Legislature(1997 - 1998)
03/04/1998 01:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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, 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.