Legislature(1997 - 1998)

03/04/1998 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ 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                                                                  
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                                                                  
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.,                   
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                
     "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                
     "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                
     "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                
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             
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                     
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                     
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               
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              
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                  
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                     
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                    
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                
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             
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                  
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             
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             
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              
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                
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               
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             
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.]                                                        
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee                
meeting at 3:15 p.m.                                                           

Document Name Date/Time Subjects