Legislature(1999 - 2000)

02/24/1999 01:10 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         HOUSE JUDICIARY STANDING COMMITTEE                                                                                     
                 February 24, 1999                                                                                              
                     1:10 p.m.                                                                                                  
MEMBERS PRESENT                                                                                                                 
Representative Pete Kott, Chairman                                                                                              
Representative Joe Green                                                                                                        
Representative Norman Rokeberg                                                                                                  
Representative Jeannette James                                                                                                  
Representative Lisa Murkowski                                                                                                   
Representative Eric Croft                                                                                                       
Representative Beth Kerttula                                                                                                    
MEMBERS ABSENT                                                                                                                  
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                              
* HOUSE BILL NO. 67                                                                                                             
"An Act relating to release of certain persons alleged to have                                                                  
committed certain sexual offenses."                                                                                             
     - HEARD AND HELD                                                                                                           
* HOUSE BILL NO. 66                                                                                                             
"An Act making corrective amendments to the Alaska Statutes as                                                                  
recommended by the revisor of statutes; and providing for an                                                                    
effective date."                                                                                                                
     - MOVED CSHB 66(JUD) OUT OF COMMITTEE                                                                                      
* HOUSE BILL NO. 65                                                                                                             
"An Act making corrective amendments to the Alaska Statutes                                                                     
relating to certain repealed law as recommended by the revisor of                                                               
statutes; and providing for an effective date."                                                                                 
     - HEARD AND HELD                                                                                                           
(* First public hearing)                                                                                                        
PREVIOUS ACTION                                                                                                                 
BILL: HB  67                                                                                                                    
SHORT TITLE: BAIL HEARING FOR SEX OFFENDERS                                                                                     
SPONSOR(S): REPRESENTATIVES(S) ROKEBERG, Dyson                                                                                  
Jrn-Date    Jrn-Page           Action                                                                                           
 1/25/99        81     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/25/99        81     (H)  JUDICIARY, FINANCE                                                                                  
 2/12/99       210     (H)  COSPONSOR(S): DYSON                                                                                 
 2/24/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
BILL: HB  66                                                                                                                    
SHORT TITLE: 1999 REVISOR'S BILL                                                                                                
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL                                                                             
Jrn-Date    Jrn-Page           Action                                                                                           
 1/25/99        80     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/25/99        81     (H)  JUDICIARY                                                                                           
 2/17/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 2/17/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 2/24/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
BILL: HB  65                                                                                                                    
SHORT TITLE: SUPPLEMENTAL REVISOR'S BILL                                                                                        
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL                                                                             
Jrn-Date    Jrn-Page           Action                                                                                           
 1/25/99        80     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/25/99        80     (H)  JUDICIARY                                                                                           
 2/17/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 2/17/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 2/24/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
WITNESS REGISTER                                                                                                                
JANET SEITZ, Staff                                                                                                              
   to Representative Norman Rokeberg                                                                                            
Alaska State Legislature                                                                                                        
Capitol Building, Room 24                                                                                                       
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-4968                                                                                                      
POSITION STATEMENT: Testified on HB 67 as staff to prime sponsor.                                                               
ANNE D. 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: Testified on HB 67 on behalf of the Criminal                                                                
                    Division within the Department of Law.                                                                      
DOUG WOOLIVER, Administrative Attorney                                                                                          
Administrative Staff                                                                                                            
Office of the Administrative Director                                                                                           
Alaska Court System                                                                                                             
820 West 4th Avenue                                                                                                             
Anchorage, Alaska 99501-2005                                                                                                    
Telephone:  (907) 264-8265                                                                                                      
POSITION STATEMENT: Testified on HB 67 on behalf of the Alaska                                                                  
                    Court System.                                                                                               
JAMES CRAWFORD, Assistant Revisor                                                                                               
Legislative Legal Counsel                                                                                                       
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency                                                                                                      
130 Seward Street, Suite 409                                                                                                    
Juneau, Alaska 99801-2105                                                                                                       
Telephone:  (907) 465-2450                                                                                                      
POSITION STATEMENT: Testified on HB 66 and HB 65 as assistant                                                                   
                    revisor of statutes.                                                                                        
ACTION NARRATIVE                                                                                                                
TAPE 99-8, SIDE A                                                                                                               
Number 0001                                                                                                                     
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee                                                                
meeting to order at 1:10 p.m.  Members present at the call to order                                                             
were Representatives Kott, Green, Rokeberg, James, Murkowski, Croft                                                             
and Kerttula.                                                                                                                   
HB 67 - BAIL HEARING FOR SEX OFFENDERS                                                                                          
CHAIRMAN KOTT announced the first order of business is HB 67, "An                                                               
Act relating to release of certain persons alleged to have                                                                      
committed certain sexual offenses."                                                                                             
CHAIRMAN KOTT called on Representative Norman Rokeberg, sponsor of                                                              
the bill.                                                                                                                       
Number 0052                                                                                                                     
REPRESENTATIVE ROKEBERG explained the nature of this bill arose at                                                              
the request of a constituent due to the failure of notifying that                                                               
constituent's ability to testify before the court as required by                                                                
statute.  He explained the offender was released on bail then                                                                   
re-offended.  He called on Janet Seitz to explain further.                                                                      
Number 0210                                                                                                                     
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska State                                                              
Legislature, explained the constituent is the parent of a minor                                                                 
child who was sexually abused by a neighbor.  The victim's mother                                                               
was not notified of the bail hearing at which time she could have                                                               
testified.  At the hearing on whether or not to release the                                                                     
perpetrator the judge did not go along with the recommendation of                                                               
a 24-hour custodial supervision.  The perpetrator was released                                                                  
until sentencing that will occur sometime this month on a type of                                                               
loose supervision.  The perpetrator doesn't live next door to the                                                               
victim anymore, but the victim's mother is concerned and wants                                                                  
closer supervision for those accused of a sex offense against a                                                                 
Number 0303                                                                                                                     
REPRESENTATIVE ROKEBERG explained at first it seemed like a simple                                                              
exercise, but it really opens up for discussion the entire system                                                               
of implementing victims' rights under the state constitution with                                                               
the rights of the accused.  He explained the act of notification is                                                             
problematic because language in statute says either the law                                                                     
enforcement can give notice "or" the district attorney.  The                                                                    
Department of Law acknowledges its responsibility in giving notice,                                                             
but sometimes speedy arraignments don't allow for proper                                                                        
notification.  In this case, there was a plea change and instead of                                                             
going to superior court for a full bail hearing there wasn't enough                                                             
time for notification.  Consequently, Representative Rokeberg wants                                                             
to mandate a 24-hour supervision, but in doing so he has opened up                                                              
discussions on victims' rights versus the accused, timely                                                                       
notifications, and who is responsible for timely notifications.                                                                 
The intent of the bill is to make sure a victim has the ability to                                                              
make that victim's view known to the court.  He recognizes that                                                                 
there are speedy trial provisions in statute and fiscal impacts on                                                              
the Department of Corrections due to delays.  He also recognizes                                                                
that a provision to ensure a notification could upset the flow of                                                               
activity and proceedings of the court system.  He suggested taking                                                              
testimony from the Department of Law and holding the bill over for                                                              
further consideration.  He wants to ensure that the bill                                                                        
accomplishes its goal, but that it does not create other problems                                                               
or unintended consequences.                                                                                                     
CHAIRMAN KOTT announced for the record that all members were                                                                    
present at the call to order.                                                                                                   
Number 0550                                                                                                                     
REPRESENTATIVE JAMES stated she fails to see why the change of plea                                                             
and the quick decision put the offender out into society without                                                                
any supervision.  The fact that he plead guilty to the sexual                                                                   
assault of a minor alone ought to have triggered supervision.                                                                   
Number 0603                                                                                                                     
REPRESENTATIVE ROKEBERG replied the issue surrounds a subsequent                                                                
sentencing hearing.  The perpetrator had the right to bail prior to                                                             
Number 0623                                                                                                                     
REPRESENTATIVE CROFT noted the perpetrator had the right to bail as                                                             
long as the judge didn't find that that perpetrator posed a threat                                                              
to the victim or anybody else.  It is a condition of bail under any                                                             
REPRESENTATIVE JAMES stated she doesn't understand the decision                                                                 
made by the judge according to existing law.                                                                                    
REPRESENTATIVE ROKEBERG responded the point is the victim didn't                                                                
have a chance to make any of the circumstances known to the court                                                               
in order to impact the conditions of bail.                                                                                      
Number 0663                                                                                                                     
REPRESENTATIVE CROFT explained there seems to be three concepts                                                                 
involved here:  notification, testimony and supervision.  In other                                                              
words, notifying a victim of a hearing, listening to the testimony                                                              
and the problems of either requiring or not requiring a person to                                                               
testify, and determining supervision.  In this instance, there was                                                              
a breakdown in notification.  He doesn't know whether there is a                                                                
significant problem with letting a person testify or not, and he                                                                
doesn't know whether supervision should or shouldn't be tightened                                                               
Number 0710                                                                                                                     
REPRESENTATIVE ROKEBERG explained the court system has an opinion                                                               
on the issue of testimony and will suggest an amendment.                                                                        
Number 0751                                                                                                                     
REPRESENTATIVE MURKOWSKI referred to a murder trial in Fairbanks                                                                
whereby a victim's mother was not notified of when the jury's                                                                   
verdict was released.  After meeting with Janice Lienhart with                                                                  
Victims for Justice, it is her understanding that it is a practice                                                              
of the various judges as to whether or not a judge provides notice                                                              
to a victim.  According to Ms. Lienhart, there are certain judges                                                               
who are very conscientious and other judges simply "space it."                                                                  
Representative Murkowski announced she is now confused and curious                                                              
about notification requirements in general.                                                                                     
Number 0825                                                                                                                     
REPRESENTATIVE ROKEBERG referred to AS 12.61.010 and stated a crime                                                             
victim has the right to be notified of the date of trial,                                                                       
sentencing, including a proceeding before a three-judge panel, an                                                               
appeal, any hearing in which the defendant's release from custody                                                               
is considered, and the notification of a sentence hearing or court                                                              
Number 0850                                                                                                                     
REPRESENTATIVE MURKOWSKI stated a judge has the right to do it, but                                                             
if a judge forgets...                                                                                                           
REPRESENTATIVE ROKEBERG interjected and stated in this instance a                                                               
notification would have allowed the victim and/or guardian to                                                                   
indicate the need for 24-hour supervision, for example.                                                                         
Number 0879                                                                                                                     
REPRESENTATIVE KERTTULA noted it looks like AS 12.61.010 requires                                                               
that a victim be given notice, but it might not be happening                                                                    
REPRESENTATIVE ROKEBERG stated the problem is the language reads                                                                
"or".  The law enforcement agency "or" the prosecuting attorney can                                                             
give notice.  It might be a situation of "who's on first" in some                                                               
courts.  The Department of Law has indicated it has that                                                                        
responsibility, but sometimes there is a breakdown, especially when                                                             
a young attorney is faced with a stack of arraignment cases.  The                                                               
committee needs to consider whether that part of the statute needs                                                              
to be fixed.  That part of the statute is relatively new and                                                                    
clearly there are some problems that need to be massaged.                                                                       
Number 1015                                                                                                                     
REPRESENTATIVE CROFT stated there are certainly breakdowns, but it                                                              
can be very difficult to find these victims.  In other words, some                                                              
victims try not to be found because of the crime involved.  He                                                                  
suggested if notification is made into an absolute requirement then                                                             
there should also be language pertaining to reasonable efforts.                                                                 
Number 1078                                                                                                                     
REPRESENTATIVE ROKEBERG explained the bill is narrow in scope, but                                                              
it has opened up the notification issue and its application to any                                                              
kind of crime.  He referred to it as a judgement call and wondered                                                              
whether a fix should apply to all types of crimes, or focus on                                                                  
sexual offenses against minors.  Domestic violence cases should                                                                 
also be looked at because those cases can rise to the same level of                                                             
re-offense.  These are things the committee needs to look at while                                                              
at the same time considering the constitutional rights of victims                                                               
and the accused.                                                                                                                
Number 1172                                                                                                                     
REPRESENTATIVE CROFT referred to AS 12.61.015 and stated it spells                                                              
out the duties of the prosecuting attorney for felonies and                                                                     
domestic violence.  He suggested folding some of the sexual assault                                                             
of a minor language into that specific provision.                                                                               
Number 1201                                                                                                                     
REPRESENTATIVE ROKEBERG stated that suggestion will be brought up                                                               
by the Department of Law.                                                                                                       
Number 1247                                                                                                                     
ANNE D. CARPENETI, Assistant Attorney General, Legal Services                                                                   
Section-Juneau, Criminal Division, Department of Law, noted the                                                                 
division has been working with the sponsor and has some suggestions                                                             
regarding Section 3.  She took full responsibility on behalf of the                                                             
department for the lack of notification in the case involved.  The                                                              
department messed up and is sorry.  In general, however, she thinks                                                             
the department does a good job notifying victims.                                                                               
Number 1310                                                                                                                     
REPRESENTATIVE MURKOWSKI asked Ms. Carpeneti what the reasonable                                                                
efforts are that the department makes in notifying victims.                                                                     
MS. CARPENETI replied she would have to talk to the victim witness                                                              
coordinators for specifics.  It depends on the severity of the case                                                             
and the interest of the victim.  She knows that messages are left                                                               
at work and at home, and forms are given out.  It is tough,                                                                     
however, for the justice system to grind to a halt if contact can't                                                             
be made.  In the case of bail hearings and certain proceedings, it                                                              
is hard to anticipate in advance enough time to provide                                                                         
notification by mail so efforts are made by phone.                                                                              
Number 1359                                                                                                                     
REPRESENTATIVE CROFT asked Ms. Carpeneti whether the victim witness                                                             
coordinator she mentioned earlier is specifically charged with                                                                  
notifying victims.                                                                                                              
MS. CARPENETI replied there is a statewide victim assistance                                                                    
program including a coordinator, and there are people in the                                                                    
district attorneys office who do just that.  She explained this                                                                 
issue arose in the 1970's when money was provided by the federal                                                                
government and since then it has grown proportionally.                                                                          
Number 1429                                                                                                                     
CHAIRMAN KOTT asked Ms. Carpeneti how a victim who lives in the                                                                 
rural part of the state is notified when there is a short notice                                                                
for a bail hearing.                                                                                                             
MS. CARPENETI replied a person can testify via telephone and                                                                    
hearsay is acceptable at bail hearings.  A person can give a                                                                    
position to an advocate or district attorney and in turn relay it                                                               
to the judge.  In relation to the bill, the division has problems                                                               
with Section 3 because it requires a judge to solicit comments from                                                             
a victim.  She said, "We don't want to have to require victims who                                                              
don't want to appear in court come in, and especially children, and                                                             
make yet another traumatic appearance in front of the court."  She                                                              
suggested considering before the release of a person charged, a                                                                 
pending trial, a sentencing or an appeal, for the court to ask the                                                              
district attorney or a representative of the state whether or not                                                               
a victim has been notified or whether reasonable efforts have been                                                              
made.  At which time, if an oversight has been made it can be                                                                   
Number 1532                                                                                                                     
REPRESENTATIVE CROFT stated the suggestion goes only to the issue                                                               
of notification, and asked Ms. Carpeneti whether that would slow                                                                
things down.                                                                                                                    
MS. CARPENETI replied she thinks it would work and she doesn't                                                                  
think it would slow things down because generally victims will have                                                             
been notified as a matter of procedure.                                                                                         
Number 1590                                                                                                                     
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether an amendment is                                                             
needed to exclude the sex offense in Section 3.                                                                                 
MR. CARPENETI replied she is just addressing subsection (i) in                                                                  
Section 3.                                                                                                                      
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti to indicate for the                                                                 
record that the Department of Law takes responsibility for                                                                      
notifying victims in relation to the issue of notification between                                                              
law enforcement "or" prosecutors.  He also asked how the procedure                                                              
MS. CARPENETI replied the statute provides that everybody has a                                                                 
responsibility - the court system, law enforcement and prosecutors.                                                             
But, AS 12.61.015 gives the responsibility of various notifications                                                             
to the prosecuting attorney and the Department of Law takes that                                                                
responsibility for felonies and domestic violence cases.                                                                        
Number 1685                                                                                                                     
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,                                                                   
Office of the Administrative Director, Alaska Court System, stated                                                              
the court system has been working with the sponsor on the bill.                                                                 
His initial concern was the language "shall" in Section 3 because                                                               
not all victims want to comment leaving the question what should be                                                             
done when there is no one in court to solicit comments from.  The                                                               
court system suggests language saying "if a victim is present and                                                               
wishes to testify the judge shall solicit comments from that                                                                    
person" making it clear that the process doesn't have to stop if a                                                              
victim has chosen not to come to court and making it clear that a                                                               
judge has an affirmative duty to make sure that a victim is heard                                                               
from.  The suggested language, however, doesn't get to the issue of                                                             
notification.  He explained in many victims' rights provisions                                                                  
there are no obvious remedies.  For example, a defendant has a                                                                  
constitutional right to bail so the questions become, can a hearing                                                             
be put off until the victim is notified and/or at what point is an                                                              
offender's rights violated?  In addition, the courts are very                                                                   
familiar with reasonable efforts.  But, a reasonable effort creates                                                             
the issues/questions of bumping a case to the bottom of the day's                                                               
calendar, holding it over to the next day, and holding a defendant                                                              
when a case is bumped from a Friday to a Monday.  Those are the                                                                 
types of questions that the court system has been wrestling with in                                                             
working with the sponsor for a remedy.  The bill is aimed at a                                                                  
smaller class of cases, but the same problem arises in all cases                                                                
because the constitution grants people the right to attend and                                                                  
speak at these proceedings.  Whatever the remedy, it needs to                                                                   
consider the bigger issues involved not just the focus of the bill.                                                             
Number 1878                                                                                                                     
REPRESENTATIVE JAMES asked Mr. Wooliver in this case because the                                                                
perpetrator changed that perpetrator's plea whether the victim                                                                  
should have been notified of the hearing earlier.                                                                               
MR. WOOLIVER replied yes.  The notice provision still stands                                                                    
regardless of whether there is a change of plea.                                                                                
REPRESENTATIVE JAMES stated the change of plea should not have                                                                  
affected the outcome.                                                                                                           
MR. WOOLIVER responded right.                                                                                                   
Number 1920                                                                                                                     
REPRESENTATIVE CROFT explained the right to bail in the                                                                         
constitution is not absolute.  In other words, it is not a right to                                                             
bail, but a right to have bail considered based on certain                                                                      
MR. WOOLIVER replied there is a constitutional right to bail, but                                                               
there can be conditions set such as a dollar amount.  The only                                                                  
exception is for capital crimes, but there aren't capital crimes in                                                             
Alaska.  He reiterated everybody in the state is entitled to bail,                                                              
but they might not be able to meet the conditions.  It can't be                                                                 
denied, however.                                                                                                                
REPRESENTATIVE CROFT asked Mr. Wooliver whether bail can be denied                                                              
if that person is a clear danger to society or a victim.                                                                        
MR. WOOLIVER replied, "You couldn't just say 'no' bail."  However,                                                              
conditions can be set that are extremely restrictive.                                                                           
REPRESENTATIVE CROFT asked Mr. Wooliver to give an example of a                                                                 
restrictive condition other than money.                                                                                         
MR. WOOLIVER replied 24-hour surveillance by a third party                                                                      
custodian requiring the custodian to be with that person every                                                                  
waking and sleeping moment.                                                                                                     
Number 1999                                                                                                                     
REPRESENTATIVE CROFT asked Mr. Wooliver what the time limitations                                                               
are currently in constitution or statute.                                                                                       
MR. WOOLIVER replied a person is entitled to bail at that person's                                                              
first appearance before a judicial officer for felonies.  A victim                                                              
has the right to be notified and present at that person's hearing,                                                              
according to the state constitution.  A person can be arrested and                                                              
taken to a magistrate immediately for arraignment for misdemeanors.                                                             
Number 2041                                                                                                                     
REPRESENTATIVE CROFT stated the bail is set, but that person is not                                                             
necessarily released.  He asked Mr. Wooliver what is the typical                                                                
MR. WOOLIVER interjected and stated, according to his                                                                           
understanding, bail is set high in district court to hold a person                                                              
over until superior court where a true arraignment is held for                                                                  
felonies.  In superior court a person is notified of the charges                                                                
and offered a plea followed by a bail hearing.  Initially, a person                                                             
shows up at district court and under statute that is when bail has                                                              
to be set.                                                                                                                      
Number 2072                                                                                                                     
REPRESENTATIVE CROFT wondered whether a statute that says, "you                                                                 
cannot set bail until reasonable efforts have been made" would be                                                               
unconstitutional, but a statute that says, "you can set bail at no                                                              
less than one billion dollars, until reasonable efforts have been                                                               
made to notify the victim" would be constitutional.                                                                             
MR. WOOLIVER replied he is not sure.  There are also provisions                                                                 
pertaining to unreasonable bail.  A person has the right to meet                                                                
bail, particularly if that person isn't found to be extraordinarily                                                             
dangerous.  Under statute, those provisions can or must be                                                                      
considered by a judge.  They are not mandated.  He doesn't know                                                                 
whether the legislature can or cannot mandate a person charged to                                                               
be subject to an unreasonable bail.                                                                                             
REPRESENTATIVE CROFT asked Mr. Wooliver whether the legislature can                                                             
set a limit at all reasonable or not.  Does reasonable mean there                                                               
needs to be an individualized consideration? he further asked.                                                                  
MR. WOOLIVER replied he is not sure whether a specific amount can                                                               
be set in statute.                                                                                                              
REPRESENTATIVE CROFT asked Mr. Wooliver whether the practice of                                                                 
setting bail at the first adjudicative session is a statutory or                                                                
constitutional requirement.                                                                                                     
MR. WOOLIVER replied it is a statutory requirement, but he is not                                                               
sure if it reflects a certain constitutional requirement.                                                                       
Number 2173                                                                                                                     
REPRESENTATIVE KERTTULA stated, in looking at notes to the                                                                      
constitution, all circumstances would have to be looked at instead                                                              
of just setting pro forma bail.  She explained, normally, if a                                                                  
judge wants to set bail that can't be met that judge makes it                                                                   
cash-only and high enough to avoid a bondsman.                                                                                  
Number 2204                                                                                                                     
REPRESENTATIVE ROKEBERG stated, not having been a part of the court                                                             
system in any capacity, he is troubled by the comments coming from                                                              
the court's counsel regarding the unwritten rule of making a bail                                                               
unattainable to accommodate the flow of business.  There could be                                                               
an instance when a person could meet an "unattainable" bail.  He                                                                
reiterated he is uncomfortable with the assumption that a                                                                       
perpetrator is not going to get out by not meeting bail on a first                                                              
appearance.  He asked Mr. Wooliver what the time line is between                                                                
the arraignment and the next subsequent step.                                                                                   
Number 2270                                                                                                                     
MR. WOOLIVER replied he is not sure exactly when a perpetrator is                                                               
arraigned, but believes it is the next day.  A bail hearing can be                                                              
put off as well in order to find a third party custodian, for                                                                   
example.  In speaking with judges, however, victims have almost                                                                 
always been notified by that time.  The problem is with the initial                                                             
appearance in district court where an arraignment can happen                                                                    
immediately or within less than 24 hours.  The problem is not in                                                                
superior court.                                                                                                                 
Number 2313                                                                                                                     
REPRESENTATIVE ROKEBERG stated, in trying to find the point of                                                                  
mandating a notification, he suggests looking at a second bail                                                                  
hearing and placing conditions on a release.  It would minimize the                                                             
number of occurrences thereby dispensing the notification at the                                                                
first hearing, unless there's a constitutional requirement.  He                                                                 
explained he is trying to find a practical place in the chain of                                                                
events to perfect a notification without putting an undue burden                                                                
and cost on the system.                                                                                                         
Number 2343                                                                                                                     
CHAIRMAN KOTT stated it is his understanding that excessive bail is                                                             
unconstitutional which is why an unreasonable standard is used.  He                                                             
asked Mr. Wooliver whether that is also his understanding.                                                                      
MR. WOOLIVER indicated in the affirmative.                                                                                      
CHAIRMAN KOTT asked Mr. Wooliver whether there is a time limit                                                                  
established on the right to a speedy trial and whether a subsequent                                                             
bail hearing would have an effect on that provision.                                                                            
MR. WOOLIVER replied the speedy trial provision is 120 days.  It is                                                             
frequently backed up with motions, but that is the starting point.                                                              
Number 2384                                                                                                                     
REPRESENTATIVE GREEN asked Mr. Wooliver whether the constitutional                                                              
right to bail is prior to being found guilty.                                                                                   
MR. WOOLIVER replied there is a constitutional right to bail prior                                                              
to trial.  Most provisions after trial and prior to sentencing are                                                              
statutory.  However, there is no constitutional right to be                                                                     
released after conviction.                                                                                                      
Number 2414                                                                                                                     
REPRESENTATIVE GREEN wondered whether the problem could be fixed in                                                             
MR. WOOLIVER replied in the affirmative.                                                                                        
Number 2420                                                                                                                     
CHAIRMAN KOTT referred to the language, "a judicial officer shall                                                               
solicit comments", and asked Mr. Wooliver whether this could turn                                                               
into a mini-trial with cross-examination of the victim.                                                                         
MR. WOOLIVER replied if a victim is sworn in to testify that victim                                                             
is subject to cross-examination.  However, frequently a victim will                                                             
offer a statement over the phone or in the form of a letter, and in                                                             
that case it won't turn into a trial.                                                                                           
Number 2457                                                                                                                     
REPRESENTATIVE CROFT asked Mr. Wooliver whether this issue has come                                                             
up in any other state.                                                                                                          
MR. WOOLIVER replied as the result of researching case law and                                                                  
reviews, he has only found references to the problems, but he                                                                   
hasn't seen resolutions to the problems.                                                                                        
TAPE 99-8, SIDE B                                                                                                               
Number 0001                                                                                                                     
REPRESENTATIVE ROKEBERG states he feels like he owes the committee                                                              
an apology for bringing forward this issue.  But, an individual has                                                             
been injured by a system with faults, and those faults are not                                                                  
small, technical corrections but a function of having to look at                                                                
the entire judiciary system and how it relates to victims' rights.                                                              
Number 0049                                                                                                                     
REPRESENTATIVE JAMES asked Mr. Wooliver what kind of cure is there                                                              
for the victim since that victim's rights were not effected.                                                                    
MR. WOOLIVER replied that is the crux of the problem.  The law                                                                  
knows how to deal with violations of defendants' rights, but it is                                                              
not familiar with victims' rights.  Victims have always be a part                                                               
of the process, but not as a legal entity.  When a defendant's                                                                  
rights are violated, the remedies are well established and not hard                                                             
to find.  But, when a victim's rights are violated a prosecution or                                                             
court's offenses can't be held against the defendant.  He said,                                                                 
"You can't take that out on the defendant by saying okay well the                                                               
prosecution just simply has refused to notify the victim so you                                                                 
have to stay in jail.  That isn't an option."  Short of creating                                                                
civil penalties against the state, he doesn't know what kind of                                                                 
remedies there are for those types of violations.                                                                               
Number 0128                                                                                                                     
REPRESENTATIVE JAMES noted the issue begs for a solution,                                                                       
particularly if a victim is re-victimized due to the failure of a                                                               
notification.  She asked Mr. Wooliver whether he agrees that the                                                                
statutes are just missing those conditions and should they be                                                                   
MR. WOOLIVER replied the statutes are the appropriate place for a                                                               
remedy, if someone can come up with one.  It might be easier,                                                                   
however, to try to reduce the instances of failure, such as                                                                     
providing more resources for victim advocates within the Department                                                             
of Law.                                                                                                                         
Number 0174                                                                                                                     
REPRESENTATIVE JAMES asked Mr. Wooliver whether there is a                                                                      
provision that wouldn't allow a hearing to go forward providing                                                                 
that a victim hasn't been notified.                                                                                             
MR. WOOLIVER replied according to some judges that he talked to a                                                               
hearing could be held off until the next day for example.  None of                                                              
the judges were clear about whether that is allowed, however.                                                                   
There isn't an obvious answer provided in case law.  He reiterated                                                              
judges are very familiar with the reasonable-effort standard.                                                                   
Number 0240                                                                                                                     
REPRESENTATIVE JAMES commented putting victims' rights in                                                                       
constitution has more force than statute, and stated a solution to                                                              
this issue has to be found.                                                                                                     
MR. WOOLIVER stated some of these rights have been in statute for                                                               
a long time and they aren't just statutes anymore.  In other words,                                                             
a person has a constitutional right to be allowed to attend these                                                               
Number 0261                                                                                                                     
CHAIRMAN KOTT asked Mr. Wooliver, when soliciting comments from a                                                               
victim, whether it is satisfactory to notify that victim's guardian                                                             
if underage.                                                                                                                    
MR. WOOLIVER replied he is not sure how it works in practice.                                                                   
There is confusion because the definition of "victim" in statute is                                                             
a minor or parent or guardian.  It is not clear whether that means                                                              
"or" or "and".  For example, if a minor wants to speak but the                                                                  
mother won't allow that minor to speak, it isn't clear in statute                                                               
whether the victim is the minor "or" mother, or the minor "and" the                                                             
mother.  There is also a problem when there is conflicting                                                                      
testimony.  He doesn't know, therefore, whether notifying a minor                                                               
is adequate or whether the parent or guardian would also have to be                                                             
Number 0321                                                                                                                     
CHAIRMAN KOTT commented this could be a tangled mess when for                                                                   
example a victim is a daughter, the perpetrator is a father, and                                                                
the mother is in love with the father and doesn't want to do                                                                    
anything to harm that relationship.                                                                                             
Number 0341                                                                                                                     
REPRESENTATIVE ROKEBERG asked Mr. Wooliver whether there is                                                                     
anything in statute now or even as a matter of court rule to force                                                              
a judge to ask whether reasonable efforts have been made to contact                                                             
a victim.                                                                                                                       
MR. WOOLIVER replied no there is nothing required in statute or                                                                 
court rule even though it is the practice of some judges.                                                                       
REPRESENTATIVE ROKEBERG replied the word "some" judges is the point                                                             
he wants to make.  He asked Mr. Wooliver whether mandating that is                                                              
going in the right direction.                                                                                                   
MR. WOOLIVER replied yes.                                                                                                       
Number 0381                                                                                                                     
REPRESENTATIVE GREEN stated, in reference to Representative                                                                     
Rokeberg's apology to the committee, often times the wheels of                                                                  
justice and the wheels of this committee grind slow and fine.  That                                                             
is good, however, because is educates the committee members who are                                                             
not lawyers and creates better laws.                                                                                            
Number 0415                                                                                                                     
REPRESENTATIVE MURKOWSKI noted that paychecks used to be held if an                                                             
opinion was not released within six months in an effort to not get                                                              
judges to sit on cases.  She stated that might by a type of                                                                     
incentive a judicial officer needs.                                                                                             
Number 0480                                                                                                                     
CHAIRMAN KOTT announced that the committee is waiting for the                                                                   
mother of the victim to testify via teleconference.                                                                             
CHAIRMAN KOTT called for a brief at-ease at 1:08 p.m. and called                                                                
the meeting back to order at 1:12 p.m.                                                                                          
CHAIRMAN KOTT explained the committee has made a reasonable effort                                                              
to contact the victim's mother and unfortunately she is not                                                                     
CHAIRMAN KOTT announced it is his intent to hold the bill over for                                                              
further consideration.                                                                                                          
REPRESENTATIVE ROKEBERG pledged his desire to work further on the                                                               
bill and to schedule time to invite the victim's mother to testify.                                                             
He would like to get her testimony on record.                                                                                   
REPRESENTATIVE JAMES wondered whether there should be a                                                                         
determination of exactly who the victim is and who has the right to                                                             
speak.  It needs to be determined ahead of time and should be part                                                              
of a fix to this issue.                                                                                                         
CHAIRMAN KOTT agreed and stated it needs to be delineated clearly.                                                              
CHAIRMAN KOTT announced the bill will be held over for further                                                                  
HB 66 - 1999 REVISOR'S BILL                                                                                                     
CHAIRMAN KOTT announced the next order of business is HB 66, "An                                                                
Act making corrective amendments to the Alaska Statutes as                                                                      
recommended by the revisor of statutes; and providing for an                                                                    
effective date."                                                                                                                
CHAIRMAN KOTT called on James Crawford, assistant revisor of                                                                    
statutes, to present the bill.                                                                                                  
Number 0627                                                                                                                     
JAMES CRAWFORD, Assistant Revisor, Legislative Legal Counsel,                                                                   
Legislative Legal and Research Services, Legislative Affairs                                                                    
Agency, noted the revisor's bill is written under the authority of                                                              
AS 01.05.036.  He explained HB 66 is cut and dry and he intends to                                                              
only speak to a couple of the more interesting sections.  Firstly,                                                              
he announced he has an amendment (Amendment 1) to offer.  It                                                                    
addresses a problem relating to executive and legislative ethics                                                                
and campaign finance laws.  It changes AS 15.13.116(a) from (a)(5)                                                              
to (a)(4) because of the removal of (a)(2) correcting a                                                                         
cross-reference.  The amendment also corrects a typographical error                                                             
to page 14, line 18.  The amendment also removes a repealer that                                                                
has the effect of adding a tract of land to the Yakataga State Game                                                             
Refuge.  The tract in question is referred to as Cape Suckling.                                                                 
The tract was a subject of litigation involving the commissioner of                                                             
the Department of Natural Resources and the University of Alaska                                                                
regarding timber rights in Cape Suckling and the fair market value.                                                             
The settlement agreement transferred the university's timber rights                                                             
from Cape Suckling to other land.  Therefore, there couldn't be an                                                              
agreement on the fair market value and the sections in questions                                                                
couldn't have the effect of adding land to the game refuge.                                                                     
However, in agreement with updated information from the attorney                                                                
involved, it is not an irrevocable transfer.  There is a 20 year                                                                
window during which certain escape clauses can operate to revest                                                                
the timber interest.  In other words, the sections are not dead,                                                                
but merely dormant.  The revisor feels, therefore, that it is                                                                   
inappropriate to repeal those sections and recommends removing the                                                              
MR. CRAWFORD started to explain the bill.  He noted Section 6                                                                   
amends a definition section that relates to the Uniform Probate                                                                 
Code (UPC) in Title 13.  It was subject to a series of amendments                                                               
in chapters 75, SLA 1996 in order to bring Title 13 in-line with                                                                
the national UPC.  At that time, the UPC definition of "person" was                                                             
not added to Title 13.  It was left out because the general                                                                     
definition of "person" in Title 1 was thought to be identical to                                                                
the UPC definition when in fact the UPC definition specifically                                                                 
mentions "government or governmental subdivision or agency" not                                                                 
found in Title 1.                                                                                                               
Number 0924                                                                                                                     
REPRESENTATIVE CROFT asked Mr. Crawford to explain Sections 2 and                                                               
3 of the bill.                                                                                                                  
MR. CRAWFORD replied Sections 2 and 3 amend AS 09.44.040 and                                                                    
09.55.069, respectively, to reflect the appeal of the relief fund                                                               
that those sections reference.  The fund was repealed about 30                                                                  
years ago.                                                                                                                      
MR. CRAWFORD continued explaining the bill.  Section 12 amends AS                                                               
24.60.050(d) which relates to deadlines for filing certain                                                                      
disclosures for legislators and legislative employees.  Subsection                                                              
(c) was amended last year and subsection (d) was not due to an                                                                  
oversight.  Subsection (c) and (d) have always had the same date                                                                
Number 1069                                                                                                                     
REPRESENTATIVE GREEN made a motion to adopt Amendment 1                                                                         
(1-LS0339\A.1, Crawford, 2/23/99).  There being no objection, it                                                                
was so adopted.                                                                                                                 
Number 1088                                                                                                                     
REPRESENTATIVE GREEN made a motion to move HB 66, as amended, from                                                              
the committee with individual recommendations and the attached zero                                                             
fiscal note.  There being no objection, CSHB 66(JUD) was so moved                                                               
from the House Judiciary Standing Committee.                                                                                    
HB 65 - SUPPLEMENTAL REVISOR'S BILL                                                                                             
Number 1126                                                                                                                     
CHAIRMAN KOTT announced the next order of business is HB 65 "An Act                                                             
making corrective amendments to the Alaska Statutes relating to                                                                 
certain repealed law as recommended by the revisor of statutes; and                                                             
providing for an effective date."                                                                                               
CHAIRMAN KOTT called on James Crawford, assistant revisor of                                                                    
statutes, to present the bill.                                                                                                  
MR. CRAWFORD explained there are five substantive sections in HB 65                                                             
that relate to an Act passed in 1994 and in the same year repealed.                                                             
In this case they were conflicting bills.  He explained chapters 45                                                             
and 124, SLA 1994 added references to a statute while chapter 118,                                                              
SLA 1994 repealed that statute.  The bill attempts to correct the                                                               
problem in a manner consistent with legislative intent connected to                                                             
chapters 45 and 125, SLA 1994.                                                                                                  
MR. CRAWFORD explained Sections 1, 2, 4 and 5 address chapter 45,                                                               
SLA 1994 pertaining to certain elderly and disabled adults and                                                                  
minors who receive home care services or who might receive those                                                                
services in the near future.  The legislative intent was to                                                                     
increase protection and protect them against fraud.  The event that                                                             
led to this issue related to an elderly woman who was robbed by a                                                               
home care provider for $500.  That provider also accessed the                                                                   
woman's financial accounts.  The legislature through chapter 45                                                                 
added a criminal records check requirement prior to certain                                                                     
entities receiving state funds.  Under AS 12.62.035, a requester                                                                
would get information on three categories:  convictions for                                                                     
felonies, crimes involving any contribution to the delinquency of                                                               
a minor, and convictions for sex crimes.  The statute was repealed                                                              
and a new one enacted - AS 12.62.160.  The solution replaces the                                                                
term "records" with the term "criminal justice information" and                                                                 
replaces the reference to AS 12.62.160.  The new statute is not an                                                              
exact match to the old statute, however.  In other words, those who                                                             
request records could get more information, but it is consistent                                                                
with legislative intent.                                                                                                        
Number 1410                                                                                                                     
MR. CRAWFORD explained Section 3 is slightly different.  It                                                                     
contains a reference to chapter 124, SLA 1994 that only contains                                                                
one of three categories of records.  He noted the legislative                                                                   
history wasn't helpful in determining intent for chapter 124, but                                                               
he was able to conclude from language in the statute itself that                                                                
the intent was to keep the scope more narrow.  The solution                                                                     
replaces the term "sex crimes" with the definition of sex crimes                                                                
found in the old repealed statutes.  In other words, there is no                                                                
change in Section 3 between the suggested solution and what was                                                                 
under the old reference.                                                                                                        
MR. CRAWFORD stated, in summary, some of the solutions are not a                                                                
perfect fit with respect to the old statute, but are consistent                                                                 
with legislative intent to the extent that legislative history                                                                  
revealed it.                                                                                                                    
Number 1510                                                                                                                     
REPRESENTATIVE GREEN asked Mr. Crawford, based on his research,                                                                 
whether the issue was addressed by the same committees or whether                                                               
there were two different groups involved causing the oversight.                                                                 
MR. CRAWFORD replied yes chapters 45 and 124, SLA 1994 which added                                                              
the reference didn't go through the same committees.                                                                            
Number 1550                                                                                                                     
REPRESENTATIVE GREEN stated normally there is a clear track to                                                                  
follow when addressing a revisor statute, but in this case Mr.                                                                  
Crawford had to build a bridge of his own.                                                                                      
MR. CRAWFORD replied correct.  The solution depended on an analysis                                                             
of legislative history requiring an extrapolation.  He justified                                                                
placing it in a revisor's bill because it tracks legislative intent                                                             
and attempts to do what the legislature would have done if it had                                                               
been aware of the problem.                                                                                                      
Number 1612                                                                                                                     
REPRESENTATIVE GREEN wondered whether an advisor's authority to                                                                 
make changes versus changes made by the legislature requires some                                                               
"walls" in this case.                                                                                                           
MR. CRAWFORD responded the revisor's bill is a service to                                                                       
legislators and if there is anything that causes concern it is a                                                                
legislator's prerogative to remove it and await a solution in a                                                                 
substantive bill.                                                                                                               
Number 1676                                                                                                                     
REPRESENTATIVE GREEN stated he is not suggesting that.  He is                                                                   
concerned about establishing a precedent.                                                                                       
MR. CRAWFORD replied certainly.                                                                                                 
Number 1689                                                                                                                     
REPRESENTATIVE CROFT asked Mr. Crawford to review the scopes that                                                               
have changed in Sections 4 and 5.                                                                                               
MR. CRAWFORD replied Sections 1,2,4 and 5 are not specific enough                                                               
to request national level criminal justice information records                                                                  
according to the Department of Public Safety.  The sections give a                                                              
category of records more or less similar to what the old statute                                                                
gave, but not exactly.  In some situations it won't be close and in                                                             
some cases more information will be given, such as a person's bail                                                              
status, a reversal of a conviction notice, or acquittal                                                                         
Number 1840                                                                                                                     
REPRESENTATIVE CROFT asked Mr. Crawford why the same scope can't be                                                             
asked for.                                                                                                                      
MR. CRAWFORD replied it can, but in looking at the legislative                                                                  
intent he came down on being more protective of the individuals the                                                             
legislators were trying to protect.  As an alternative, he can try                                                              
to reproduce what the old statute would have given in consultation                                                              
with the Department of Public Safety.                                                                                           
Number 1940                                                                                                                     
REPRESENTATIVE KERTTULA asked Mr. Crawford what exactly is the                                                                  
revisor's authority in statute.                                                                                                 
MR. CRAWFORD read part of AS 01.05.036.                                                                                         
REPRESENTATIVE KERTTULA commented the statute is broader than she                                                               
thought.  She further noted that she has never seen this type of                                                                
substantive change in a revisor's bill requiring verbal information                                                             
from people in order to come up with intent.  The court uses the                                                                
plain language of the statute before going behind it.  Perhaps, a                                                               
committee bill should be considered.                                                                                            
Number 2063                                                                                                                     
CHAIRMAN KOTT agreed with Representative Kerttula.  He doesn't                                                                  
recall a revisor's bill being this substantive.  It really is more                                                              
of a policy call than just notations and changes of previous                                                                    
actions that went unnoticed.  He would tend to support a committee                                                              
bill or have Mr. Crawford go back with the Department of Public                                                                 
Safety and craft a bill reflecting the earlier piece.                                                                           
Number 2115                                                                                                                     
REPRESENTATIVE GREEN asked Mr. Crawford what sort of effort would                                                               
it take to re-create a bill versus starting over.                                                                               
MR. CRAWFORD replied it would be a lot easier to craft a                                                                        
substantive bill rather than re-create legislative intent.  He                                                                  
explained he chose a revisor's bill to present the options early in                                                             
the legislative session.  He reiterated if there is any reason to                                                               
feel uncomfortable a substantive bill is the better way to go.                                                                  
CHAIRMAN KOTT noted his appreciation for Mr. Crawford's efforts.                                                                
REPRESENTATIVE MURKOWSKI praised Mr. Crawford's efforts in                                                                      
researching legislative intent and noted that he will be around to                                                              
testify on a substantive bill.                                                                                                  
Number 2286                                                                                                                     
CHAIRMAN KOTT announced it is his intent to hold the bill over and                                                              
to work on a substantive bill.  He suggested asking the chairman of                                                             
the House Health, Education and Social Services Committee to take                                                               
this on and if that committee is not willing to maybe the House                                                                 
Judiciary Committee should take it on.                                                                                          
Number 2291                                                                                                                     
REPRESENTATIVE CROFT suggested directing Mr. Crawford to draft a                                                                
more narrow bill to match the specific crimes covered in the                                                                    
original bill.                                                                                                                  
CHAIRMAN KOTT replied according to Mr. Crawford he would rather see                                                             
a substantive bill crafted than spend time reconstructing intent.                                                               
It would be cleaner as well.                                                                                                    
Number 2365                                                                                                                     
REPRESENTATIVE GREEN asked Chairman Kott whether there is a reason                                                              
for having the House Health, Education and Social Services                                                                      
Committee take it on rather than the House Judiciary Committee.                                                                 
CHAIRMAN KOTT replied he doesn't have a problem with drafting it as                                                             
a House Judiciary Committee bill.                                                                                               
Number 2419                                                                                                                     
MR. CRAWFORD stated he remains neutral and will do whatever the                                                                 
committee directs him to do.                                                                                                    
CHAIRMAN KOTT announced he will have Legislative Legal Counsel                                                                  
draft a bill and run it by Mr. Crawford to ensure that the intent                                                               
has been captured.                                                                                                              
MR. CRAWFORD replied he would be happy to give an assessment and                                                                
explained because it will be a substantive bill it is not                                                                       
constrained by the 1994 legislative intent.                                                                                     
Number 2503                                                                                                                     
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee                                                                  
meeting at 2:46 p.m.                                                                                                            
[THE ADJOURNMENT WAS NOT RECORDED ON TAPE]                                                                                      

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