional beliefs around hunting and fishing supersede the state's management authority over fish and game granted in Article VIII? Could individual invoke this constitutional right to practice polygamy?" MS. RUDINGER said, "The supreme court expressly notes, on page 5 of the Valley Hospital opinion, quoting the final judgment that Representative Berkowitz read to you, that this injunction does not require anyone affiliated with the hospital to participate directly in the performance of any abortion procedures if that person, for reasons of conscience or belief, objects to doing so." Number 1106 MS. RUDINGER concluded by suggesting HJR 5 is so vague it could actually be dangerous. She said if this measure intends to allow exemption from state laws for those exercising their religious beliefs, the legislature would do better to craft a religious freedom restoration Act, "a so-called RFRA," wherein exemptions to the state's laws are tailored much more narrowly so as to protect specifically stated religious rights. She indicated the American Civil Liberties Union had supported the federal RFRA, which was subsequently overturned by the U.S. Supreme Court. She said that while she cannot make promises regarding future positions on hypothetical legislation, she suspects that the Alaska affiliate would be much less skeptical of a carefully crafted state law protecting specifically delineated religious rights than they are of this overly broad and vague proposal. Number 1208 TED DEATS, Legislative Secretary to Representative Terry Martin, Alaska State Legislature, came forward to testify as a citizen of Alaska. He stated, "I think the citizens should have a right to vote on whether to have a freedom of conscience amendment, because Valley Hospital thought they were protected by state law that said hospitals and people do not need to participate in abortions, that we had a conscience amendment in state law. And the supreme court under the right to privacy -- interpreted the right to privacy that abortion was a superior right to ... our state conscience right." MR. DEATS commented that the right to privacy was never intended for the purpose of abortion. He said it was for electronic and computer surveillance of citizens. He stated, "So, I think that I'd like that law, in particular, protected, the right to not participate in an abortion. That's a state law, and I would like to have that law protected." MR. DEATS referred to mention that no person is required to directly participate in an abortion. He asked: With a small hospital with 36 beds, what is "directly"? Is it the surgeon? Is it the nurse with an anesthetic? He stated, "You're putting an undue moral burden on people that have to clean up afterwards, they have to remove what remains. These people are going to be forced to do that, because they're not directly participating. And I think the state law would be protected for these people if we had a constitutional freedom of conscience that said, 'Yes, this state law is protected under freedom of conscience.'" Mr. Deats went on to say the ruling was against Valley Hospital in part because it was a quasi-public hospital. He quoted from the judgement in that case and pointed out that the hospital is a community hospital whose board is elected by a public membership. Number 1352 DOROTHY McDOWELL came forward to testify. She said, "The only thing that I wanted to say, I guess, that Alaska's the only state that has abortions, and to refuse could leave them not only ... unemployed but also unemployable, by taking their professional licenses. And this is what I'm really concerned about. As a registered nurse of 40 years, I encountered the situation of thinking I had to help the doctors with abortions when I went to work in the operating room here ... in Juneau. I watched one and decided I could ... not, in good conscience, take part in helping with them. My husband advised me to talk to our minister, as I was ready to resign. And this was a big thing for me, because I had worked most of my life in the operating room. Our minister verified that I could not help with these abortions and be able to live with myself." MS. McDOWELL continued, "The following may give you some idea of the conscience I would be violating. It was taking a life. And with Christ's teaching, we are to love our neighbors and ourselves and to choose life. I had taken the Hippocratic oath when I graduated from nursing school, in which I swore to revere him, Hippocrates, as I would a parent, prescribe for the good of the patient, give no deadly drug, perform no abortions, act only for the welfare of the patient, and keep his secrets, and also to keep themselves from intentional ill-doing and seduction." MS. McDOWELL continued, "Fortunately, I had heard of Alaskans for Life. I called them, and they showed me the law which stated that I did not have to participate in them, to help with abortions, and supported my decision to take this to my employer. After showing my supervisor this law, I was able to keep my job and not assist the doctors with abortions." MS. McDOWELL continued, "During my employment there, some of the nurses came to me and asked how they could get out of having to help with the abortions, because they were having some of the patients have repeated abortions, in other words, indicating that they were using it as a form of birth control. They were beginning to feel guilty and no longer wanted to help with the abortions. They asked why I did not help with them, and I told them about the good conscience law that was in effect at the time. They were thankful that they didn't have to help with them anymore. I heard one nurse ask a doctor prior to an abortion, 'When are we ever going to stop doing these?' She indicated to me that she was very tired of helping with them. Shortly after that, I noticed that there was only one doctor left doing them." MS. McDOWELL concluded, "I hope you will join me in supporting this bill, now that you realize how many lives are affected by participating in abortions. I am deeply concerned about the welfare of good nurses and doctors who refuse to take part in abortions, thereby losing their licenses to practice as a medical care provider." Number 1570 SID HEIDERSDORF, Alaskans for Life, came forward to testify. He stated, "We support the goals, certainly, of HJR 5. There's been much discussion here, and I think that we agree that this amendment to the constitution would be better off being much more specific. Certainly, we've got to avoid opening the ball game up to run the risk of someone saying they have the right to jeopardize health and safety, which we ... certainly do not support." MR. HEIDERSDORF said, "It's unfortunate that we even have to get involved with trying to amend the constitution. But I think in view of what ... the Alaska courts have said in that Valley Hospital case, that it's important to maybe try to preempt the next possible step, which ... would be to consider the requirement that personnel on a staff of a hospital may be required to participate in abortions. And I also would like to limit our concerns and my testimony here. Really, we're concerned about the life issues: abortion, infanticide, doctor-assisted suicide, euthanasia, that type of thing. So ... that's the kind of thing we have in mind for an amendment to the constitution, again, to preempt any future decisions that might be in line. It staggers the imagination to think that the courts would rule that individuals had to participate, but 15 or 20 years ago, I would have told you that we would never have arrived at the position we are now, much due to what our courts have been saying about this issue." Number 1653 MR. HEIDERSDORF said anyone involved in the abortion debate will remember that in the early Sixties and Seventies the conscience clause was an area where basically everyone agreed. Even those who favored abortion agreed it is appropriate that people shouldn't be forced to participate in something that they find repugnant. He stated, "And I think that in the Alaska bill which was passed in 1970, surely the conscience clause was the least controversial aspect of that bill." MR. HEIDERSDORF said he couldn't find a definition of "individual" in the Alaska constitution, and he asked whether it covers an institution. He said he believes a community should be able to decide whether its hospital will provide those kinds of services. He stated his understanding that in the U.S. Constitution, the word "person" covers legal entities, which he indicated attorneys would know more about. Number 1715 MR. HEIDERSDORF concluded by pointing out that the license to practice medicine is a privilege, not a right. He suggested it would be easy for legal entities, somewhere down the road, to put pressure on people about who they will issue licenses to, because privileges are easy to revoke. He stated, "And some kind of a freedom of conscience provision dealing with these fundamental life issues in the constitution, ... we strongly support." Number 1760 REPRESENTATIVE PORTER said he wasn't that familiar with the Valley Hospital case, although he had read about it in the newspaper some time ago. He said he was confused about the effect on someone's license to practice medicine, either as a nurse or a doctor. He asked, "Considering the statute, how would someone's license be in jeopardy ..., or was that an issue in that case?" MR. HEIDERSDORF said no, then added that it is an issue right now, which is why he calls it a preemptive move on the part of the legislature to put this issue before the public. He asked: The next time around, how do we know where the courts may come down on this issue? He emphasized that that is what they are really concerned about. For example, he said, it is hard to get staff to participate in abortions now. Number 1801 REPRESENTATIVE PORTER asked, "I guess I understand what you're saying, but do you understand reluctance to put something this general on the ballot, considering what might come of interpreting it, not interpreting something else?" Number 1811 MR. HEIDERSDORF said yes, indicating that is why for the purposes of Alaskans for Life, he'd suggested something more specific, limited to the life issues. He added, "Yes, otherwise we heard the discussion here about, 'Do you have the freedom to do anything you want?' Well, we have that freedom now, for sure. But we're viewing it from the protection of the medical profession." REPRESENTATIVE BERKOWITZ asked whether, as it is written now, Mr. Heidersdorf sees the dangers of leaving it with language this broad. MR. HEIDERSDORF replied, "I think it's too broad, yes. I would say that it'd be better to be more specific." Number 1847 CHAIRMAN GREEN provided members with a possible amendment for consideration, specifying that he wasn't formally offering it that day. He noted that it had been mentioned in earlier testimony. Chairman Green then closed public testimony and indicated HJR 5 would be held over. HB 252 - REGISTRATION OF SEX & CHILD OFFENDERS Number 1901 CHAIRMAN GREEN announced the next item of business would be HB 252, "An Act relating to criminal records; relating to notice about and registration of sex offenders and child kidnappers; and amending Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure." Number 1907 TED BACHMAN, Captain, Division of Alaska State Troopers, Department of Public Safety (DPS), testified via teleconference from Anchorage, specifying that he is staff assistant to the director. He said they have worked with the sponsor of this bill since its beginning and are pleased with how it is going. However, there are a small number of changes they recommend, a couple of which are housekeeping changes. He asked if the committee wanted to address those now or if he should submit them to the sponsor. CHAIRMAN GREEN suggested he send those to the sponsor but provide the committee with a brief overview. Number 1950 CAPTAIN BACHMAN responded, "Certainly. We think that there are possibly some problems in Section 1 and subsection (a)(2) of the proposed statute, and also in subsection (b) of the statute, some possible constitutional problems that may arise out of the way that's crafted at this point. And we would have some recommended changes ... to the language in those particular sections." He added that he wouldn't go through the minor housekeeping changes. CHAIRMAN GREEN asked whether he would submit those as well to the sponsor. CAPTAIN BACHMAN said yes. He specified that he was working from Version R [0-LS0818\R, Luckhaupt, 2/9/98] and stated his understanding that it would be submitted as a proposed committee substitute. He advised members that in Section 10, they recommend that the offense be changed from perjury to unsworn falsification. He said that again, he didn't think it was worth going over all the reasons at this point. He then stated his belief that the rest of the changes are minor housekeeping one-word changes, which they could submit through the sponsor. Number 2019 CHAIRMAN GREEN asked whether there were questions, then asked Diane Schenker of DPS, who was on teleconference from Anchorage, if she wished to testify; however, Ms. Schenker said she would answer questions. Number 2052 PAUL SWEET testified via teleconference from the Mat-Su Legislative Information Office (LIO). He said for three years, he'd been trying to get information on people who have not registered, but he is constantly told that it is privileged, private or confidential. Sex offenders have been through the court system and have been prosecuted; all their testimony and whatever they get for a sentence is in the court records and therefore available. And yet, their names are in the Alaska Public Safety Information Network (APSIN) file marked confidential. He said he doesn't understand that. MR. SWEET told members, "So, what I'm trying to prevent is if somebody goes wild out there and kills some kid or maims them or mutilate them, how are you going to explain to the parents that the only reason they didn't know that this guy was in their neighborhood is because they failed to sign up, and you couldn't release the information because it's confidential?" CHAIRMAN GREEN said he could commiserate with that concern. Number 2099 REPRESENTATIVE PORTER advised Mr. Sweet that he has some familiarity with that question. He explained, "It is an anomaly of the law that is inconsistent totally. And to draw on our recent discussion about an open-ended constitutional amendment, and it is because of that open-ended constitutional amendment of privacy that we have the APSIN regulations that preclude giving out information that is otherwise readily available in the court system. And so, you've got to be careful what you ask for, 'cause you might get it." Number 2120 MR. SWEET suggested that it tells a sex offender that if he doesn't feel like signing up, nothing will happen until he is caught. Therefore, nobody wants to come in and sign up automatically to be put on the Internet. REPRESENTATIVE PORTER responded, "I think that the original provision of requiring the offender to return and himself or herself sign up was, I think, an attempt to make sure that they knew where they were going to be living or something. But right now, that practice has changed, and they're being required to sign up before their release. So, most recently, and here in the future, that information will certainly be available in all cases." Number 2135 MR. SWEET stated that the original sex offender registration is very good, but we don't seem to be abiding by it very well. He asked why we don't adopt the Wetterling Act, the federal law that will be required in a year and a half anyway, which will eliminate "privacy and all that sort of thing" when it comes to a sex offender. MR. SWEET told members another reason he'd heard for not being given information is that the agency hadn't been notified yet. He said this will also eliminate that problem, because the federal law says it isn't up to the state to notify the individual; it is up to the individual. Mr. Sweet suggested coming up with a sentence that will make offenders think before deciding not to sign up. He said a fine won't do any good, because they would have to chase offenders down to collect the fines, year after year. MR. SWEET suggested if the worst offenders were jailed, others would come running through the doors to sign up. He cited some figures and estimated that every 60th man in Alaska is some kind of sex offender. "And that's the ones we know about," he added. "That's not a good average." He indicated that of the 500-some offenders in the jail system, he can't find out if they are repeat offenders of sex crimes, if they violated parole, or if they have other felony convictions. He stated, "There doesn't seem to be any numbers on that. So, that still leaves a thousand that we're looking for. And the way I feel is that those thousand are probably worse offenders than the ones who've already signed up; I don't know." He suggested getting tough on them, again suggesting that the Wetterling Act would be a good one to adopt, because they'll have to do it anyway, or some portion of it, anyway. Number 2278 CHAIRMAN GREEN advised testifiers that they hadn't yet debated the bill but had wanted to get their testimony on record. Number 2298 SUSAN G. WIBKER, Assistant Attorney General, Human Services Section, Civil Division (Anchorage), Department of Law, came forward, specifying that she was standing in for Anne Carpeneti of the Criminal Division, who has worked on this bill. Ms. Wibker said she had a recommendation that she believes would close a bit of a loophole and that might help address some of the caller's concerns. She offered to submit it in writing or discuss it now. She added, "I think Public Safety talked to Representative Ryan about it this morning, so he knows that this is a recommendation that Law and Public Safety have agreed would be a good idea to close a bit of a loophole." MS. WIBKER referred to page 3, line 27, subsection (2). She recommended that it say, "A sex offender or child kidnapper who is physically present in the state shall register as provided in this section. The sex offender or child kidnapper shall register by the next working day following conviction for a sex offense or child kidnapping if the sex offender is not incarcerated at the time of conviction." MS. WIBKER explained, "The reason that Public Safety and the Criminal Division are recommending that is that there are cases where someone may be convicted by either coming in and pleading no contest or having a jury come back with a verdict of guilt. Their sentencing is then set 60 days later, to give time for a pre-sentence report. conviction and the date of sentencing, they can flee the state, and the duty to register never kicks in, so that they're convicted but unsentenced. There's no judgment, and they're not registered." MS. WIBKER continued, "I actually had that happen to me in a case ... where I had a jury convict a guy; it was in May of '95. Within 48 hours, he left - probably left the country but certainly left the state. He's never been found. There's a warrant out for his arrest. ... If you look in APSIN now, there's not even a record of the conviction. So, this would put every conviction -- at the time of conviction, the duty to register would kick in and give them one day." Number 2390 MS. WIBKER continued, "Another way to even close that gap more securely is toward the end of the bill, where it talks about all the different kinds of information that can be forwarded, on pages 8 and 9, that section of the bill would allow either the court or the DA's office [Office of the District Attorney] at the time of the conviction to give that conviction to the Department of Public Safety, so that conviction could be put in the registry. And then it would be there, and if he registered, he'd be in compliance. If he fails to register, right there you've got the conviction and the failure to register, out of compliance. That doesn't require an amendment in the statute. It requires just a change in practice, that either the DA or the court - that's something we can work out - would immediately get that conviction information into the registry, which it looks like this statute allows." MS. WIBKER concluded, "So, Representative Ryan has been made aware of that. The Governor's child protection bill has ... a sex offender registration provision in it, and we're recommending, whatever is passed, that that little hole be closed." Number 2450 CHAIRMAN GREEN asked whether David Pree, legislative assistant to sponsor Representative Ryan, wished to comment; Mr. Pree said he was available for questions. Chairman Green then closed public testimony and indicated HB 252 would be held over. HB 273 - NOTIFY COMMUNITY ABOUT SEX OFFENDERS Number 2456 CHAIRMAN GREEN announced the committee would briefly take up HB 273, "An Act relating to notification of the public concerning sex offenders." He noted that the sponsor wasn't present. He then called on Shirley Marshall, requesting that she send or fax any written testimony. TAPE 98-16, SIDE B Number 0006 SHIRLEY MARSHALL testified via teleconference from Tok, specifying that she was representing herself, her children, family members and members of the Tok community. She suggested adding to HB 252 that "any health care facility be notified, and that in that health care facility, if a convicted sex offender is employed or volunteering there, that pictures of a convicted sex offender be posted so the community has their own choice whether they go to that facility for their medical care or not." MS. MARSHALL further asked that the emergency medical service licensing board reconsider letting a licensed emergency medical technician (EMT) hold a license if that person is a convicted sex offender. She offered to answer questions. Number 0056 CHAIRMAN GREEN thanked Ms. Marshall and advised her that she could fax information to (907) 465-4316. He asked Representative Masek, sponsor, who had just arrived, whether she or her aide wished to make a statement; Representative Masek said she would wait. Chairman Green then advised Representative Masek that they had taken testimony from someone on teleconference but would consider the bill another day. [HB 273 was held over.] ADJOURNMENT Number 0111 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at 3:35 p.m.

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