Legislature(1997 - 1998)
03/04/1998 01:10 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 4, 1998
1:10 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
* HOUSE BILL NO. 405
"An Act relating to failing to stop a vehicle when directed to do
so by a peace officer."
- MOVED HB 405 OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 50
Proposing amendments to the Constitution of the State of Alaska
relating to a public corporation established to manage the
permanent fund.
- MOVED HJR 50 OUT OF COMMITTEE
* HOUSE BILL NO. 452
"An Act relating to registration, disclosures, and reports by
certain nonprofit corporations."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 47
Proposing amendments to the Constitution of the State of Alaska
relating to the nomination, selection, appointment, and public
approval or rejection of justices of the supreme court and of
judges of courts established by the legislature that have as an
exclusive purpose the exercise of appellate jurisdiction over
judicial acts and proceedings, and requiring legislative
confirmation of those justices and judges and of the appointed
members of the judicial council.
- HEARD AND HELD
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- BILL HEARING CANCELLED
(* First public hearing)
PREVIOUS ACTION
BILL: HB 405
SHORT TITLE: FLEEING OR EVADING A PEACE OFFICER
SPONSOR(S): REPRESENTATIVES(S) KOTT, Kohring
Jrn-Date Jrn-Page Action
2/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S)
2/12/98 2312 (H) JUDICIARY
3/04/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 50
SHORT TITLE: PERMANENT FUND PUBLIC CORPORATION
SPONSOR(S): REPRESENTATIVES(S) JAMES, Vezey
Jrn-Date Jrn-Page Action
1/21/98 2099 (H) READ THE FIRST TIME - REFERRAL(S)
1/21/98 2099 (H) STA, JUDICIARY, FINANCE
1/29/98 (H) STA AT 8:00 AM CAPITOL 102
1/29/98 (H) MINUTE(STA)
2/12/98 (H) STA AT 8:00 AM CAPITOL 102
2/12/98 (H) MINUTE(STA)
2/12/98 2299 (H) STA RPT 1DP 3NR
2/12/98 2300 (H) DP: DYSON; NR: VEZEY, HODGINS, IVAN
2/12/98 2300 (H) FISCAL NOTE (GOV)
2/27/98 (H) JUD AT 1:00 PM CAPITOL 120
2/27/98 (H) MINUTE(JUD)
BILL: HB 452
SHORT TITLE: NONPROFIT CORPORATIONS DISCLOSURES
SPONSOR(S): REPRESENTATIVES(S) GREEN
Jrn-Date Jrn-Page Action
2/18/98 2362 (H) READ THE FIRST TIME - REFERRAL(S)
2/18/98 2362 (H) JUDICIARY
3/04/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 47
SHORT TITLE: CONST AM: APPELLATE JUDGES
SPONSOR(S): REPRESENTATIVES(S) COWDERY, Phillips, Green,
Rokeberg, Ryan, Kohring, Ogan, Vezey
Jrn-Date Jrn-Page Action
1/16/98 2060 (H) READ THE FIRST TIME - REFERRAL(S)
1/16/98 2061 (H) JUDICIARY, FINANCE
1/20/98 2092 (H) COSPONSOR(S): GREEN, ROKEBERG, RYAN
1/28/98 2166 (H) COSPONSOR(S): KOHRING
2/20/98 Text (H) JUD AT 1:00 PM CAPITOL 120
2/20/98 Text (H) MINUTE(JUD)
2/20/98 2389 (H) COSPONSOR(S): OGAN, VEZEY
WITNESS REGISTER
JIM HORNADAY, Legislative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
Telephone: (907) 465-6848
POSITION STATEMENT: Presented HB 405.
DUANE UDLAND, Police Chief
Municipality of Anchorage
4591 south Bragaw Street
Anchorage, Alaska 99507-1599
Telephone: (907) 786-8500
POSITION STATEMENT: Testified in support of HB 405.
BARBARA BRINK, Director
Alaska Public Defender Agency
900 West Fifth Avenue
Anchorage, Alaska 99501
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on HB 405.
DEL SMITH, Deputy Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4322
POSITION STATEMENT: Testified on HB 405.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section - Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Responded to questions on HB 405.
BRUCE RICHARDS, Program Coordinator
Office of the Commissioner
Department of Corrections
240 Main Street, Suite 700
Juneau, Alaska 99801
Telephone: (907) 3307
POSITION STATEMENT: Responded to questions on HB 405.
PATRICK LOUNSBURY, Legislative Secretary
to Representative Jeannette James
Alaska State Legislature
Capitol Building, Room 102
Juneau, Alaska 99801
Telephone: (907) 465-3743
POSITION STATEMENT: Presented HJR 50.
REPRESENTATIVE JOHN COWDERY
Alaska State Legislature
Capitol Building, Room 416
Juneau, Alaska 99801
Telephone: (907) 465-3879
POSITION STATEMENT: Sponsor of HJR 47.
CHRIS CHRISTENSEN, Staff Counsel
Office of the Administrative Director
Alaska Court System
820 West Fourth Avenue
Anchorage, Alaska 99501-2005
Telephone: (907) 264-8265
POSITION STATEMENT: Testified on HJR 47.
ACTION NARRATIVE
TAPE 98-29, 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 and Porter; there was no quorum yet.
Representatives Berkowitz, Croft, Bunde, Rokeberg and James arrived
at 1:21 p.m., 1:32 p.m., 1:32 p.m., 1:33 p.m. and 1:35 p.m.,
respectively.
HB 405 - FLEEING OR EVADING A PEACE OFFICER
Number 0054
CHAIRMAN GREEN announced the first item of business would be HB
405, "An Act relating to failing to stop a vehicle when directed to
do so by a peace officer," sponsored by Representative Kott.
JIM HORNADAY, Legislative Assistant to Representative Pete Kott,
Alaska State Legislature, came before the committee to present HB
405 on behalf of Representative Kott. He explained the committee
members should have a sponsor statement and sectional analysis of
the bill. The fiscal notes are in progress from the Department of
Law and the Public Defender's Agency. Mr. Hornaday read the
following statement into the record:
"HB 405 increases the penalties for not stopping at the
direction of a police officer. Failure to stop at the
direction of a police officer in the first degree occurs if
during the commission of the offense the person violates any
other law during the commission of the offense and is a class
C felony. Failure to stop at the direction of a peace officer
in the second degree occurs if the person knowingly fails to
stop as soon as possible in a safe manner and is a class A
misdemeanor.
"The crime of eluding a police officer is inherently dangerous
for pedestrians, other drivers and innocent bystanders. As an
example, in the Municipality of Anchorage in August of
1998[7], a passenger in a vehicle attempting to avoid arrest
was killed when the vehicle ran a red light and struck a
building. This is only one of several recent incidents where
casualties have resulted from this very serious crime.
"Increasing the penalties for this crime will not only help
deter this potentially dangerous behavior, but will more
correctly align the severity of the punishment with the
severity of the crime itself."
MR. HORNADAY pointed out that the legislation is a part of the
Municipality of Anchorage's legislative package. He continued to
read the sectional analysis.
"Section 1 of the bill repeals AS 28.35.182, the offense for
failing to stop at the direction of a peace officer, and
reenacts that section as failure to stop at the direction of
a peace officer in the first and second degree.
"Subsection (a) creates the new offense of failure to stop at
the direction of a peace officer in the first degree which is
committed when a person violates subsection (b), failure to
stop at the direction of a peace officer in the second degree
and the person violates another law, ordinance, or traffic
regulation.
"Subsection (b) provides that a person commits the offense of
failure to stop at the direction of a peace officer in the
second degree if the person, while operating a vehicle,
knowingly fails to stop when requested to do so by a peace
officer.
"Subsection (c) provides affirmative defenses to a person
charged with failure to stop at the direction of a peace
officer. The defenses are that the peace officer's vehicle,
if the peace officer was operating a vehicle when requesting
the defendant to stop, did not meet lighting and audible
signaling requirements for law enforcement vehicles and was
not marked appropriately so as to be recognizable as a law
enforcement vehicle or that the peace officer was not wearing
the uniform of office or displaying a badge when requesting
the defendant to stop.
"Subsection (d) supplies definitions.
"Subsection (e) provides that failure to stop at the direction
of a peace officer in the first degree is a class C felony,
and failure to stop at the direction of a peace officer in the
second degree is a class A misdemeanor."
MR. HORNADAY noted Mr. Udland was waiting to give testimony.
Number 0358
DUANE UDLAND, Police Chief, Municipality of Anchorage, testified
via teleconference from Anchorage. He thanked the committee for
hearing the bill and Representative Kott for sponsoring the
legislation. He noted that three years ago the legislature dealt
with the "joy-riding" issue and raised the penalty to a felony and
started calling it "vehicle theft." Mr. Udland stated he believes
it is now the time to look at the penalty of fleeing from a police
officer. He pointed out that in most cases when somebody decides
to flee, they know they are not going to stop until they lose the
police officer or they crash. Mr. Udland said it is such a problem
that five years ago they severely restricted the ability of their
police officers to chase people who flee from them because of the
inherent dangers of fleeing as well as the danger to the police
officers themselves. Mr. Udland indicated that Mayor Mystrom and
police officers support the legislation and urged passage. He
referred to the impact that will be caused on the court system and
the Department of Corrections and said when the legislation was
passed that raised the penalty on vehicle theft, the rates of
vehicle theft decreased.
Number 0553
CHAIRMAN GREEN asked Mr. Udland if the legislation were to become
law, would he see any significant change in the cost of his
operation. He pointed out that there isn't a fiscal note and he is
trying to get an idea of what financial effect the bill would have.
MR. UDLAND said he doesn't think there would be any impact on his
operation, financially or operationally.
Number 0602
REPRESENTATIVE BRIAN PORTER said, "I know that the wording here is
about the same, but I guess just to get it on the record, I don't
believe that the wording is now broken out as intending to mean
that what is traditionally called an 'unmarked police car' would
not be able to make a traffic stop and have the benefit of this
statute."
MR. UDLAND said their intent is that a person who is fleeing has to
clearly know that somebody behind them is a police officer. In
other words, you won't have a police officer in their unmarked car,
with no identification, waiving. It has to be a knowingly act on
the part of the person who is fleeing.
REPRESENTATIVE PORTER noted the wording in the legislation is the
same as it is in existing statute such as "unmarked" cars that are
more visibly marked once the officer decides to make a stop with
lights, sirens and emergency gear that any other car would have.
He said, "But I just, for the record, wanted to establish that this
doesn't change that - having broken it out from a big paragraph
does not change the situation."
Number 0729
BARBARA BRINK, Director, Alaska Public Defender Agency, testified
via teleconference from Anchorage. She said she certainly
understands the reasoning and logic behind the bill, but her
concern is that when a policy decision is being made that there be
some good identifiable information about the cost. Ms. Brink
apologized about not having forwarded to the committee, but she is
still waiting on some numbers. She said there definitely are
increased costs for her agency with the increase in penalties. She
explained a felony trial is handled in a much different manner than
a misdemeanor trial. For example, there is the grand jury
proceeding. The case is tried to a 12 person jury rather than a 6
person jury. She pointed out that the client always faces the
impact of having a permanent felony record which (indisc.) both
civil and criminal. Ms. Brink informed the committee that some of
the people who are charged will be facing presumptive sentences if
they have prior felonies on their record. She stated that Chief
Justice Warren Matthews in his State of Judiciary (indisc.) pointed
out that felony cases are a lot more likely to go to trial than
other cases. She explained she is still waiting for some figures
so that she can try and make a statewide determination on the cost.
Ms. Brink noted that under national standards, lawyers can handle
three times as many misdemeanor cases as they can felony cases.
Ms. Brink explained that those people who are impulsive enough, and
if they lack the good judgement when a police officer is trying to
get their attention, aren't really thinking about (indisc.)
consequences and what might happen to them. She said she hopes the
legislation has a deterrent effect, but she does have some real
concerns as to whether the legislation will be effective.
Number 0895
CHAIRMAN GREEN referred to Ms. Brink indicating that she didn't
think the legislation would have an impact on a person who
currently exercises poor judgement and asked if once the word gets
out that they really mean business that it won't have a beneficial
effect.
MS. BRINK said it is so hard to know that. She referred to cases
she has personally been involved in and said she has seen people
get caught in the heat of the moment and make this impulsive
choice. She doesn't believe that alluding a police officer is a
well-planned premeditated thought out crime, they see the red light
and impulsive behavior takes over and there isn't a whole lot of
good thinking going on.
Number 0987
DEL SMITH, Deputy Commissioner, Department of Public Safety, came
before the committee to testify on HB 405. He said that he
believes Mr. Udland has eloquently stated the case for Ms. Brink's
consideration. He said he has been informed by people in Anchorage
that there were 78 cases of eluding or evading police officers in
calendar year 1997, that the Alaska State Troopers did a case
report on. Mr. Smith stated his presumption is that they probably
wouldn't have done a case report unless they actually got somebody
in hand, did some prosecution or at least made the arrest. The 78
cases combined with the 81 that Mr. Udland had charged in 1997
would make it approximately 160 cases a year. He noted that figure
doesn't include some of the smaller municipalities. Mr. Smith
stated, "I was somewhat surprised by the number in Anchorage, but
it creates a situation where last year I think the legislature
passed a law regarding shooting at a building and making it a
felony. I think it's no less important that if you're driving down
the roadway at 90 miles an hour and the police have backed off long
ago on the search and you are ultimately caught that there is a
price you should be paying for that." He said he would answer any
questions the committee may have.
Number 1096
CHAIR GREEN referred to the legislation and asked Mr. Smith if he
could give a rough estimate of how many out of the 78 cases would
be class A misdemeanors or class C felonies.
MR. SMITH said he hasn't had an opportunity to review the reports
and he doesn't know if he could do that with any accuracy. He
referred to when they originally discussed the bill and said they
did not want to charge felonies against a person who is driving
within the speed limit and just doesn't recognize the state of
Alaska or local police's authority to stop them. He said they
didn't think it should necessarily be a felony if they were obeying
the speed limit. Mr. Smith stated that the legislation would trip
a number of these people into a felony because all they have to do
is violate another law or ordinance, including running a red light
or stop sign.
Number 1160
REPRESENTATIVE ETHAN BERKOWITZ said it seems to him that if someone
is speeding down the road and they're endangering other
individuals, they would be liable to assaulted conduct which is
already felonious.
MR. SMITH said he would defer to the Department of Law to respond.
He said, "If they were doing 80 or 90 miles an hour through the
middle of town, potentially I guess that's possible, Representative
Berkowitz. I think with the process of screening by district
attorneys if the offense, back to your ever popular turn signal
violation, might well not be charged as a felony when it in fact
gets to cooler heads the next morning and the screening process."
Number 1216
REPRESENTATIVE PORTER indicated that he believes that most of the
assault-type of violations would require specific intent and that
is the problem that you have in a vehicle situation. Unless there
is serious physical injury or death, it's extremely difficult
(indisc.). He said he can't recall ever having a successful
prosecution for what used to be (indisc.).
ANNE CARPENETI, Assistant Attorney General, Legal Services Section
- Juneau, Criminal Division, Department of Law, came before the
committee. She referred to Representative Berkowitz's previous
comment and said assault in the third degree has a provision that
says, "recklessly place another person in fear of immanent serious
physical injury by means of a dangerous instrument." She stated,
"It's not something that we ... prefer to charge under a section
like addressed to the particular conduct a little bit more clearly,
but I suppose you could logically apply that."
REPRESENTATIVE BERKOWITZ said, "Two points here. First is look at
the crime that inspired this bill. And I understand that the B
misdemeanor is just not enough because it really has no effective
value, but the crime where casualties resulted would have led to,
at the very least, manslaughter charges in addition to the
misdemeanor charges for violating traffic ordinances and
disregarding the police officer."
REPRESENTATIVE PORTER said the previous iteration of the bill had
a higher level of a class B felony for this conduct that might
result in serious physical injury or death, but it was noted that
is another crime specific. That wasn't the intent to have
redundance.
REPRESENTATIVE BERKOWITZ said, "I don't think we use the assault
statutes nearly enough and we tend to draw our statutes so
narrowly, which is what this does, that we have a tendency away
from using the assault statute the way it should be used which is
to put the facts in front of a jury and let make a determination
whether assaulted conduct has occurred."
Number 1394
MS. CARPENETI said, "That would just address one incident that this
bill I think is addressing and that is if a person is put in fear
of eminent serious physical injury, I don't know if somebody is
speeding down the street and you have to jump away whether we would
be able to prove beyond a reasonable doubt to a jury of 12 people
that that is fear of eminent serious physical injury. You know if
somebody just turned away, I don't know whether we would...
REPRESENTATIVE PORTER responded, "Thus, this specific offense,
criminal offense of reckless driving indicates that the driving has
created this hazardous situation without having to require the
specific state of mind evidence from potential victims."
REPRESENTATIVE BERKOWITZ said if the recklessness inspires fear, he
is worried at what level the fear is, whether it's a serious
physical injury or just a mere irritation. That should be a
question for a jury to determine. He indicated that he believes
the legislation stacks the deck and takes the power away from the
juries to make a determination as to whether a crime has occurred.
MS. CARPENETI said she thinks the bill addresses something else
besides assault. It addresses conduct to where a person is asked
to pull over by a police officer and knowingly refuses to do so and
drives on and violates more laws not necessarily assaulting
anybody, but creates the danger that might result in a crash.
REPRESENTATIVE BERKOWITZ said that his point is that the committee
is focusing on the danger. He said he isn't minimizing the danger,
he understands the problem of people fleeing. People who have been
arrested are subject to several charges, including felony escape if
they're under arrest for a felony charge. That group of people are
outside the realm. He said, "We're saying that the traffic
problem, itself is less serious than the failure to stop which
could be felonious. I'm not sure that that's something we should
do specifically do by statute or something that we should allow the
district attorneys to charge, under current statutes, and try and
convince a jury of 6 or 12 that the charge is correct."
MR. HORNADAY noted that Mr. Udland submitted a letter and gave a
copy to the committee members.
Number 1696
REPRESENTATIVE NORMAN ROKEBERG questioned why the sponsor
introduced the legislation.
MR. HORNADAY indicated the legislation is part of the Municipality
of Anchorage's legislative program. He quoted from the summary
that the municipality submitted making the crime of alluding a
police a class C felony, "Currently the crime of alluding a police
officer is a misdemeanor under the Alaska Criminal Code. The
Municipality of Anchorage requests that the legislature amend the
code to make this crime a class C felony for the following reasons:
The crime of alluding a police officer is inherently dangerous for
pedestrians, other drivers and innocent bystanders; classification
as a misdemeanor does little to detour a criminal from attempting
to outrun a police officer; several other local government police
departments, including the Anchorage Police Department, have
adopted a no-chase policy due to the potentially dangerous outcome
of police chases; and having adopted a 'no-chase' policy it is
important to detour this behavior and more strictly punish
offenders."
MR. HORNADAY continued to read, "In August of this year a passenger
in a vehicle attempting to evade arrest was killed when the vehicle
ran a red light and struck a building. This is only one of several
recent incidents where causalities have resulted from this very
serious crime. The Municipality of Anchorage supports legislation
to increase the penalty for the crime of alluding a police officer
and this will not only help detour this potentially dangerous
behavior, but will more correctly align the severity of the
punishment with the severity of the crime itself."
Number 1796
CHAIRMAN GREEN said Mr. Udland's testimony indicated that when we
increased the consequences of joy-riding to be a serious crime, the
number of car thefts decreased. It is Mr. Udland's opinion that by
increasing the penalty for failure to stop, then that too will
decrease. The Alaska State Troopers also feels the same way. He
noted the public defender feels that it won't have an impact.
Chairman Green noted there were 78 failures to stop or alluding
troopers in 81 Anchorage police reports for 1997.
Number 1860
REPRESENTATIVE ERIC CROFT said almost any time a misdemeanor is
increased to a felony, or define a felony, we're going to increase
business for the public defender's office. He asked Ms. Brink if
there were other problems with the way the bill is written.
MS. BRINK pointed out that her testimony was about how much more
costly felony cases are than misdemeanor cases. She said, "I would
like to point out one problem that I don't believe has been brought
up yet. The numbers that we've received, about 150 combining the
troopers and APD (Anchorage Police Department) is still lacking, I
think, another group of folks. The municipal prosecutor told me
that they prosecuted 66 of these cases as misdemeanors, but the way
the statute is written there is also an alluding infraction that
involves specifically failing to stop at the direction of a police
officer. Those numbers aren't included here. So I feel pretty
comfortable that the 150 cases a year that we've gotten are fairly
good numbers. I just think there is potential for the number to be
even higher. And my concern with the effectiveness of this as a
deterrent measure is simply that the clients that I've dealt with
in an alluding case didn't make any plan or didn't have a
premeditated course of action to allude ... the red light went on
and they engaged in some bad judgement and very impulsive behavior
without thinking clearly. So my concern was we will have great
costs. I'm insecure about what kind of a benefit we're going to
get derived from this because the people that I've seen involved in
alluding or running away from police officers aren't really
thinking about the consequences. It's a very impulsive short-sided
adrenalin rush kind of situation where they make a bad judgement
call. I hope I'm wrong if this does become a felony."
REPRESENTATIVE BERKOWITZ suggested that instead of going to an A
misdemeanor and a C felony, have a B misdemeanor and an A
misdemeanor, and then have a statutory aggravator in felony cases
for some kind of failure to stop.
MS. BRINK said, "That would it would reduce that costs. I mean
it's the fact of the different procedures involved in a felony case
that increases our cost. Once again, who knows whether this will
enter anybodies thought process, but you certainly would have a
harsher hammer to use against somebody who engaged in this behavior
if you had a graduated scheme like that."
Number 1981
REPRESENTATIVE PORTER said he would agree with Ms. Brink that a
certain percentage of people make an initial reaction without
contemplated thought. He said he believes the bill gets at people
at either end of that scale. At one end, there will be the person
who isn't going to stop because of some constitutional issue of
theirs. Then at the other end of the scale, the person who makes
that initial judgement and then continues with it, which does
require conscious thought, that is the person for whom the felony
is very appropriate. Unfortunately, in Anchorage, as in a couple
of other communities, there has been a lot of publicity over the
last couple of years on pursuit policies. He indicated that many
people are aware that the largest community in the state has a
policy that the Anchorage Police Department will not pursue in a
hazardous situation unless it is very hazardous like shooting guns
out of windows. He stated for those reasons, he believes it is
appropriate legislation.
REPRESENTATIVE JAMES noted the Fairbanks Police Department also has
the no-chase policy. She indicated she agrees with a bigger
penalty as it might be a deterrent.
Number 2120
CHAIRMAN GREEN referred to the roughly 150 cases and asked Mr.
Hornaday if he knows how many of those might be young drivers as
opposed to more mature drivers. He asked how many are teenagers.
MR. SMITH said without reviewing the police reports, he couldn't
answer.
Number 2136
REPRESENTATIVE BUNDE asked Representative Porter if there is a
difference between failure to stop and alluding.
REPRESENTATIVE PORTER said he couldn't answer that question unless
he reviewed the statutes and read the definitions.
REPRESENTATIVE ROKEBERG referred to the step up in the offenses and
asked if the bill would preclude any infraction for an
unintentional failure to stop.
MR. HORNADAY responded that he believes it requires a "knowingly"
in the statute as defined in the criminal statutes.
REPRESENTATIVE ROKEBERG asked if that is currently the level or
standard for the infraction.
MR. HORNADAY responded that he isn't sure what it currently is, but
in the legislation it states it has to be knowingly which is
generally required.
REPRESENTATIVE BERKOWITZ said, "I'm curious to know if [Department
of] Corrections has any idea of what the additional cost of turning
this into felonious (indisc.) would be bearing in mind that a lot
of these people would be hopped up and be presumptive?"
Number 2235
BRUCE RICHARDS, Program Coordinator, Office of the Commissioner,
Department of Corrections, came before the committee. He said, "We
are currently in about the same boat as everybody else as far as
numbers go. We've heard the number is near 150 cases per year.
It's unclear to us how many of these people would be convicted as
felons, which has a substantially higher penalty. In looking at
the bill, it seems like a good many of them could be convicted as
felons if they violate, under the law, ordinance or traffic
regulation law while they're failing to stop. So I think that's
pretty common. If they fail to stop, I would assume they're
probably speeding, driving recklessly. So I think that you're
going to have a significant number of felonies and we are trying to
figure out, if we can, how many of those will be, but it's
difficult and we're trying to get with everybody else on these
numbers as well. I don't know the answer to Representative
Berkowitz's question at this point."
REPRESENTATIVE CROFT said he would hope that most of the people
that are stopped would be for a good reason - for a violation, and
a lot of them would be felonies for that reason. He stated that he
would like to see how many felonies will be added to the Department
of Corrections.
REPRESENTATIVE PORTER referred to the cost of these kinds of pieces
of legislation has gone on and on and said, generally, most of the
offenses that have been put on the books have been used as tools.
He referred to the fiscal note on the felony conspiracy statute and
said it was outrageous. He stated that this is another one of
those kinds of crimes that would be used as a tool. In an
egregious situation, there would probably be a prosecution for a
felony. He said he would guess that in at least 50 percent of the
cases, if not more, that are currently on the books, thorough plea
bargain, or just general discretion at the prosecutor's level,
there would not be a felony crime, but it would get out that there
are felony type consequences for (indisc.) failing to stop.
Number 2339
REPRESENTATIVE BUNDE observed that the part that can't be
calculated is how many fewer people would fail to stop. He said we
have to presume that consequences of our behavior does affect
behavior, otherwise, a lot of laws could be removed.
REPRESENTATIVE JAMES said, "Well I think also if you're going think
that you're going to decrease the number, that might not stop. You
might also increase safety of the public."
Number 2371
REPRESENTATIVE BERKOWITZ said that before the bill is moved he
would like to conceptual amendment to implement a stepped up scheme
which is leave the low level B misdemeanor as failure in the second
degree. Make failure in the first degree an A misdemeanor and
create a statutory aggravator of failure to stop if there is
felonious behavior such as an assault, manslaughter, theft of a
vehicle, et cetera. He said, "The way an aggravator works is when
someone who is sentenced for a felony, the prosecution and the
defense make a ... statutory list of good things, bad things -
aggravators and mitigators, and if we make this one of the
aggravators, then prosecutors will be able to say, 'This is one of
the bad things, this sentence should be enhanced consequently.'
But what it also does is allow the Department of Corrections some
flexibility here because I am concerned about the fiscal note -
concerned about the fiscal note for corrections, for public
defenders and probably for the prosecutors office as well. So that
being the case, that's my amendment."
REPRESENTATIVE PORTER objected to the adoption of the conceptual
amendment. He said, "I understand what the maker of the amendment
is trying to respond to, and I don't disrespect that. I just think
that, first of all, I'm not too sure if there isn't the language
that would be close to what this would constitute as an aggravator
already - felony list. So that might be a bit redundant in some
cases, but like it or not sometimes life is more effected by sound
bites than comprehensive knowledge. And the sound bite that says
this is now a felony is one heck of a sound bite. It has an
effect, believe me. (Indisc.) lowest felony that there is."
TAPE 98-29, SIDE B
Number 0010
REPRESENTATIVE ROKEBERG said he would like to know if there is an
aggravator in existing state statute and/or in the municipal code.
REPRESENTATIVE BERKOWITZ responded, "Title 12 through 55."
MS. CARPENETI explained there are currently 29 aggravating factors
in Title 12. She noted she didn't see one of them on the list of
29.
REPRESENTATIVE PORTER said his recollection of the 29 was there was
something about adding an aggravator if the action presented a risk
to 30 or more people.
MS. CARPENETI said she believes that is one.
REPRESENTATIVE PORTER stated that in a reckless driving situation
that could very well be.
REPRESENTATIVE BERKOWITZ said you would still need to show three
more people which he thinks will be one of the problems in charging
assault of conduct for this behavior.
MS. CARPENETI stated that she would like to point out that the way
the bill is written, you couldn't be charged or convicted if you
didn't know knowingly fail to stop. It wouldn't be a question of
not noticing the police officer and not stopping under those
circumstances. You would have to be aware of the fact that they
had asked you to pull over.
Number 0091
REPRESENTATIVE ROKEBERG asked that someone from the Department of
Corrections address his next question. He said if they knew there
was going to be ten people incarcerated under a class C felony,
what would the annual fiscal note be for ten people.
MR. RICHARDS if you're currently under a class B misdemeanor, which
is 90 days maximum, a class C felony can be up to five years. He
indicated he doesn't know what the average sentence would be for
these cases.
REPRESENTATIVE ROKEBERG asked what the annual amount would be for
ten people for one year for a felony.
MR. RICHARD responded it would be approximately $360,000.
Number 0142
REPRESENTATIVE BERKOWITZ said, "It occurs to me ... that you're
going to get probably felons who get traffic stopped who are
worried about parole violations. I mean the idea of making it a
felony for failure to stop is going to discourage -- cuts both ways
because it could encourage people to flea as well because they'd be
worried about picking up a second felony, in which case they would
be presumptive which is four years at the very least - or two
years."
Number 0167
REPRESENTATIVE CROFT said he thinks the bill is trying to
accomplish good public policy goals. He stated he believes the
amendment improves the bill.
REPRESENTATIVE ROKEBERG asked that Representative Berkowitz clarify
more specifically about what would constitute the aggravation. He
asked if a reckless driving activity would constitute aggravation.
REPRESENTATIVE BERKOWITZ responded, "Conceptually, I would hope
that the conduct that would constitute a failure to stop at the
direction of a peace officer, that's listed here, ... that language
would be used in the aggravator. And I haven't reviewed it
closely, but it would seem to me that that would be okay as an
aggravator's description. It's basically knowingly fail to stop at
the direction of a peace officer would be the aggravator."
CHAIRMAN GREEN asked if that would apply to a misdemeanor or would
it be a felony to invoke the aggravator.
REPRESENTATIVE BERKOWITZ stated it would be in a felony situation.
CHAIRMAN GREEN indicated he was confused.
REPRESENTATIVE BERKOWITZ said if somebody has a previous felony and
they now have stolen a car, they refuse to stop, this would be an
aggravator on that felony charge.
Number 0241
REPRESENTATIVE ROKEBERG said he thinks one of the problems with a
pursuit is it generates a reckless driving problem and hazard to
the public. He asked if that would constitute the aggravator and
noted he thinks it should. He asked Representative Berkowitz if
that was his intention.
REPRESENTATIVE BERKOWITZ stated that if you are being trailed by a
cop and you don't stop, and you eventually do end up in custody,
the failure to stop would be an aggravator to the felony charge.
If there was reckless driving and failure to stop, that person
could be charged with reckless driving.
REPRESENTATIVE ROKEBERG asked, "Is that enough to get you into the
C felony list?"
REPRESENTATIVE BERKOWITZ said, "No, but under the way it's written
currently, yes, if you were driving recklessly and then were
eventually stopped, that would constitute, as I understand it, a
violation of a law which would make this a C felony."
REPRESENTATIVE ROKEBERG asked if reckless driving egregious enough
to fit the aggravator.
REPRESENTATIVE BERKOWITZ stated that it could be.
REPRESENTATIVE ROKEBERG said, "If we're going to adopt that, I'd
like to see that."
Number 0240
CHAIRMAN GREEN asked for a roll call vote on Representative
Berkowitz's conceptual amendment. Representatives Porter, James,
Bunde and Green voted against the amendment. Representatives
Croft, Rokeberg and Berkowitz voted in favor of adopting the
amendment. The amendment failed to be adopted by a vote of 4-3.
Number 0333
REPRESENTATIVE JAMES made a motion to move HB 405 out of committee
with individual recommendations and with the appropriate
forthcoming fiscal notes. There being no objection, HB 405 moved
out of the House Judiciary Standing Committee.
HJR 50 - PERMANENT FUND PUBLIC CORPORATION
[Contains discussion of HB 81.]
Number 0373
CHAIRMAN GREEN announced the next item of business would be HJR 50,
proposing amendments to the Constitution of the State of Alaska
relating to a public corporation established to manage the
permanent fund.
Number 0391
PATRICK LOUNSBURY, Legislative Secretary to Representative
Jeannette James, Alaska State Legislature, came before the
committee to present HJR 50 and the corresponding legislation, HB
81. He explained that HJR 50 more clearly defines the permanent
fund board's role inside of the constitution. He explained it also
changes the standard for removing the members of the permanent
fund. Currently, members serve at the pleasure of the governor.
Mr. Lounsbury explained that when Governor Hickel was elected, he
replaced the entire permanent fund board. The present
Administration replaced everybody except for one member. He stated
that he posed the question of whether HJR 50 would be good public
policy to one of Governor Hickel's personal aides and he stated it
was and that he would be forwarding a letter. Mr. Lounsbury noted
in the committee file there is a letter from Mr. John Kelsey, who
was the member retained by Governor Knowles, in support of the
legislation. Mr. Lounsbury explained that HJR 50 allows the
members of the board to be involved in the legislative confirmation
process. He stated that would allow another layer of
accountability to the board for the citizens of Alaska.
MR. LOUNSBURY referred to HB 81, which is the enabling legislation
if HJR 50 passes at the next general election. He stated HB 81 is
"An Act relating to the members of the board and staff of the
Alaska Permanent Fund Corporation." Section 1 increases the board
from six members to seven members and the governor would be allowed
to appoint an extra public member at his discretion.
MR. LOUNSBURY explained that Section 2 requires that at least one
member would have confidence and experience in investment portfolio
management. Section 3 is a technical change to conform to the
increase in the number of public members and that two members would
expire in the same year. He pointed out that this provision, over
time, would allow the governor to stack the deck in his favor which
would allow the board to run with his philosophy of government
which was a concern to some members of the committee at the
previous hearing.
MR. LOUNSBURY explained Section 4 allows the governor to removes
the trustees for cause. He explained that in the bill the word
"cause" is defined with incompetency, misfeasance or malfeasance in
office. He noted it could be fine-tuned if the committee wished.
Mr. Lounsbury said it could also include inefficiency, neglect of
duty or misconduct in office.
MR. LOUNSBURY referred to Section 5 and said it requires that the
governor base his decision to appoint new member solely on the best
financial interest of the fund, otherwise it is an ethical
violation.
Number 0595
MR. LOUNSBURY explained Section 6 provides that an executive
director serve at the pleasure of the board for a two-year period.
MR. LOUNSBURY informed the committee that Section 7 requires that
the members have a fiduciary duty to the fund. That runs in
concert with the concept of the removal for cause. If a board
member breaks a fiduciary, that, in a sense, is a basis for
removal.
Number 0630
REPRESENTATIVE BUNDE referred to HB 81, Section 4(2), and pointed
out that it says, "fails to exercise prudent judgement." He said,
"You (indisc.) General Electric and it goes down and we lose money.
Is that a failure to exercise prudent judgement?"
MR. LOUNSBURY responded that he doesn't believe that the members of
the fund would be responsible for market fluctuations.
REPRESENTATIVE BUNDE asked Mr. Lounsbury to give an example of
failure to exercise prudent judgement or intentionally taking
actions that aren't in the best financial interest.
MR. LOUNSBURY referred to the tobacco industry and said during
tobacco tax debate the previous session, a question was raised in
that if it was prudent to invest in tobacco companies even though
some people view them as not very nice corporations. He explained
that the Alaska Permanent Fund Corporation had invested about $67
million on tobacco stocks and they were rising which was good for
the fund. Mr. Lounsbury referred to exercising prudent judgement
and said he doesn't feel he is qualified to answer.
Number 0727
REPRESENTATIVE BUNDE asked if the section was added to prevent
trustees from making investments based on a philosophical or
political stand rather than financial judgement.
MR. LOUNSBURY responded, "That could be a reading. Another one
would be to take any - like ... personal ramifications out of it as
well. They go through a full disclosure method instead of
investing the fund which might affect his personal portfolio."
REPRESENTATIVE BUNDE said, "Intentionally taking actions for other
than financial best interest of the corporation, and using tobacco
as an example, ... then someone would be guilty of misfeasance, at
least, if they recommended that we divest ourselves of tobacco
because they're the evil empire even though they're making money."
MR. LOUNSBURY responded that his isn't sure if that was the intent
of the bill drafter. He noted the definition could be changed.
Number 0813
CHAIRMAN GREEN said, "And I would think that if you were going to
deviate from essentially secured stocks - I don't mean secured, but
blue chip type and go into penny stocks that are extremely high
risk with maybe 30, 40 percent of the - 50 percent that you're
allowed to do that with, that to me would indicate this sort of
thing. It's in the eye of the beholder, I'm sure, but I think
there is a pretty easy determination if that's your concern."
REPRESENTATIVE BUNDE stated it is for prudent judgement. He
referred to the wording, "for intentionally taking action for
reasons other than the financial best interest", and said to him
that says that they would not be able to make philosophical
statements. They must only invest for the best financial return.
Number 0855
REPRESENTATIVE ROKEBERG said, "The use of the word 'prudent' and in
prudent investment rule, as speculated in the existing statute in
the bill, is based on the prudent-man rule concept, which is
defined in case law and so forth, and has their standards of
prudent investment. And I think the bill indicates that if you
have a misfeasance or malfeasance if you reach that prudent
judgement relating to the prudent-man rule. And I think what this
concept we're talking about is called social investing or socially
insensitive type of investments about whether or not you invest in
tobacco companies or something that an individual may object to in
terms of philosophy. And I think Representative Bunde's comment
just a moment ago about the -- lines 18, 19 and 20 is correct
because a basis of a prudent judgement for investment has nothing
to do with social polities. Therefore, it would be imprudent on
the list if you were to not make a judgement like on the investment
return versus the policy. However, you can articulate a policy,
under certain circumstances, to allow that. That's not what this
means. As a matter of fact, there is ... circulating in the halls
of this building right know, the Uniform Prudent-Investor Act bill,
which has been adopted by a number of other states, will clarify
this situation (indisc.). So if that clarify that...".
REPRESENTATIVE BERKOWITZ stated prudent investment can and should
include social considerations. That is the new evolution of what
it means. He stated that it is not all about financial best
interest. Representative Berkowitz said it has been done for a
long time in this country. The movement began when we divested
stocks that we were investing in South Africa and that was done
consistently with the prudent-investor rule. We accepted the idea
that we could do things with a social purpose. He noted that the
Alaska Housing Finance Corporation (AHFC) is allowed to do
investments in what many might consider high-risk customers. That
is probably not financially the best thing to do, but there is a
social purpose to it. Representative Berkowitz pointed out that
prudent-investor is a new evolving concept and the committee should
be aware of that.
Number 1015
MR. LOUNSBURY explained that Section 3 allows the governor, with
it's staggered term provisions, to appoint one commissioner and one
head of agency. Within those four years of the governor's term, he
would appoint four new members. There would be six out seven, hand
picked by him, to deal with the philosophical prudent investing.
REPRESENTATIVE PORTER said he would think that the exercise of
prudent judgement (indisc.) with some specific definition would
just not be appropriate in that particular definition. He stated
that malfeasance and misfeasance has got a substantial background
in case law and most people can figure out what malfeasance and
misfeasance are. He said he doesn't believe there is a need to go
any further than that unless it's by policy decision. He indicated
his likes the wording, "intentionally taking action for reasons
other than the financial best interest of the corporation." That
is policy and he would support that. Representative Porter noted
he doesn't like the wording, "exercise prudent judgement," and he
is concerned about what unintentional way of performing duties is
in relation to (indisc.). He said he could think of some
unintentional actions that wouldn't (indisc.).
Number 1130
REPRESENTATIVE JAMES said Section 7 is currently existing law. She
read, "The prudent-investor rule shall be applied by the board in
the management and investment of fund assets. The prudent-investor
rule as applied to investments of the fund means that, in making
investments, the board shall exercise the judgement and care under
the circumstances then prevailing that an institutional investor of
ordinary prudence, discretion, and intelligence exercise in the
management of large investments entrusted to it not in regard to
speculation but in regard to the permanent disposition of funds,
considering probable safety of capital as well as probable income."
Representative James pointed out that it is clear the existing law
that this is not changing anything. She stated she believes the
argument is frivolous.
REPRESENTATIVE BERKOWITZ said the definition is a fine definition
he accepts it and endorses it, but said there will be a collision
between it and "best financial interest." He said that is why, for
the sake of consistency, the committee should choose "prudent-
investor" throughout the bill.
Number 1181
REPRESENTATIVE ROKEBERG said he takes strong exception to
Representative Berkowitz. He said he would assure the committee
that it's generally accepted in Wall Street and in most other
businesses centers of the world. Representative Rokeberg stated
that he agrees with Representative Porter that merely underlines
that and he doesn't find anything inconsistent in from what he
believes would be case law interpretation of prudent-man rule
standards and what that is. Representative Rokeberg referred to
Section 3, line 6, and asked why two members expire rather than
one.
MR. LOUNSBURY pointed out that is to conform to the increase of
public members. He said the board is also being increased from six
members to seven.
REPRESENTATIVE ROKEBERG said there are four members and asked why
they couldn't be staggered for one-year terms. He said it provides
for continuity.
Number 1320
REPRESENTATIVE BUNDE referred to Section 4 and asked, "Would
unintentional regard - someone who might end up with a mental
disability, but is still filling a space, but unable to perform
their duties. Is that what that is getting to?"
MR. LOUNSBURY said he believes it is a legal definition.
Number 1350
REPRESENTATIVE CROFT said he can appreciate why the committee is
looking at HB 81 which is to give more of an idea of what the
committee is doing with HJR 50, which is actually before the
committee. Representative Croft said having a theoretical debate
about the prudent-investor rule, which is not before the committee
doesn't seem to be productive to him.
REPRESENTATIVE BUNDE said before he moves forward on the resolution
he wanted to have an idea as to how the resolution would be
applied. He made a motion to move HJR 50 out of committee with the
attached fiscal note of $3,000. There being no objection, HJR 50
moved out of the House Judiciary Committee.
HB 452 - NONPROFIT CORPORATIONS DISCLOSURES
Number 1551
CHAIRMAN GREEN briefly brought up HB 452, "An Act relating to
registration, disclosures, and reports by certain nonprofit
corporations." He announced it would be heard again on Friday,
March 6.
Number 1568
CHAIRMAN GREEN called an at-ease at 2:31 p.m. He called the
meeting back to order at 2:35 p.m., at which time all members were
present.
HJR 47 - CONST AM: APPELLATE JUDGES
Number 1570
CHAIRMAN GREEN announced the final item of business would be a
revisit of HJR 47, proposing amendments to the Constitution of the
State of Alaska relating to the nomination, selection, appointment,
and public approval or rejection of justices of the supreme court
and of judges of courts established by the legislature that have as
an exclusive purpose the exercise of appellate jurisdiction over
judicial acts and proceedings, and requiring legislative
confirmation of those justices and judges and of the appointed
members of the judicial council.
Number 1578
REPRESENTATIVE JOHN COWDERY, sponsor of HJR 47, read portions of
his letter to the committee dated March 3, 1998. He expressed the
belief that HJR 47 is highly popular with the public, and he
questioned the motives of Chief Justice Matthews in personally
testifying against HJR 47 at the previous hearing. Representative
Cowdery brought up Chief Justice Matthews' contention that
legislative confirmation of judges will politicize the selection
process; he said there is nothing inherently evil or untoward in
politics, and he said the judiciary is the closest thing to royalty
in our society.
Number 1713
REPRESENTATIVE COWDERY told members that apparently the chief
justice only recognizes politics as occurring in the legislative
branch; he said Chief Justice Matthews admits to no political
considerations being played out in the executive branch during
Alaska's appointment process. He then asked whether, in the
federal system, the White House doesn't look for judicial
candidates who are philosophically compatible and supportive of
that administration's precepts, and whether special interest
groups, politicians and people of influence don't influence the
selection of federal candidates. Representative Cowdery said the
point is that politics does play a prominent role in the executive
branch appointment process, which largely excludes public
involvement until there is a nomination sent to the legislative
branch. He suggested that public involvement is the step missing
in Alaska's current system, which HJR 47 will remedy.
Number 1806
REPRESENTATIVE COWDERY continued to read from his letter the
sections relating to Chief Justice Matthews.
Number 1848
REPRESENTATIVE BERKOWITZ objected to characterizations of what the
chief justice is doing and aspersions about his motives;
Representative Berkowitz said those are inappropriate. He stated,
"And I respect Representative Cowdery for bringing this bill
forward. If he has issues with the substance of what the chief
justice has to say, I think we should hear them."
Number 1883
CHAIRMAN GREEN said that point was well made. He asked
Representative Cowdery to confine his comments to the facts rather
than to possible motives.
Number 1903
REPRESENTATIVE COWDERY continued talking about Chief Justice
Matthews' appointment by Governor Hammond, saying the chief justice
would have much less likely have been a candidate if his client
list had included aggressive development interests instead of the
Sahara [sic] Club. He stated, "His main benefactor for the
appointment of the governor's administrative assistant ...."
REPRESENTATIVE BERKOWITZ renewed his objection, saying this is not
pertinent but is an ad hominem discussion of the chief justice.
Number 1951
REPRESENTATIVE ROKEBERG replied that he didn't think it was out of
order, because he had asked the chief justice that very question
and believes it is germane to the bill.
REPRESENTATIVE BERKOWITZ responded, "If we're going to get into why
people were appointed or what their particular motives might be in
this committee, I would suggest that we open a Pandora's box,
because we're supposed to be discussing the substance of this
proposal."
CHAIRMAN GREEN said he would allow Representative Cowdery to
continue, although it was treading a fine line, because while the
chief justice had indicated there should be no politics involved,
the sponsor is trying to show that politics exist even in the
appointment of judges under the existing system.
REPRESENTATIVE BERKOWITZ said Representative Cowdery is suggesting
the chief justice is a hypocrite.
CHAIRMAN GREEN said he himself isn't reading it that way.
Number 2025
REPRESENTATIVE JAMES proposed that Representative Cowdery go ahead
but make the testimony on thought and theory, rather than allude it
to the chief justice.
Number 2055
REPRESENTATIVE COWDERY stated, "The main benefactor in the
appointment that Governor Hammond made, for the appointment, was
the governor's administrative assistant, who was also a former law
clerk."
CHAIRMAN GREEN said they were trying not to be so specific.
Number 2103
REPRESENTATIVE PORTER offered his firm opinion that Chief Justice
Matthews would say Representative Cowdery has a perfect right,
under the First Amendment, to say anything he wants to. He added,
"We don't have to agree with him, and as a matter of fact, I don't.
But I don't think we're serving any good purpose by interrupting
the testimony. Just let him finish and get him done with."
CHAIRMAN GREEN asked whether there was any other discussion of that
point, then asked Representative Cowdery to continue.
Number 2144
REPRESENTATIVE COWDERY stated, "As I was saying, the appointment
had some basis with the former law partner of -- who was the
governor's administrative assistant at the time. Some would say he
had political connections. However, some of us would have to
believe that politics is something that happens in the
legislature's back yard, never in the governor's or the judiciary."
REPRESENTATIVE COWDERY said the second argument employed against
HJR 47 was that it could result in confirmation delays and
bottleneck the court's work flow. He mentioned an example
discussed at the previous hearing, where a person is appointed
during May; if that person could not take office until after
legislative confirmation, seven months later, it would prolong the
vacancy and impede the court's productivity. Representative
Cowdery said he thinks this argument is somewhat disingenuous,
because it ignores the adaptability of people in organizations.
With legislative confirmation in place, most resignations and
retirement would simply schedule themselves around this legislative
calendar. As a matter of administration efficiency, the court
system could require a one-year notice for judgeships that require
confirmation.
REPRESENTATIVE COWDERY reminded members that a third argument
against HJR 47 is that it would degrade the merit system now in
place. He stated, "Nothing could be further from the truth. House
Joint Resolution 47 maintains the current system in total. The
judicial council and the bar association would still go through the
same polling and grading processes. They would still interact with
the governor in the same way as they do now. ... When all their
work is done, and after the [governor] makes his decision, House
Joint Resolution 47 simply gives the legislature and the public a
role to play in the appointment process."
Number 2321
REPRESENTATIVE COWDERY summarized by saying HJR 47 retains the
existing merit system, adding public participation through the
legislative forum, and it requires legislative approval of attorney
members of the judicial council and judges for the court of appeals
or the supreme court. Confirmation would result in appointees who
are acceptable to a broader segment of the public than only the
narrow constituency of the appointing authority. In effect,
legislative confirmation adds a "whole man review" of the nominee's
suitability for the appointment. "This is a proposition that we
can recommend to the general election ballot for final
determination by the voters of Alaska," he concluded.
Number 2393
REPRESENTATIVE CROFT referred to the assertion that Chief Justice
Matthews' decision to testify in person at the previous hearing was
a political decision. He noted that the judiciary doesn't usually
offer opinions on public policy issues discussed by the
legislature, stating, "I've seen Chris Christensen, time and time
again, say, 'We have no opinion on the merits of this; we can
comment on what it'll do to the judiciary, how much it'll cost.'
And that's the appropriate line that they continue to draw."
Representative Croft pointed out that HJR 47 has a direct impact on
the operation of the judiciary, and because it has such a
fundamental impact is the reason Chief Justice Matthews was here.
[Ends mid-speech because of tape change.]
TAPE 98-30, SIDE A
Number 0006
REPRESENTATIVE CROFT referred to problems in the federal system,
where the executive has an open field to appoint, and he said
Alaska has tried, through the merit system, to provide a limited
number of pre-qualified candidates. "How the governor makes that
final choice, I don't know," he said. "I suspect that there is an
element in that of who you know, and who you're comfortable with.
... When I watched Governor Hickel appoint Justice Eastaugh, he
mainly talked about how long he's known his family down in Juneau.
It didn't seem particularly relevant. But I was comforted by the
fact that it had gone through a rigorous public process where we
knew Justice Eastaugh was qualified, whatever ... final decision
was made in that regard."
REPRESENTATIVE CROFT continued, "I'm still very concerned about the
practical question I asked some days ago, and never got a
satisfactory answer: If we put two names up, the governor picks
one and that is rejected by the legislature, what do we do?"
Number 0116
REPRESENTATIVE COWDERY responded that he had researched that, and
the supreme court justice has the ability to fill a vacancy
temporarily under the constitution now.
Number 0170
REPRESENTATIVE CROFT noted that the person whom the legislature had
failed to confirm would obviously be gone. He asked, "Does the
other name go up, or do we start the process over again?"
REPRESENTATIVE COWDERY replied that the constitution says two or
more. "They could, if they thought there was going to be a
problem, nominate as many as they wanted to pick from," he added.
He said he doubted that people would throw their names in the hat
and go through the rigorous debate if they didn't really, honestly
feel they should be confirmed.
Number 0224
REPRESENTATIVE CROFT said if that is true, they would have already
politicized it one step before that. He said he still doesn't
understand whether the governor would be forced to put that second
name up or whether they would start again.
REPRESENTATIVE COWDERY commented, "I believe if you had different
groups of the judicial council, you would have different names up
there. ... They wouldn't all necessarily pick the same one." He
indicated he didn't know whether candidates were rated for quality
or whether the names were just thrown in a hat for the governor to
choose. He informed members that he had to leave, as he had
another bill up in another committee.
CHAIRMAN GREEN inquired whether there were any quick questions
before Representative Cowdery left. He then asked Chris
Christensen if he had anything to add.
Number 0358
CHRIS CHRISTENSEN, Staff Counsel, Office of the Administrative
Director, Alaska Court System, came forward to testify, specifying
that he had received Representative Cowdery's letter only 15
minutes before. He said he believed Representative Cowdery had
done a good job of hitting the high points of the letter.
MR. CHRISTENSEN informed members that this was the first time,
literally in decades, that not only the chief justice but any judge
has actually shown up at a legislative committee to testify on a
piece of legislation. He said he believes that indicates the
importance the institution places on this particular piece of
legislation. He noted that HJR 47 doesn't affect anyone currently
on the bench, including Chief Justice Matthews. However, it would
affect the institution in the long term.
Number 0413
MR. CHRISTIANSEN told members that Representative Cowdery's letter
to the committee is a mixture of arguments interspersed with
personal attacks on the chief justice. He stated, "You all
remember, about three weeks ago, I appeared before you on HJR 44,
relating to reapportionment. And I said something then which I
think I should repeat now, and that is when partisan politics is at
issue, people are going to question your honor, and they're going
to question your motives, for no other reason than they happen to
disagree with you on an issue. And I think this letter makes that
point probably better than I did three weeks ago. If this is the
sort of thing that is circulated based on 15 minutes of testimony
once in several decades, I have to wonder what will happen in the
process when the names of lawyers are actually up in front of the
legislature."
Number 0478
REPRESENTATIVE ROKEBERG said, "When the chief justice was here
last, ... we had a discussion somewhat in the committee about the
philosophy of the Alaska Supreme Court, and he referred me to the
Albany Law Review article, which he was kind enough to transmit to
me, and I had a chance to read that." He recommended that members
read the article, and he asked if Mr. Christensen had done so.
MR. CHRISTENSEN affirmed that.
Number 0550
REPRESENTATIVE ROKEBERG asked him to explain the gist of that
article as it relates to the Alaska Supreme Court, its history, and
so-called new judicial federalism.
MR. CHRISTENSEN replied that he had read that article quite some
time ago.
REPRESENTATIVE ROKEBERG said, as he recalls, it was a state supreme
court looking at its own state constitution first, rather than at
the federal constitution unless that was in a superior position; he
offered the opinion that it would tend to color the tenor of the
particular state's court. He asked whether that is correct.
Number 0610
MR. CHRISTENSEN said he thinks that is accurate, and he believes
Alaska's supreme court has a history of looking not to what the
federal government is doing but to Alaska's constitution and laws.
That is very different from how many other supreme courts do it.
He suggested, however, that it is how most Alaskans want it to be
done. Mr. Christensen explained, "I think that the supreme court
really, in that respect, reflects some of the prevailing social
values we have in this state. The classic example of that is the
supreme court subsistence decision, where they said, 'We don't have
to listen to any federal court other than the U.S. Supreme Court;
they haven't spoken on this issue; our constitution says' -- and so
on. You've all read the opinion."
Number 0661
REPRESENTATIVE JAMES agreed that is what Alaska's judges look at,
and ought to look at. She commented on how often Alaskans have
amended the constitution since statehood, and she noted the number
of proposed amendments this year. She said it is a young
constitution, with a lot of things missing, which leads to being
more permissive than if there was more direction there. She
expressed support for the constitution, in all its details, but
said there is some merit to additional amendments.
Number 0727
REPRESENTATIVE BERKOWITZ read from the last paragraph of the law
review article, "From the foregoing examination of divided state
constitutional cases, it is clear that the Alaska Supreme Court is
quite independent. Whether utilizing a primary, interstitial or
dual-reliance approach to state constitutional adjudication, the
court's decisions are not tied to federal precedent." He said it
discussed some of the new justices, then further read, "Given the
independent and free-spirited character of the state of Alaska, the
Alaska Supreme Court is likely to remain true to its enduring,
autonomous style of decision making."
REPRESENTATIVE BERKOWITZ said he believes that is the strongest
argument they could have to leave it alone. He emphasized the
importance of having the institution and its independence endure,
noting that opinions ebb and flow. He suggested HJR 47 attacks the
very fundamental independence of the court. "And we ought to do
everything we can to protect that independence," he concluded.
Number 0848
REPRESENTATIVE ROKEBERG referred to a couple of cases he had read
relating to a so-called sliding scale test of constitutional
rights. He asked whether that is the correct term of art.
MR. CHRISTENSEN said he is not a constitutional law expert.
REPRESENTATIVE ROKEBERG said he understands that Alaska's supreme
court has an unusual test, in which there are gradations of
constitutionality, with a sliding scale of different types of
hurdles must be reached for certain types of circumstances, cases
and situations. He said he isn't certain how it works, but that he
believes it adds to the complexity of the judiciary in Alaska.
Number 0948
REPRESENTATIVE CROFT asked whether anyone else was scheduled to
speak.
CHAIRMAN GREEN said no.
REPRESENTATIVE CROFT told members, "To the extent that this renewed
interest in this bill, or the continued interest in this bill, is
a reaction to very recent cases that have come out of the Alaska
Supreme Court, if we have potential judicial candidates up before
this body, before the House as a whole, and ask them, 'How do you
feel about gay marriages,' they should answer, 'I haven't seen the
briefing, I don't know the facts, I haven't seen the arguments; ...
I cannot answer that question.'"
REPRESENTATIVE CROFT continued, "They would not be uncooperative.
In fact, that would be the only answer they could give: 'I'm not
going to prejudge the range of issues that you're concerned about;
it would be irresponsible to go off, without having some briefing
on the history, the facts, and the particular circumstances in
which it arises.' They should say, 'I can't answer that.' The
principled ones do on the federal level. We've largely created a
process where their history is open, but they're judged on their
merits. And to put them through simply a political wringer, I
don't think is going to achieve the result Representative Cowdery
wants; I don't think his result is the right one, even if it did."
Number 1031
REPRESENTATIVE ROKEBERG referred to previous mention of the chronic
problem in Congress with the timely confirmation of judges. He
said he had looked into this, and to his belief, there are
approximately 86 vacancies on the federal bench but only 42
nominations in the Senate. He then expressed his belief that the
chief justice had every right, and indeed a responsibility, to
speak to the committee on this. He said he has known Chief Justice
Matthews personally over 25 years, and that he is an extremely kind
gentleman, an excellent citizen of Alaska, and an excellent judge.
He noted that the Albany Law Review article assigns Chief Justice
Matthews as the "most conservative of all judges in the state of
Alaska."
REPRESENTATIVE ROKEBERG took exception to Representative Croft's
conclusions about that article, suggesting it is all the more
reason to ensure that those judges have had "advice, consent and
review by the legislative branch" before they are appointed, which
he believes is extremely important. He also disagreed with
Representative Croft that anyone being grilled for a confirmation
hearing should not speak to his or her particular viewpoint on an
issue. He said there has been a lot of discussion of this on the
federal level, and he believes it is appropriate to seek a person's
philosophy, mind and temperament as a judge. He said he doesn't
have a problem with that on the record, and he is going to vote for
this resolution.
Number 1233
REPRESENTATIVE PORTER mentioned another bill on this same topic or
something related, discussed in the House Finance Committee the
previous day. He then stated, "If we confirmed appointments to the
appellate bench, and brought them in, and asked them questions that
were important in our minds, and probably if it were today,
homosexuality would come up. The answer that Representative Croft
offered would, to me, be the answer that any prudent candidate for
... one of those positions would give. But of course, we're
clever, and so we'd get around that by saying, 'Well, okay, but we
don't care about the case, we want to know what you think about
homosexuality. Now, what do you think about it?' And he or she
would perhaps have to get pushed into a corner of saying what they
think about it."
REPRESENTATIVE PORTER continued, "And I guess the question is, 'So
what?' That kind of position is the position that we ask folks -
and I happen to have been in one for a long time - to set aside
what they personally think and go to work and make their decisions
based on their profession and based on the law. So I don't, quite
frankly, give a damn what they think about homosexuality. I want
to know if they're qualified to go through the process of coming up
with a decision that is intellectual, current and legal."
Number 1350
REPRESENTATIVE PORTER continued, "Yes, we have decisions that drive
me crazy, that are far afield from some other state's thinking or
some other appellate court's thinking. But at the same time, we
haven't - to my knowledge - ever had one that was based on anything
but a very, very astutely thought out point of view that I happen
to disagree with. And I can tell you, in systems where we have
elected judges or politically influence judicial appointments, you
can get a hell of a lot of other reasons for individual decisions."
REPRESENTATIVE PORTER continued, "I personally have got quite mixed
emotions about homosexuality, but as chief of police, I had to
furnish officers to escort the first gay rights parade in
Anchorage. I actually had about 3-to-2, officers over
participants. But regardless of how I or any of those other
officers felt about that particular parade or the participants, it
was a requirement to provide public safety. It is a requirement of
the court to provide interpretation of the law and decisions when
their responsibility calls for it. And I'd like that to be a
professional process, not a political process. So I can't support
this."
Number 1435
CHAIRMAN GREEN told members he thinks Representative Croft and
Representative Porter make compelling arguments. He said he sensed
HJR 47 probably wouldn't pass out of committee now, and he would
like to think about it a little more.
Number 1435
REPRESENTATIVE JAMES said she might as well bare her soul, too,
then stated, "I have a lot of concern with this bill. But ... my
concern is probably even different than what any of you have said.
It's because I've been watching this legislative process, and I've
been watching ... the bills that we have before us that are really
popular with the public. And Representative Cowdery said ... the
more hearings he had, the more support he could get for that. And
I've always been a really big supporter of the people's right; this
is a people's government. ... The people are the government. But,
by golly, you need to have some leadership. And if you let the
people make all the decisions of where you're going to go, they're
going to go in a ditch. And if we don't be sure that they get the
right things to vote on, we're abrogating our responsibility as
representatives. So, no matter how popular that an issue is with
the public - and I know this is popular ... with the public, and
I'll probably have some people in my district that say, 'Gosh,
what's the matter with you? Aren't you thinking?' - but somehow or
other, we have more information, we are more in tune with the
issues. And I think it is our responsibility to show leadership
and not defer to public opinion all the time. There's times when
you do, but there's times when you don't. I think this is one of
the times you don't."
[HJR 47 was held over.]
ADJOURNMENT
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:15 p.m.
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